Carpio-Morales v.
Court of Appeals reconsideration of the assailed CA issuance , is the Ombudsman
G.R. Nos. 217126-27
10 November 2015
PERLAS-BERNABE, J.
FACTS:
Binay JR. and other public employees and officers of Makati were
accused of Plunder and RA 3019 in connection with the Procurement
and construction of the Makati City Hall Parking Building. The
Ombudsman then conducted fact-finding, submitted an investigation
report and filed a complaint charging Binay JR. with six
Administrative cases for Grave Misconduct, Serious Dishonesty and
Conduct prejudicial to the best interest of the service and six criminal
cases for violation of Section e of RA 3019, Malversation of Public
Funds and Falsification of Public Documents. The Ombudsman then
placed Binay under preventive suspension for not more than six
months.
Proceedings before the CA
Binay Jr. then filed a petition for certiorari before the CA seeking a
nullification of the preventive suspension order and praying for the
issuance of a TRO and/or WPI to enjoin its implementation. He also
alleged that he could not be held administratively liable for various
reasons including his opinion that his re-election as Mayor of Makati
for a second term effectively condoned his administrative liability.
The TRO was eventually granted. A petition for contempt was also
filed by Binay against the Ombudsman and various other officials for
deliberately refusing to obey the CA and the CA then gave due to
course to the petition for contempt and directed the Ombudsman to
file her comment.
Both parties filed their respective comments and the Ombudsman
pleaded that the Court abandon the Condon action doctrine, the
case was then submitted to the Court for resolution.
(1) Whether or not the present petition and not motions for
plain, speedy and adequate remedy. (NO)
(2) Whether or not the CA has subject matter jurisdiction over the
main petition for certiorari. (YES)
(3) Whether or not the CA has subject matter jurisdiction to issue a
TRO and/or WPI enjoin in the implementation of a preventive
suspension order issued by the Ombudsman. (YES)
(4) Whether or not the CA gravely abused its discretion in issuing
the TRO and eventually WPI enjoin in the implementation of the
preventive suspension order against Binay Jr. based on the
condonation doctrine. (NO)
(5) Whether or not the CA’s directive for the Ombudsman to
comment on Binay Jr. petition for contempt is improper and
illegal. (Premature Issue)
HELD/RATIO:
FIRST ISSUE:
A direct resort to certiorari is allowed in in this case. As a general
rule a motion for reconsideration must first be filed with the lower
court prior to resorting to certiorari since a motion for
reconsideration
can still be considered as a plain, speedy and adequate remedy in
the ordinary course of law.
However, there are certain exceptions to this general rule:
j) Where the order is a patent nudity such as when the court a quo
has no jurisdiction.
k) Where the questions raised in the certiorari proceedings have
been duly raised and passed upon by the lower court.
l) Where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of
the Government or of the petitioner or the subject matter of the
action is perishable.
m) Where under the circumstances a motion for reconsideration
would be useless.
n) Where petitioner was deprived of due process and there is
extreme urgency for relief.
o) Where in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable
p) Where the proceedings in the lower court are a nullify for lack of
due process.
q) Where the proceedings were ex parte or in which the petitioner
had no opportunity to object.
r) Where the issue raised is one purely of law or where public
interest is involved.
In this case, there is an urgent necessity for the resolution of the
question and the public interest is involved. The cases involves both
constitutional and statutory limits of the Office of the Ombudsman,
the Legislature and the Judiciary and the propriety of the continuous
application of the condonation doctrine thus it involves an issue of
transcendental public importance. Thus the Ombudsman direct
resort to certiorari and prohibition is justified even though no motion
for reconsideration was filed.
SECOND ISSUE:
The CA has jurisdiction over the subject matter. The Ombudsman
argument that the CA lacks jurisdiction over the subject matter is
based on Section 14, RA 6770 or the Ombudsman Act. The same
states:
Section 14. Restrictions.- No writ of injunction shall be issued by
any
court to delay an investigation being conducted by the Ombudsman
under this Act, unless there is a prima face evidence that the subject
matter of the investigation is outside the jurisdiction of the Office of
the Ombudsman.
No court shall hear any appeal or application for remedy against the
decision or findings of the Ombudsman, except the Supreme Court,
on pure questions of law.
The general rule is that the second paragraph of Section 14, RA
6770 bans the whole range of remedies against issuance of the
Ombudsman by prohibiting both an appeal against any decision or
finding of the Ombudsman and any application of remedy against the
same except for decisions or findings taken to the Supreme Court on
pure questions of law, in other words a Rule 45 petition. A rule 45
appeal can only be taken against final decisions or orders of lower
courts and not against “findings” of quasi judicial agencies including
the Office of the Ombudsman. The case of Fabian v. Desert provides
that increasing the appellate jurisdiction of the Court without its
advice and concurrence is in violation of Section 30, Article VI of
the
1987 Constitution. Section 14 of RA 6770 attempts to effectively
increase the Supreme Court Appellate Jurisdiction without its advice
and concurrence, therefore it is concluded that the second paragraph
of Section 14 of RA 6770 is unconstitutional.
In this case a rule 65 petition for certiorari was filed by Binay Jr
before the CA to nullify the preventive suspension order issued by
the Ombudsman. Daan v. Office of the Ombudsman stated that while
a special civil action for Certiorari is within the concurrent original
jurisdiction of the Supreme Court and the Court of Appeals, such
petition should be initially filed with the CA in observance of the
doctrine of hierarchy of courts. Several cases also ruled that a Rule
65 petition is the remedy against final and unappealable orders of
the Office of the Ombudsman. Since Section 14 of RA 6770 was
declared unconstitutional it is concluded that the CA had subject
matter jurisdiction over the petition.
THIRD ISSUE:
The CA has subject matter jurisdiction to issue a TRO and/or WPI
enjoin in the implementation of the a preventive suspension order
issued by the Ombudsman. The Ombudsman argued that the first
paragraph of Section 14 of RA 6770 in conjunction with the offices
independence under the 1987 Constitution insulated the said Office
from judicial intervention. The constitution envisions the
Ombudsman
as an authority to directly check and guard against the ills, abuses
and excesses, of the bureaucracy.
From the case of Gonzales III the concept of the Ombudsman
independence covers three things:
4. Creation by the Constitution which means that the Office cannot
be abolished nor its constitutionally specified functions and
privileges be removed, altered or modified by law unless the
Constitution itself allows, or an amendment thereto is made
5. Fiscal Autonomy which entails freedom to use and dispose its
funds for purposes germane to its function.
6. Insulation from executive supervision and control which means
that those within the ranks of the Office can only be disciplined
by internal authority.
However, the concept of Ombudsman independence cannot be
invoked to insulate the Ombudsman from judicial power
constitutionally vested unto the courts. This is because the courts are
apolitical bodies which may apply justice to all. Thus the
Ombudsman is not exempt from judicial power.
Under Section 1, Article VIII of the 1987 Constitution the duty of the
courts of justice is to settle actual controversies involving rights
which are legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. This provision vests in the
Judiciary particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and the legislative
and to declare their acts invalid for lack or excess of jurisdiction
because of grave abuse of discretion.
Also, the Constitution gave the Court the power to promulgate rules
concerning the protection and enforcement of constitutional rights.
An example of this is the promulgation of the Rules of Court where
the provisional remedies of temporary restraining orders (TRO) and
writs of preliminary injunction (WPI) were provided.
In this particular case, the Court ruled that when Congress passed
the first paragraph of Section 14 of RA 6770, it took away the
courts’
power to issue a TRO or WPI to enjoin an investigation conducted
by
the Ombudsman, the Congress encroached upon the courts’
constitutional rule-making authority. This same act does not allow a
court to exercise its full functions.
ISSUE/S:
However, the Court considered the policy considerations behind the
first paragraph of Section 14 of RA 6770. Thus pending deliberation
on whether or not to adopt the same, The Court under its sole
authority over all matters of procedure, deemed it ineffective the
prohibition against courts other than the Supreme Court from issuing
provisional injunctive writs to enjoin investigations conducted by the
Office of the Ombudsman. Thus with Congress interfering with
matters of procedure without the consent of the Court, the CA had
the authority to issue the injunctive writs.
FOURTH ISSUE:
In this case the condonation doctrine was deemed abandoned
thus the TRO and the WPI of the CA was given no effect. The
purpose of a preventive suspension order is to prevent the official
who is being suspended from using the powers of his office to
influence witnesses or tamper with records which may be vital in the
prosecution of the case against him. In this case, the CA issued a
injunctive writ to nullify the preventive suspension order because in
its opinion, Binay Jr re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous
activities relative to the Makati Parking Building Project. The CA
found it sufficient that the application of the condonation doctrine
was
enough to enjoin the implementation of the preventive suspension
order.
The condonation doctrine originated from the 1959 case of Pascual
v. Hon. Provincial Board of Nevada Ecija. The ratio decidendi of the
condonation doctrine has 3 parts:
4. The penalty of removal may not be extended beyond the term in
which the public officer was elected for each term is separate
and distinct, also offenses committed or acts done during the
previous term are held not to furnish cause for removal.
5. An elective officials re-election serves as a condonation of
previous Misconduct, cutting the right to remove him for these
aforesaid acts.
6. The courts may not deprive the electorate who are assumed to
know the life and character of their candidates of their right to
elect officers.
The Court then concluded that condonation was adopted because
the legality of the doctrine was never tested against existing legal
norms. The 1987 Constitution provides that all public officers and
employees must be accountable to the people at all times and that
public office is a public trust. The LGC provides that an elective
official may be disciplined, suspended or removed from office for
disloyalty, culpable violation of the Constitution, Dishonesty,
oppression, Misconduct in office etc. The LGC also provides that
those officials removed from office as a result of an administrative
case are disqualified from running for any elective local office.
Through a reading of the 1987 Constitution and other laws including
the ones cited above, the Çourt concluded that the doctrine of
condonation is bereft of legal basis. Accountability is inconsistent
with the idea that an elective local officials administrative liability
for a
Misconduct committed during a prior term can be wiped off by the
fact that he was elected to a second term or another elective post.
There is no support to the statement in the case of Pascual that the
courts would be depriving the electorate of their right to elect their
officers if condonation were not to be sanctioned, in other words
there is no legal basis that election implied condonation. There is
also no presumption in any rule of law that the electorate upon
reelection
an official, have disregarded or forgave the officials faults.
The electorate rarely has full knowledge of a officials misdeeds
since plenty of corrupt acts are shrouded in secrecy. Condonation
cannot be subscribed to because it implied forgiveness, which
requires knowledge of the acts being forgiven for and in the absence
of knowledge of these acts there can be no condonation.
In conclusion the Court found no legal basis to continue to adopt the
condonation doctrine in our jurisdiction yet this abandonment was
deemed prospective in its application which means that only cases
after this one would be affected by the abandonment. This was also
done for the reason that judicial decisions applying or interpreting
the
laws or the Constitution until reversed shall form part of the legal
system of the Philippines.
FIFTH ISSUE:
It is still premature for the Court to rule on this issue. The
Ombudsman’s contention is that as an impeachable officer she
cannot be the subject of a charge for indirect contempt since this
penalty is criminal in nature and will result in her effective removal
from office. However, her being subjected to contempt proceedings
in the resolution, makes it clear that even thought she is still ordered
to comment, the CA has not necessarily given due course to Binay Jr
contempt petition. Thus in this comment, the Ombudsman may raise
her objections to the contempt proceedings and the CA may still opt
to not give due course to the same contempt proceedings. Absent
any indication that the contempt petition has been given due course
by the CA it would then be premature for the Court to rule on the
issue.