CARILLO, Pauline Angela D.

April 23, 2019

III-D, 2016-89465 Law on Local Governments

 Binay, Jr., et al.'s respective positions give them access to public

CARPIO VS COURT OF APPEALS records and allow them to influence possible witnesses; hence,
2015 | Perlas-Bernabe their continued stay in office may prejudice the investigation
relative to the cases filed against them.
FACTS
1. A complaint affidavit was filed by Bondal and Enciso before the Office 4. The Ombudsman directed the DILG (Roxas) to immediately
of the Ombudsman, against Binay Jr. and other public officers of the implement the preventive suspension order.
City Government of Makati, accusing them of Plunder and violation of the
Anti-Graft and Corrupt Practices Act. 5. Binay Jr. filed a petition for certiorari before the CA seeking the
nullification of the preventive suspension order and praying for the
2. The Ombudsman constituted a Special Panel of Investigators which issuance of a TRO/WPI to enjoin its implementation. He argues that 1)
filed 6 administrative cases for Grave Misconduct, Serious Dishonesty, and he could not be held administratively liable because these were
Conduct Prejudicial to the Best Interest of the Service, and 6 criminal cases undertaken before he was elected Mayor of Makati in 2010 and that his
for violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and reelection for a second term has effectively condoned his
Falsification of Public Documents, for his involvement in anomalous administrative liability; 2) the suspension order failed to show that the
activities attending the procurement and construction phases of the evidence of guilt presented against him is strong.
Makati Parking Building Project:
6. At 8:24 AM, the preventive suspension order was implemented by
 In his First Term (2010-2013), for issuing a Notice of Award of posting a copy on the wall of the Makati City Hall after failure to serve it
the Makati Parking Building Project to Hilmarc’s Construction personally as the points of entry were closed. At 9:47, Vice Mayor Pena
Corporation, executing the corresponding contract without the Jr. assumed office as Acting Mayor.
required publication and lack of architectural design, and
approving the release of the funds therefor in various amounts. 7. At 12NN of the same day, the CA granted Binay’s prayer for TRO,
 In his Second Term (2013-2016) for approving the release of applying the condonation doctrine. The Ombudsman manifested that
funds for the remaining balance of the 2012 contract with since the suspension order has already been implemented, there was no
Hilmarc amounting to P27M longer anything to restrain. As a response, Binay Jr. filed a petition for
contempt accusing the Ombudsman and other officials of wilfully and
3. Another Special Panel of Investigators was created to conduct a maliciously ignoring the TRO issued by the CA.
preliminary investigation and administrative adjudication. The
Ombudsman placed them under preventive suspension: 9. The Ombudsman filed a supplemental petition for certiorari arguing a)
that the condonation doctrine is irrelevant to the determination of
 The evidence of Binay Jr.’s guilt was strong given that (1) the whether the evidence of guilt is strong for purposes of issuing
losing bidders and members of the Bids and Awards Committee preventive suspension orders and b) that there is no condonation
of Makati City had attested to the irregularities attending the because the acts complained of were committed after his re-election in
Makati Parking Building project; (2) the documents on record 2013. In her Memorandum and Comment to Binay’s Memorandum, she
negated the publication of bids; and (3) the disbursement pleaded that the Court abandon the condonation doctrine.
vouchers, checks, and official receipts showed the release of
funds
CARILLO, Pauline Angela D. April 23, 2019
III-D, 2016-89465 Law on Local Governments

MAIN ISSUE and take positive and effective measures against graft and corruption."

I. Did the CA gravely abused its discretion in issuing the WPI/TRO B. Basis in our Jurisdiction
against the preventive suspension order? -- NO
The concept of public office is a public trust and the corollary
The basis of the issuance by the CA of the injunctive relief is the requirement of accountability to the people at all times, is plainly
condonation doctrine. It found that the Ombudsman can hardly impose inconsistent with the idea that an elective local official's administrative
preventive suspension against Binay Jr. given that his re-election in 2013 liability for a misconduct committed during a prior term can be wiped
as City Mayor of Makati, effectively condoned any administrative off by the fact that he was elected to a second term of office, or even
liability arising from the activities in relation to the Parking Building another elective post. If condonation would be allowed in this
Project from 2007-2013 and that even though there were still payments jurisdiction, then the same should have been provided by law under our
made after 2013, such were embraced by the condonation since the governing legal mechanisms. Therefore, inferring from this manifest
payments were made pursuant to contracts entered into before the re- absence, it cannot be said that the electorate's will has been abdicated.
election.
Election is not a mode of condoning an administrative offense, and
A. Origin of the Doctrine there is simply no constitutional or statutory basis in our jurisdiction
to support the notion that an official elected for a different term is fully
The Condonation Doctrine is not based on statutory law. It is a absolved of any administrative liability arising from an offense done
jurisprudential creation that originated from the 1959 case of Pascual v during a prior term. In this jurisdiction, liability arising from
Hon. Provincial Board of Nueva Ecija. As there was no legal precedent on administrative offenses may be condoned only by the President
the issue at that time, the Court, resorted to American authorities. (executive clemency).
However, the Court has now uncovered that there really is no
established weight of authority in the US, favoring condonation because There should also be no presumption that the electorate knows the life,
at least 17 States have abandoned the doctrine. the character and the faults of the local official when they re-elect him.
It is contrary to human experience that the electorate would have full
Even without exegesis of the debate on condonation (difference in knowledge of a public official's misdeeds. The Ombudsman correctly
American jurisprudence over factors such as the language of the statute, points out the reality that most corrupt acts by public officers are
the existence of a successor, the continuing nature of the offense), an shrouded in secrecy, and concealed from the public. Thus, there could
outright adoption of the doctrine in our jurisdiction would not have been be no condonation of an act that is unknown.
proper. Pascual was a decision promulgated in 1959. Therefore, it was
decided within the context of the 1935 Constitution which was silent C. Prospective Application
with respect to public accountability. With the advent of the 1973
Constitution, the new charter introduced Article XIII. Section 1 thereof The Court's abandonment of the condonation doctrine should be
positively recognized, acknowledged, and declared that "public office is prospective in application for the reason that judicial decisions applying
a public trust." After the turbulent decades of Martial Law rule, the or interpreting the laws or the Constitution, until reversed, shall form
Filipino People have framed and adopted the 1987 Constitution, which part of the legal system. While the future may ultimately uncover a
sets forth in the Declaration of Principles and State Policies in Article II doctrine's error, it should be, as a general rule, recognized as "good law"
that "the State shall maintain honesty and integrity in the public service prior to its abandonment. Consequently, the people's reliance thereupon
CARILLO, Pauline Angela D. April 23, 2019
III-D, 2016-89465 Law on Local Governments

should be respected. The CA’s resolutions directing the issuance of the IV. Does the CA have subject matter jurisdiction over Binay Jr’s
injunctive writs were all hinged on jurisprudence (Aguinaldo, Salalima, petition for certiorari? --YES
Mayor Garcia, Governor Garcia, Jr.) enunciating the condonation doctrine.
Thus, by merely following settled precedents which at that time, Section 14 (2) of the Ombudsman Act is UNCONSTITUTIONAL.
unwittingly remained good law, it cannot be concluded that the CA
committed a grave abuse of discretion. The WPI/TRO were correctly The only allowable remedy according to the provision, is a Rule 45
issued as the CA was not in a capricious or whimsical exercise of its appeal because it is the only remedy taken to the Supreme Court on
judgment. “pure questions of law” However, such extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal can only be taken
OTHER ISSUES against final decisions or orders of the lower courts, and not quasi-
judicial agencies. The appeal on findings of quasi-judicial agencies such
II. Is Binay Jr.’s petition for certiorari moot and academic? -- YES as the Office of the Ombudsman is a Rule 43 appeal to the Court of
Appeals. Thus, it also increased the appellate jurisdiction of the Supreme
The Ombudsman, on October 9, 2015, had already found Binay, Jr. Court without its consent to the same.
administratively liable and imposed upon him the penalty of dismissal,
which carries the accessory penalty of perpetual disqualification for the While the special civil action for certiorari under Rule 65 for the
present administrative charges against him. The TRO/WPI which was interlocutory orders of the Ombudsman is within the concurrent
granted by the Court to Binay was only with respect to the jurisdiction of the CA and the SC, such petition should first be filed with
implementation of the suspension order but such preventive suspension the CA, following the doctrine of hierarchy of courts.
order was only an ancillary issuance to assist the Ombudsman in her
investigation. Section 14 (1) of the Ombudsman Act DECLARED INEFFECTIVE until
the Court adopts it as a Rule of Procedure in an administrative issuance.
III. Is the CA directive for the Ombudsman to comment on the petition
for contempt proper? --YES The concept of independence intended when the Ombudsman office was
created was for protection from Executive supervision and control; such
The Ombudsman argues that as an impeachable officer, she cannot be cannot be invoked as basis to insulate the Ombudsman from Judicial
the subject of an indirect contempt charge because the action is criminal power.
in nature and the penalty would result in effective removal.
The Supreme Court may issue ancillary injunctive writs or provisional
However, the CA Resolution does not show that she has already been remedies in the exercise of judicial review on the acts, including
subject to contempt proceedings. The issuance clearly states that interlocutory orders of the Ombudsman. The Courts have the inherent
notwithstanding the directive for the Ombudsman to comment, the CA power to issue auxiliary writs, processes and other means necessary to
has not given due course to the contempt petition yet. Even if the carry out its acquired jurisdiction. The provisional remedies of a TRO
Ombudsman accedes by filing a comment, the CA, in the exercise of its and a WPI are procedural remedies for the reasonable exercise of its
sound judicial discretion, may still opt not to give due course to Binay, jurisdiction.
Jr.'s contempt petition and accordingly, dismiss the same. The issue is
thus, premature, for the Court to resolve the same. When Congress passed the first paragraph, it took away from the courts
the power to issue a TRO/WPI against an order of the Ombudsman.
CARILLO, Pauline Angela D. April 23, 2019
III-D, 2016-89465 Law on Local Governments

Such is an encroachment of the rule-making authority (again, because

the power to issue provisional remedies is a procedural matter) of the
Court. It thus 1) violates the separation of powers principle; and 2)
dilutes the Court’s ability to carry out its functions