Beruflich Dokumente
Kultur Dokumente
G.R.No.
217126
For: Certiorari and
Prohibition, with
Prayer for Temporary
Restraining Order
and/or Writ of
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PREFATORY
The Office of the Ombudsman was conceptualized during the
deliberations of the Constitutional Commission in 1986 "in answer to the
crying need of our people for an honest and responsive government." 1 To
become an effective "guardian of the guardians" - a public office tasked to
investigate and prosecute public officials and employees - the Office of the
Ombudsman was given a wide array of powers, functions and duties, made
efficacious by its constitutionally-protected independence and autonomy,
including the following:
( 1)
Sponsorship Remarks of Commissioner Jose Nolledo, Record of the Deliberation of the 1986
Constitutional Commission (R.C.C.) No. 40, 26 July 1986, p. 267.
,-/
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.
(3)
(4)
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4.
Respondent Court of Appeals having committed grave abuse of
discretion, defined as "the arbitrary or despotic exercise of power due to
passion, prejudice or personal hostility; or the whimsical, arbitrary, or a
capricious exercise of power that amounts to an evasion or a refusal to
perform a positive duty enjoined by law or to act at all in contemplation of
law," 8 petitioner submits that certiorari lies.
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THE PARTIES
10. Petitioner CONCHITA CARPIO MORALES is the
. incumbent Ombudsman. The Office of the Ombudsman is an independent
constitutional body created under Article XI, Section 5 of the 1987
9
1s exempt rrom paymem or rmng rees ana omer coun rees, pursuam to
Section 21, Rule 141 of the Rules of Court. Petitioner may be served with
pleadings, orders, decisions and other court processes at her office at Agham
Road, Diliman, Quezon City, and at the office of her counsel, Office of the
Solicitor General, at Amorsolo Street, Legaspi Village, Makati City.
11. Respondent COURT OF APPEALS is a statutory court
created under Chapter I of Batas Pambansa Bilang 129. It issued the
Questioned Resolutions in relation to the pending cases docketed as CAG.R. SP. No. 139453 and CA-G.R. SP. No. 139504. It may be served with
summons, pleadings, orders, decisions and other court processes at the Court
of Appeals, Maria Orosa Street, Ermita, Manila.
12. Respondent JEJOMAR ERWIN S. BINA Y, JR. is the dulyelected Mayor of Makati City. By virtue of the Suspension Order issued by
petitioner, he was preventively suspended for six (6) months in connection
with the pending complaints against him et al. for Grave Misconduct,
Serious Dishonesty and Conduct Prejudicial to the Best Interest of the
Service. He is the petitioner in the Petitions a quo. He may be served with
summons, pleadings, orders, decisions and other court processes at his
residence at 8514 Caong Street, Brgy. San Antonio, Makati City or through
his counsel on record Atty. Claro F. Certeza of Subido Pagente Certeza
Mendoza & Binay Law Offices, 5/F Prince Building, 117 Rada Street,
Legaspi Village, 1129 Makati City.
A copy of the Complaint dated 03 March 2015 and its annexes are
attached hereto as Annex "D" and "Annex D-1", respectively.
15. Respondent Binay is also one of the respondents in four
criminal complaints before the Office of the Ombudsman for: ( 1) violation
of Section 3( e) of R.A. No. 3019 and Malversation of Public Funds
involving the Design, Architectural and Engineering Services of MANA
Architecture & Design Co. (MANA) for the construction of the Parking
Building; 16 (2) violation of Section 3(e) ofR.A. No. 3019 and two counts of
Falsification .of Public Documents under Article 171 of the Revised Penal
Code for the Phase III of the construction of the Parking Building by
Hilmarc's Construction Corporation (Hilmarc's); 17 (3) violation of Section
3(e) ofR.A. No. 3019 and two counts of Falsification of Public Documents
for the Phase IV of the construction of the Parking Building by Hilmarc' s; 18
and (4) violation of Section 3(e) of R.A. No. 3019 and two counts of
Falsification of Public Documents for the Phase V of the construction of the
Parking Building by Hilmarc's. 19
16. On 11 March 2015, the Office of the Ombudsman personally
served a copy of the Suspension Order by delivering it at the Office of the
City Mayor. A staff of respondent Binay, Maricon Ausan, received the
Suspension Order at 10:50 a.m. on 11 March 2015. A copy of the personal
delivery receipt dated 11 March 2015 acknowledged and signed by Ausan is
attached hereto as Annex "E." Therefore, as of 11 March 2015, respondent
Binay had received the Suspension Order, hence, was preventively
suspended on even date.
17. Further, on 16 March 2015, at around 8:30 a.m., in compliance
with the directive of herein petitioner for it to implement the Suspension
15
Special Panel of Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0058), Special Panel of
Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0061 ), Special Panel of Investigators vs.
Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0062), and Special Panel of Investigators vs. Jejomar Erwin S.
Binay Jr. (OMB-C-A-15-0063).
16
Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-C-C-15-0059).
17
Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-C-C-15-0062).
18
Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-C-C-15-0063).
19
Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMBC-C-15-0064 ).
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Director Brion, Philippine National Police (PNP) officials and Acting Mayor
Pefia. The core argument of respondent Binay's Petition for Contempt
against the immediately named respondents was that they deliberately
refused to obey respondent Court of Appeals' First Resolution, thereby
allegedly impeding, obstructing or degrading the administration of justice.
23. After the filing of herein petitioner's Manifestation, herein
respondent Binay filed before the Court of Appeals an Amended and
Supplemental Petition for Contempt, 20 imp leading herein petitioner (along
with Secretary of Justice Leila M. De Lima) as an additional respondent,
anchored on the opinion of herein petitioner contained in her Manifestation
that the restraining order mentioned in respondent Court of Appeals First
Resolution was moot. A copy of the Amended and Supplemental Petition for
Contempt is attached hereto as Annex "I."
24. On 20 March 2015, respondent Court of Appeals issued and
petitioner received a copy of the Second Resolution directing her to
Comment on the Amended and Supplementary Petition for Contempt filed
by respondent Binay. Herein petitioner received a copy of the Amended and
Supplemental Petition for Contempt only on 23 March 2015.
25. To date, the people of Makati City, as well as those transacting
official business with the City government and the general public are in total
confusion as a result of the issuance of the First Resolution by respondent
Court of Appeals.
26. The therein petitioner insists that a "TRO" having been issued
by respondent Court of Appeals, herein petitioner committed contempt of
court when she submitted her Manifestation that the TRO was moot.
Petitioner submits that respondent Binay conveniently ignores and glosses
over the documented facts that when respondent Court of Appeals First
Resolution was issued, the Suspension Order had priorly been served on him
on March 11, 2015 and was fully implemented on 16 March 2015 at 8:30 in
the morning. This much is evident in Binay's Amended and Supplemental
Petition for Contempt, in which he glaringly omits to mention the
aforestated documented facts.
27. Respondent Court of Appeals' Second Resolution orders herein
pet1t10ner "to file Comment on the Petition/Amended and Supplemental
Petition for Contempt . . . within an inextendible period of three (3) days
20
A copy of the Amended and Supplemental Petition for Contempt is attached hereto as Annex "I."
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ISSUES
I.
II.
I.
THE
OFFICE
OF
THE
OMBUDSMAN'S
INDEPENDENCE WAS GRAVELY UNDERMINED
BY RESPONDENT COURT OF APPEALS WHEN IT
ISSUED THE FIRST RESOLUTION AGAINST THE
PREVENTIVE SUSPENSION OF RESPONDENT
BINAY.
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IS NOT ISSUED
THE
OFFICE
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WAS GRAVELY UNDERMINED BY
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COURT
OF
APPEALS WHEN IT ISSUED THE
FIRST RESOLUTION AGAINST
THE PREVENTIVE SUSPENSION
OF RESPONDENT BINAY.
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31. Verily, therefore, the texts of the 1987 Constitution and of R.A.
No. 6770 leave no room to doubt the spirit that animates them. The need to
make the Office of the Ombudsman practically supreme in its own sphere the fight against graft and corruption - is so paramount that even apolitical
bodies like courts of law are prohibited from interfering with the exercise of
its investigative functions.
32. Without doubt, the broad investigatory powers of the Office of
the Ombudsman, exercised pursuant to "its constitutional mandate as
protector of the people," 23 will be rendered illusory once unscrupulous
public officials and employees are able breach its mantle of protection.
33. Wisely, the Framers and the legislators were able to recognize,
undoubtedly with the benefit of past experience, that an injunctive writ from
a court, obtained through fair means or foul, can undermine the
independence of the Office of the Ombudsman just as effectively as direct
harassment or political pressure would; and so, erring on the side of caution,
it had been decided that the protection to be accorded to the Office of the
Ombudsman in the performance of its constitutional duty should be broad
enough to cover even the injunctive reliefs traditionally obtainable from the
courts.
34. The foregoing only serve to highlight the patent and grave error
of respondent Court of Appeals when it issued the Questioned Resolutions.
Even as the 1987 Constitution and R.A. No. 6770, as well as a long line of
jurisprudence acknowledge the independence of the Office of the
Ombudsman, respondent Court of Appeals ignored the same, recklessly
interfering with an ongoing investigation against respondent Binay.
Respondent Court of Appeals' actions, directed as they were at an
23
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II.
Office of the Ombudsman vs. Evangelista, G.R. No. 177211. 13 March 2009.
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50. It is clear from the foregoing that petitioner runs the risk of
being imprisoned, possibly for an indefinite period, if she is cited for
contempt. In that case, she will be, for all intents and purposes, removed
from office and prevented from discharging her mandate. This is precisely
the evil sought to be prevented by the 1987 Constitution when it designated
a very limited class of public officials as removable only by impeachment.
Needless to state, there is a paramount need to shield these public officials,
including petitioner, from the threat of removal from office by means other
than impeachment, because of the significance of the public functions they
exercise.
51. Respondent Court of Appeals' Second Resolution was,
therefore, issued with grave abuse of discretion. Given the immunity from
criminal proceedings that impeachable officers like petitioner enjoys (and it
has been established supra that a contempt proceedings is criminal in
nature), respondent Court of Appeals should not even have directed
32
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0fficeofthe0mbudsmanvs. Evangelista,
G.R. No. 177211, 13 March2009.
.
Office of the Ombudsman vs. Capulong, G.R. No. 201643, 12 March 2014.
50
Office of the Ombudsman vs. Evangelista, G.R. No. 177211, 13 March 2009; Casing vs. Ombudsman,
G.R. No. 192334, 13 June 2012; Arau/lo vs. Office of the Ombudsman, G.R. No. 194157, 30 July 2014
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to show that the official's guilt is strong and if the further requisites
enumerated in Section 24 are present. 51
69. It bears to note that in the cases filed against respondent Binay,
petitioner exercised her judgment and found the evidence of guilt to be
strong on the basis of the evidence presented in the complaint, which
included sworn statements of alleged losing bidders and members of the
Makati Bids and Awards Committee (attesting to irregularities in the
procurement subject of the complaint), documents negating the purported
publication of bids, disbursement vouchers, checks and official receipts.
Consideration of the foregoing pieces of evidence suffices to justify the
issuance of the Suspension Order, since the said remedy is merely a
preliminary step in an administrative investigation. 52 It does not even require
prior notice nor hearing. 53 At such initial stage, there is no requirement that
there be a finding of substantial evidence of guilt to warrant the issuance of
an order for preventive suspension. All that is needed is that the requisites
under Section 24 be complied with.
70. As far as the first requirement - "evidence of guilt is strong" is concerned, petitioner was able to establish the same in the Suspension
Order. As to the second requisite, 54 there is likewise no dispute that all the
enumerated circumstances are present, as clearly explained in the
Suspension Order:
As regards the second requisite, all the circumstances enumerated
therein are likewise present. The Complaint charges respondents
[including respondent Binay] with Grave Misconduct, Serious Dishonesty
and Conduct Prejudicial to the Best Interest of the Service. If proven true,
they constitute grounds for removal from public service under the Revised
Rules on Administrative Cases in the Civil Service. Moreover, since the
respondents' respective positions give them access to public records and
influence on possible witnesses, respondents' continued stay in officer
may prejudice the cases filed against them.ss
Ombudsman vs. Va/eroso, G.R. No. 167828, 02 April 2, 2007; emphasis supplied.
Quimbo vs. Gervacio, G.R. No. 155620, 09 August 2005
53
Hagadvs. Gozo-Dadole, G.R. No. 108072, 12 December 1995
54
Either: (a) that the offense charged involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charge would warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him
55
Suspension Order, p. 9.
52
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averred that the subject matter of the administrative complaints against him
is outside the jurisdiction of the Office of the Ombudsman. To be sure,
respondent Binay, being the Mayor of Makati City, is a public officer over
whom the Ombudsman may exercise administrative or disciplinary
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77. Petitioner has a clear legal right that she has an interest in
protecting, and which can only be preserved during the pendency of the
Petition if an injunctive writ is issued by this Honorable Court. A "clear
legal right" means one clearly founded on or granted by law or is
enforceable as a matter of law. 57
78. As discussed supra, the institution that petitioner heads - the
Office of the Ombudsman - is an independent body that derives its mandate
from no less than the 1987 Constitution. The independence granted to the
Office of the Ombudsman is further fleshed out in R.A. No. 6770,
particularly Section 14 thereof, which proscribes the issuance of injunctive
writs that would delay an investigation that it is conducting.
57
Boncodin vs. National Power Corporation Employees Consolidated Union (NECU), 503 SCRA 61 I, 623
(2006).
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investigate in the future. Being made to explain and justify her official
actions before respondent Court of Appeals tarnishes petitioner's integrity
and casts serious doubt on the independence and autonomy of her office.
83. Clearly, from the foregoing, petitioner stands to suffer grave
and irreparable injury from the continued acts of respondent Court of
Appeals. It also bears to mention that equal (if not greater) injury stands to
be sustained by the people of Makati City, the legal system and the Rule of
Law itself if this Honorable Court would not wield its authority judiciously
and restrain the contested and questionable acts of respondent Court of
Appeals.
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from continuing with the proceedings in the cases below, and to restrain
respondent Binay from continuing to represent himself as the city mayor.
PRAYER
Other reliefs just and equitable under the premises are likewise prayed
for.
Makati City for the City of Manila, Metro Manila,. Philippines, 25
March 2015.
II Signatories to follow II
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~E,RMES L. OCAMPO
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RAYMUND I. RIGODON
Senior State Solicitor
Roll No. 39730
IBP Lifetime Roll No. 013395, 2/12/15
MCLE Compliance No. IV-0019451
Copy furnished:
ATTY. CLARO F. CERTEZA
ATTY. MARIA PATRICIA L. ALVAREZ
SUBIDO PAGENTE CERTEZA MENDOZA & BINA Y
Counsel for Respondent
5th Floor, Prince Building, 117 Rada St.
Legaspi Village, 1129 Makati City
COURT OF APPEALS
Ma. Orosa Street,
Ermita Manila
(CA-G.R. SP No. 139453 &
CA-G.R. SP No. 139504)
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Makati City
EXPLANATION
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RAYMUND I. RIGODON
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Ombudsman
MARIBET
inlstering Officer
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CONCH ITA CARP.IC> MORALES
Date:
CERTIFIED
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Name
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69 Carpio CQfnpound, Soldier'< Hill" Munlinlupo City
Tel. No.
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(02) B09-B29JI
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ADDRESSEES
COURT OF APPEALS
Padre Faura, Manila
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By Registered Mail
Registry Receipt No.
11 =ti
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by depositing copies of the pleading on 25 March 2015 with the Central Post Office,
Quezon City, as evidenced by the registry receipt numbers indicated above, after the
names of the party-addressees, which original receipts are attached to the original of the
aforesaid Petition for Certiorari and Prohibition, and with instructions to the postmaster
to return the mail to the sender after ten(lO) days, if undelivered to the party-addressee
concerned.
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SUBSCRIBED AND SWORN to before me this 25th day of March 2015, affiant
exhibiting to me his Office of the Ombudsman I.D. No. 940123, bearing his photograph
and signature.
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VERIFIED DECLARATION
1SELIT~
Administering Aide II