• Makati, Quo Vadis?

    5

    I RECEIVED an e-mail from a Mr. Marcelo Tecson informing me that in 2010, the Supreme Court through a resolution penned by then Supreme Court Chief Justice Renato Corona virtually expanded the powers of the Office of the Ombudsman in relation to implementation of the agency’s rulings on administrative cases against erring public officials despite pending appeals in the courts.

    The resolution states that the decision of the Ombudsman is immediately executory pending appeal and may not be stayed by the filing of the appeal or the issuance of an injunctive writ. This was a modification of its earlier decision in September 2008 in the case of the Ombudsman vs. Joel Samaniego where it said only orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand or suspension of not more than one month or a fine not equivalent to one month salary shall be final and unappealable, hence immediately executory.

    How then does this apply in the case of Makati where we now see two mayors performing the same functions? Which would be considered as official acts performed by either one? Which is binding? Binay’s or Pena’s? This can be confusing for the people of Makati especially those who do business in city hall.

    Mention of the Samaniego case was made when the Ombudsman was hearing the administrative case filed against Senior Inspector Rolando Mendoza. Remember him in the August 23 hostage-taking incident where PNoy‘s handling of the incident was also highly criticized? Well, we all know what happened after that.

    In that case, Mendoza wanted to be reinstated to service while his appeal was pending in the Ombudsman. With the new ruling of the High Court, it means the anti-graft office now has more powers since it could now implement rulings on all administrative cases and not just those with minor penalties.

    Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order 17 dated Sept. 15, 2003 further says, an appeal filed in courts like the Court of Appeals cannot stop the implementation of the Ombudsman order.

    “In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal,” the SC said.

    “A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be a ground for disciplinary action against such officer,” it added.

    The SC explained that this rule of the Ombudsman prevails over provisions of the Rules of Court, which stay execution of penalties for major administrative cases pending resolution of courts of appeals filed by concerned public officials.

    “Lex specialis derogat generali. When two rules apply to a particular case, that (which) was specially designed for the said case must prevail over the other,” it ruled.

    The Court cited as basis Article XI Section 13 (8) of the Constitution, which authorizes the Office of the Ombudsman to promulgate its own rules of procedure.

    It added that Sections 18 and 27 of RA 6770 (Ombudsman Act of 1989) also provide that the Office of the Ombudsman has the power to “promulgate its rules of procedure for the effective exercise or performance of its powers, functions and duties” and to amend or modify its rules as the interest of justice may require.

    For this reason, the SC said stopping the implementation of an Ombudsman order would be “encroachment on the rule-making powers of the Ombudsman” on the part of the courts.

    “Clearly, Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman supersedes the discretion given to the Court of Appeals in Section 12, [9] Rule 43 of the Rules of Court when a decision of the Ombudsman in an administrative case is appealed to the CA,” it stressed.

    It would be interesting to see who will reign in Makati in the end given the aforesaid. Quite frankly, I have not heard any complaints from the Makati constituents. Only from the politicians. It is either they are happy with the Binays or just too confused to know where to go. Quo vadis?

    God is Great!

     thelmadm@yahoo.com

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    5 Comments

    1. Whoa! This is what happens with little knowledge of the law. The resolution applies to the PENALTY given by the ombudsman which cannot be stayed by filing an appeal or the issuance of an injunctive writ. It is immediately executory had it been the penalty. What the ombudsman issued is not a PENALTY but a PREVENTIVE SUSPENSION. This is how the abovementioned resolution should be understood. The PREVENTIVE SUSPENSION can be stayed as in the case of Gov. Ayong Maliksi of Cavite when he was slapped with a preventive suspension by the ombudsman but was stayed by a TRO issued by the Court Of Appeals.

    2. ernesto albay on

      So its clear now, its time to say GOODBYE…. hope all documents were stashed out already.

    3. So was your conclusion at the end of this that binay is is the wrong mayor & pena is now the mayor. Thats what i think you were wrting. But you see even you left it a little unclear. You could have written who is the mayor according to your interpretation of the sc rulings.
      Someone needs to do something & to just have 2 guys both operating as mayor is just laughable. But once again the philippines in the eyes of the world becomes a laughing stock. It seems not to bother you lot at all. If pena is right the police should remove binay full stop. If binay is right the police should say so & tell him he is the mayor & will be allowed in & out of the office.

    4. There you go. It is now clear. “Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order 17 dated Sept. 15, 2003 further says, an appeal filed in courts like the Court of Appeals cannot stop the implementation of the Ombudsman order.”. The Binays thought that they already won the legalities of their technical usurpation of the law. The Binays will do everything to hang on to their positions. As others said, “If you are not hiding anything , why don’t you let the court investigate you”. Too bad the Binays wanted to have their own laws at the expense of the Filipino people. When do these shenanigans of the Binays stop?

      • those justices of the court of appeals are not stupid…they also know their laws….and they will not issue a TRO without basis….