217126-27-Petition

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REPUBLIC OF THE PHILIPPINES

SUPREME COURT 2DIS MAR 25 PM 5: 08 MANILA

CONCHITA CARPIO MORALES, iri her capacity as the Ombudsman,

Petitioner,

- versus -

CO.URT OF APPEALS (SIXTH DIVISION) and JEJOMAR ERWIN S. BINAY, JR.,

Respond(jnts.

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9171°c -2:J i"' ~( .. \.) }

G.R. No. ------For: Certiorari and

Prohibition, with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction

PETITION FOR CERTIORARI AND PROHIBITION .

[With Urgent Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction] '

Petitioner CONCHITA CARPIO MORALES, in her capacity as the Ombudsman, and by counsel, the Office of the Solicitor General, unto this Honorable Court, respectfully state:

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 govemment." 1 To become an effective "guardian of"the guardians" T a public office tasked to investigate and prosecute public officials and empioyees - the Office of the Ombudsman was given a wide array of powei:s, functions and duties, made efficacious by its constitutionally-protected independence and autonomy,

' including the following:

(1) Investigate on its own, or on complaint by !any person, any act or omission of any public official, employee, 6ffice or agency, when

· such act br omission appears to be illegal, unjust, improper, or inefficient. ·

1 Sponsorship Remarks of Commissioner Jose Nolledo, Record of the Deliberation of the l 986 Constitutional Commission (R.C.C.) No. 40, 26 July 1986, p. 267 .

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page 2of31 ---------------------------------------------------------------------..

(2) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(3) Direct the officer concerned, in any appropriate. case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

( ~) Request any government agency for assistance and •information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. '

(5) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. 2

This Petition for certiorari and prohibition seeks to protect the institutional independence of the Office of the Ombudsman in the discharge of its mandate from the unconstitutional interference of respondent Court of Appeals (Sixth Division) (hereafter, Court of Appeals). This Petition is triggered by respondent Court of Appeals' unwarranted intervention in what should have otherwise been a regular administrative proceeding before the Office of the Ombudsman.

The intervention of the Court of App~als has resulted in chaos and total confusion of the people of Makati and those transacting official business with the city government.

NATURE OF THE PETITION

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1. This is a Petition for certiorari3 and prohibitidn4 filed under Rule 65 of the Rules of Court, with urgent pr,ayer for the issuance of a temporary restraining order (TRO) and/or writ df preliminary injunction. It assails respondent Court of Appeals' grave abuse of discretion, amounting to lack or excess of jurisdiction, in issuing the /;Resolution dated 16 March. 2015 (First Resolution) in CA-G.R. SP. No. 13:9453, and Resolution dated 20 March 2015 (Second Resolution) in CA-G.R.)SP. No. 139504.

2 Article XI, Section 13, Paragraphs 1,3,4,5 & 8, Constitution.' 3 Pursuant to Section l, Rule 65, Rules of Court. 4 Pursuant to Section 2, Rule 65, Rules of Court.

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page 3of31

1.1. Respondent Court of Appeals issued the First Resolution in CA-G.R. SP. No. 139453, "Jejomar Erwin S. Binay, Jr. v. Hon. Conchita Carpio-Morales et al., " for Certiorari with Prayer for Temporary R€straining Order and Writ of Preliminary Injunction, the dispositive portion of which

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reads:

... In view of the seriousness of the issues raised in the

Petition for Certiorari and the possible repercussions on the electorate who will unquestionably be affected by suspension of their elective official, the Court resolves to grant petitioner's prayer for a Temporary Restraining Order for a period of sixty (60) days from notice hereof, conditioned upon the posting by petitioner of a bond in the amount of FIVE HUNDRED THOUSAND PESOS (PS00,000.00).

Meanwhile, let tQ.e hearing of the application for issuance of a writ of preliminary injunction be set on March 30, 2015 and March 31, 2015 all at 2:00 o'clock on (sic) the afternoon, and the Respondents, Hon. Conchita CarpioMorales, in her capacity as the Ombudsman, and the Department of Interior and Local Government, are hereby ORDERED to file their Comment on the ·Petiti9n for Certiorari filed by herein petitioner within an inextendible period of ten ( 10) days from receipt of a copy hereof.

SO ORDERED.5

A certified true copy of the First Resolution is attached hereto as Annex "A."

1.2. Respondent Court of Appeals later issued the Second Resolution in CA-G.R. SP. No: 139504, "Jejomar Erwin S. Binay, Jr. v. Manuel A. Roxas, II et al.," for contempt, directing petitioner to comment on the Amended and Supplemental Petition for Contempt (Petition for Contempt) filed by respondent Binay. Among other~ things, the Petition for Contempt alleges that herein petitioher defied the First Resolution of respondent Court of :/Appeals when she manifested that the said First Resolutiort was rendered moot because such First Resolution was issued hnly after petitioner's Joint Order dated 10 March 20156 (Suspension Order) in the adjudication proceedings on the case against Binay et al. had already been served and implemented.

5 Emphasis in the original; citations omitted. . 6 A copy of the Suspension Order is attached hereto as Annex "C":

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PETITION Office of the Ombudsman vs. Court of Appeals, et .a/. Page 4of31 ---------------------------------------------------------------------

A certified true copy of the Second Resolution is attached hereto as Annex "B." A certified true copy f petitioner's Suspension Order is attached hereto as Annex "C."

2. In view of the extreme urgency of the matters involved in this case and the grave and irreparable injury that may be suffered both by petitioner and the institution she represents - the Office of the Ombudsman, as well as the chaos and total confusion of the people of Makati and those transacting official business with the city government, petitioner prays, before the matter can be heard on notice, for the IMMEDIATE issuance of a TRO and/or Writ of Preliminary Injunction enjoining respondent Court of Appeals from conducting further proceedings in the cases from which the assailed Resolutions emanated in order to allow this Honorable Court sufficient time to resolve the constitutional and legal issues proffered hereip.

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3. The First Resolution and Second Resolution being assailed (collectively referred to as the '~Questioned Resolutions") of respondent Court of Appeals are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction because they were issued in violation of the constitutionally-guaranteed independence of the Office of the Ombudsman, 7

the nature of the position of the Ombudsman, and the express provision of Section 14 of Republic Act (R.A.) No. 6770 or the Ombudsman Act of 1989, reading:

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 facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal o; application for remedy against the decision or findings of the . Ombudsman, except the Supreme Court, on pure question of law. [emphasis and underscoring supplied] '

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 ~n evasion or a refusal to perform a positive duty enjoined by law or to acj at all in contemplation of law,"8 petitioner submits that certiorari lies. ii

7 Section 5, Article XI, 1987 Constitution. 8 lagua vs. Court of Appeals, G.R. No. 173390. 27 June 2012.

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PETITION Office of the Ombudsman vs. Court of Appeals. et al. Page5of31

5. On the other hand, there being a need to prevent the unlawful and oppressive exercise of authority and to provide for a fair and orderly administration of justice, "9 petitioner submits that prohibition lies.

6. Petitioner has no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law except via this Petition.

7. While as a rule, certiorari will not lie unless the lower court has, through a motion for reconsideration, been given a cha~ce to correct its errors, this rule admits of certain exceptions, such as in this case where (a) the Questioned Resolutions are contrary to the Constitution, 10 and the law, (b) there is extreme urgency for relief and any further delay would irreparably prejudice. petitioner and the public as well, 11

( c) the issues involved are, as in this case, pure questions of law, 12 (d) the error is patent or the disputed order is void, 1 or ( e) where public interest is involved. 14 All these exceptions are present in this case.

TIMELINESS OF THE PETITION

8. Petitioner received a copy of the First Resolution on 16 March 2015, while it received a copy of the Second Resolution on 20 March 2015.

9. Pursuant to Section 4, Rule 65 of the Rules o~ Court, petitioner has sixty (60) days from notice of the issuances being assailed to file a petition for certiorari and prohibition. Hence, the instaht Petition is filed well within the reglementary period .

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THE PARTIES

10. Petitioner CONCHITA CARPIO MORALES is .the incumbent Ombudsman. The Office of the Ombudsman is an independent

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constitutional body created under Article XI, '.Section 5 of the 1987

9 Vergara vs. Rugue, G.R. No. L-32984, 26 August 1977. ii

10 Pefianco vs. Moral, G. R. No. 132248, 19 January 2000; Quiamh'ao vs. NLRC, G.R. No. 91935, 04

March 1996; and Alf ante vs. NLRC, G.R. No. I 22655, I 5 December I 997. 11

Siok Ping Tang vs. Subic Bay Distribution, G.R. No.· 162575, :PS December 2010; Domdom vs. Sandiganbayan, G.R. No. 182382-83. 24 February 2010; Diamond Bifilders Conglomeration vs. Country Bankers Insurance Corporation, G.R. No. 171820, 13 December 2007; Star Paper Corporation vs. Espiritu, G.R. No. 154006, 02 November 2006; Aguilar vs. Manila Banking Corporation, G.R. No. 15791 I, 19 September 2006; Romy's Freight Service vs. Castro, G.R. No. 141637: 08 June 2006. 12

Spuses Sombilon vs. Garay, G.R. No. 179914, 16 June 2014. ; 13

National Housing Authority vs. Court of Appeals, G.R. No. 144275, 05 July 200 I. 14

HPS Software and Communication Corporation vs. Philippine long :Distance Telephone Company, G. R. Nos. 170217 & 170694, 10 December2012.

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Constitution. Being sued in her official capacit:y as Ombudsman, petitioner is exempt from payment of filing fees and other court fees, pursuant 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. BINAY, JR. is the dulyelected Mayor of Makati City. By virtue of the Suspension Order issued by petitioner, he was preventively suspended for ~ix (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 t}Je 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, 11 7 Rada Street, Legaspi Village, 1129 Makati City.

STATEMENT OF FACTS AND ANTECEDENT PROCEEDINGS

13. On 10 March 2015, acting on the pray~r of the Special Panel of Investigators of the Office of the Ombudsman which conducted a factfinding investigation or case build-up following the filing in July 2014 of a complaint against respondent Binay et al. for Plunder by Renato Bondal and Nicolas Enciso VI, and a related complaint which was thereafter filed, petitioner issued the Suspension Order placing respondent Binay, together with twenty (20) other public officers and ~mployees ·of the City Government of Makati, under preventive suspension until the adjudication of the administrative cases against them is terminated, but for not more than six ( 6) months, without pay.

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page 7 o/31

14. Respondent Binay is one of the respondents in four administrative cases 15 for Grave Misconduct, Serious Dishonesty and Conduct Prejudicial to the Best of the Service pending before the Office of the Ombudsman. The cases involve serious allegations of, among others, corruption or irregularities in the procurement of services, and the disbursements of public funds for, the construction of the Makati City Hall Parking Building (Parking Building). The allegations are detailed in the Complaint dated 03 March 2015 filed by the SpeciaLPanel of Investigators.

A copy of the Complaint dated 03 March 2015 and its annexes are attached hereto as Annex "D" and "Annex D-1", respectively.

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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) of R.A. No. 3019 and two counts of Falsification of Public Documents under Article 1 71 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 Sec~ion 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 o( 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 aroun4 8:30 a.m., in compliance with the directive of herein petitioner for it to implement the Suspension

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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 )i Special Panel of Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0062), and Special Panel bf Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0063). .i 16

Special Panel of lnvf!;stigators v. Jejomar Erwin S. Binay Jr. (OMB~i:-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. (QMB~C-C-15-0063). 19

Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-~-C-15-0064).

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. PageBo/31

Order within five (5) days from receipt (a copy of the Ombudsman's Indorsement to the DILG is attached hereto as Annex "F"), the DILG, though NCR Regional Director Renato L. Brion, caused the implementation of the Suspension Order. A copy of the Suspension Order was posted on the wall of the Makati City Hall, after diligent efforts to have it personally received by respondent Binay failed, given that all the gates of the Makati City Hall were closed and sealed that even some City emp'loyees could not enter the building.

18. The Suspension Order having been served on respondent Binay and duly implemented by the DILG, Director Brion administered the oath of office of Vice Mayor Romulo V. Pefia Jr. as Acting Mayor at around 9:47 a.m. on 16 March 2015. All these developments were duly reported by Director Brion to herein petitioner by a Memorandum dated 16 March 20,15 in compliance with the directive. A. copy of Director Brion's Compliance Report is attached hereto as Annex "G." ·

19. Following the issuance of the Suspension Order, respondent Binay filed a Petition for Certiorari with respondent Court of Appeals, with an application for TRO, to assail the said Suspension Order. Petitioner, however, received a copy of the Petition for ~ertiorari only on 19 March 2015.

20. Hours following the assumption as . Acting Mayor of Vice Mayor Pefia, or around noon of 16 March 2015, respondent Court of Appeals issued the First Resolution granting respondent Binay's prayer for a TRO, on which same day copy thereof was served on petitioner only at 1 :20 p.m.

21. The following day or on 1 7 March 2015, herein petitioner filed a Manifestation of even date (Manifestation) with respondent Court of Appeals, manifesting that the First Resolution was silent on what act respondent Court of Appeals was restraining, and that the Office of the Ombudsman had not yet received a copy of the Court of Appeals petition of herein respondent Binay. Petitioner stated in the! same Manifestation that considering the prior service and implementation bf the Suspension Order, "there is ... no more act to be restrained by the t~mporary restraining order as it had become moot and academic." A copy of the)Manifestation is attached hereto as Annex "H." Parenthetically, to date, herein petitioner has not received any TRO issued by respondent Court of Appeals indicating that herein respondent Binay had complied with the condition for its issuance.

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22. Respondent Binay thereafter filed before respondent Court of Appeals a Petition for Contempt against DILG Secretary ·Manuel Roxas II, Director Brion, Philippine National Poiice (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 impleading 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 ~ppeals 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 otj 16 March 2015 at 8:30 in the morning. This much is evident in Binay's A{nended and Supplemental Petition for Contempt, in which he glaringly omits to mention the aforestated documented facts.

27. Respondent Court of Appeals' Secohd Resolution orders herein petitioner "to file Comment on the Petition/ Atj:iended and . Supplemental Petition for Contempt . . . within an inextendib'1e period of three (3) days

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A copy of the Amended and Supplemental Petition for Contempt isattached hereto as Annex "I."

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page!Oo/31

from receipt [t]hereof." Such order, under the unassailable documented facts of the case, undermines her status as an impeachable officer and compromises the independence of the Office of the Ombudsman, the independent body that she heads, and which derives its mandate from no less than the Constitution.

28. Hence, the filing of the instant Petition for the Honorable Court to intervene in the patently unlawful acts being committed by respondents.

ISSUES I

I. WHETHER OR NOT RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE FIRST QUESTIONED RESOLUTION CONSIDERING THE CONSTITUTIONALLY GUARANTEED INDEPENDENCE OF THE OFFICE OF THE OMBUDSMAN AND SECTION 14 OF R.A. NO. 6770 WHICH PROSCRIBES THE ISSUANCE OF ANY INJUNCTIVE WRIT THAT WOULD DELAY THE INVESTIGATION BEING CONDUCTED BY THE OMBUDSMAN

II. WHETHER OR NOT HEREIN PETITIONER, AS AN IMPEACHABLE OFFICIAL, CAN, UNDER THE UNASSAILABLE DOCUMENTED FACTS OF THE CASE, BE SUBJECT OF CONTEMPT PROCEEDINGS BY RESPONDENT COURT OF APPEALS IN THE DISCHARGE OF HER FUNCTIONS AND DUTIES AS THE PRESENT OMBUDSMAN.

GROUNDS FOR THE PETITION

I. THE OFFICE OF THE ;\OMBUDSMAN'S INDEPENDENCE WAS GRAVEL't UNDERMINED BY RESPONDENT COURT OF APPEALS WHEN IT ISSUED THE FIRST RESOLUTION AGAINST THE PREVENTIVE SUSPENSION OF RESPONDENT BINAY .

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page I I of 31 ____________________________________________________________ ... _______ _

II. THE SECOND RESOLUTION IS ILLEGAL AND IMPROPER FOR '"HAVING BEEN ISSUED AGAINST AN IMPEACHABLE. OFFICER, WHO MAY NOT, UNDER THE UNASSAILABLE

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DOCUMENTED FACTS, BE SUBJECTED TO CONTEMPT PROCEEDINGS.

III. THE QUESTIONED RESOLUTIONS ISSUED BY RESPONDENT COURT OF APPEALS WILL CREATE A DANGEROUS PRECEDENT FOR OTHER PUBLIC OFFICIALS AND EMPLOYEES UNDER INVESTIGATION OR PROSECUTION TO THWART OR DELAY SUCH INVESTIGATION OR PROSECUTION

IV. THE FIRST RESOLUTION WAS ISSUED WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, CONSIDERING THAT IT IS TOTALLY BEREFT OF LEGAL BASIS.

A. RESPONDENT BINAY HAS NO CLAIM OF RIGHT IN ESSE TO HIS PUBLIC POSITION AS MAYOR OF MAKATI CITY THAT CAN JUSTIFY HIS HOLDING ON TO THE POSITION OF A CITY MAYOR

B. THE DETERMINATION BY THE OFFICE OF THE OMBUDSMAN THAT RESPONDENT BINA Y SHOULD BE PREVENTIVELY SUSPENDED WAS A LAWFUL EXERCISE OF DISCRETION THAT CANNOT BE THE SUBJECT OF ANY INJUNCTIVE WRIT.;

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GROUNDS IN SUPPORT OF THE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR WRIT OF

PRELIMINARY INJUNCTION I

I. PETITIONER HAS A CLEAR :LEGAL RIGHT ENTITLED TO PROTECTION BY WAY OF AN INJUNCTIVE WRIT;

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PETITION Office of the Ombudsman vs. Court qf Appeals, et al. Page 12of31 ---------------------------------------------------------------------

II. PETITIONER STANDS TO SUFFER GRAVE AND IRREPARABLE INJURY IF AN INJUNCTIVE WRIT IS NOT ISSUED

III. THERE IS AN URGENT NEED TO IMMEDIATELY RESTRAIN RESPONDENT COURT OF APPEALS FROM FURTHER ACTING ON THE CASES INCLUDING IMPLEMENTING THE ASSAILED RESOLUTIONS, AND RESPONDENT BINA Y FROM DISCHARGING THE DUTIES AND FUNCTIONS OF A MAYOR.

DISCUSSION ·

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 BINA Y.

29. The Office of the Ombudsman is an independent body created by the 1987 Constitution to curb corruption and abuse in government. It was deliberately "constitutionalized" and placed outside the ambit of the political branches of government to, in the words of Commissioner Florenz Regalado, free it from "the insiaious tentacles of politics."21 Putting the Office of the Ombudsman beyond the reach anil influence of the very same public officials and employees that it is tasked to investigate and ,prosecute is the best guarantee of its efficacy. As this Honorable Court, observed:

Taking all this into consideration, the Ombudsman is in a league of its own. It is different from other investigatory and;·prosecutory agencies of the government because the people under its jurisdiction are public officials who, through pressure and influence, can qt1ash, delay or dismiss investigations directed against them. Its function is critical because public interest (in the accountability of public officers and employees) is at stake.22

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I) 21 Record of the Constitutional Commission (Vol. 2), 26 July 1986, p. 294. n . Office of the Ombudsman vs. Samaniego, G.R. No. 175573. 11 Septerryber 2008.

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30. In order to further ensure the independence of the Office of the Ombudsman, its charter - R.A. No. 6770 - likewise insulated it from judicial intervention. This is clearly indicated in Section 14 of the said law:

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 facie 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 question of law. [emphasis and underscoring supplied]

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.

3 2. Without doubt, the broad investigatory powers of the Office. of the Ombudsman, exercised pursl!ant to "its constitutional mandate ·a:;; 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 constitutiortal 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 'bf the Office of the Ombudsman, respondent Court of Appeals ignored the sam~. recklessly interfering with an ongoing investigation against respondent Binay. Respondent Court of Appeals' actions, directed as they were at an

23 Cabrera vs. Marcelo, G.R. Nos. 157419-20. 13 December 2004.

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PETITION Office of the Ombudsman vs. Court qf Appeals, et al. Page 14of31

independent constitutional body, constitute grave abuse of discretion and should be restrained and undone.

35. Further it bears emphasis that the preventive suspension ordered by the Office of the Ombudsman against respondent Binay is integral to the ongoing process of administrative adjudication' against him. Placing a public officer or employee facing an administrative complaint under preventive suspension is an aid to investigation made available to the Office of the Ombudsman by express provision of Section 24 of R.A. No. 6770, to wit:

SECTION 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or ( c) the respondent's continued stay in office may prejudice the case filed against him.

, The preventive suspension shall continue until the case is

terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

Similarly, Section 9, Rule III of the Rules of Procedure of the Office of the Ombudsman in administrative cases provides:

SECTION 9. Preventive Suspension. - Pending investigation, the respondent may be preventively suspended without pay if, in the judgment of the Ombudsman or his proper deputy, the evidence of guilt is strong and (a) the charge against such .. officer or employee involves dishonesty, oppression or gross misconduct, or gross neglect irt the performance of duty; or (b) the charge would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the just, fair and independent disposition of the cas~ filed against him. • ,,

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The preventive suspensioh ;hal~ c6ntinu~ until· the case is terminated; however, the total period of preventive shs'pensjon should not exceed six months. Nevertheless, when the delay in the disposition of the case is due to the fault, negligence or any cause attributable to the respondent, the period of such delay shall not be counted in computing the period of suspension herein provided.

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36. As this Honorable Court explained in Ombudsman vs. Pelino,24

preventive suspension is merely a "preventive measure," or a "preliminary step in an administrative investigation." While not imposed in all administrative cases as a matter of course, preventive suspensions are resorted to when the prevailing circumstances of a particular case so warrant, as when there is a need to "prevent the accused from using ]}is position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. "25

3 7. In this case, respondent Binay was placed under preventive suspension pending the resolution of the administrative complaints against him (but not to exceed six months) for good reason - ttte cases involve anomalies in the procurement and payment for the Parking Building of the Makati City Hall. Needless to state, practically all the documentary evidence relevant to the case are in the custody of the city government, in the same way that potential witnesses - whether friendly or adverse - are currently in the City's employ. There is, therefore, an imperative need to guard such. evidence and witnesses against possible tampering and intimidation; hence, the preventive suspension against respondent Binay and his co-respondents, who are likewise incumbent officials of the city government.

38. Without doubt, therefore, ~pre~ntive su~ens.ion ~mposed by the Office of the Ombudsman on respoildenf Ilinay is •not oniy permissible under the law but necessary given the pr.evailing circumstan~es of the case. The Suspension Order was dictated by prudence and the need to preserve the integrity of the ongoing administrative adjudication.

39. By seeking to restrain the preventive suspension of respondent Binay, respondent Court of Appeals in effect is setting aside the determination of the Office of the Ombudsman that the remedy of preventive suspension is timely, proper and necessary in the course of the administrative adjudication of the cases against him. The net effect of respondent Court of Appeals' acts" is to delay and interfere with the ongoing administrative cases against respondent Binay and,. worse, compromise the pending proceedings by granting him continued ·access to evidence and witnesses that bear heavily on the resolution of his: case. Respondent Court of Appeals cannot substitute the Office of the Ompudsman' s judgment for its own.

26 This is precisely the kind of interference that the law proscribes.

l

,·; ,, 40. Given then the independence vested ljy the 1987 Constitution

on the Office of the Ombudsman, and in view of: the express mandate of R.A. No. 6770, particularly Section 14 thereot respondent Court of

24 G.R. No. 179261, 18 April 2008.

2s Id. 26

Garcia vs. Mojica, G.R. No. 139043, I 0 September 1999.

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PETITION Office of the Ombudsman vs. Court qf Appeals, et al. Page 16of31 ---------------------------------------------------------------------

Appeals' First Resolution should be regarded for what it is: an act tainted by grave abuse of discretion. Indeed, if the Office of the Ombudsman's constitutionally-guaranteed independence were to mean anything, it would have to include the freedom to conduct administrative proceedings openly, decisively and without undue interference. If the directive in Section 14 of R.A. No. 6770 is to be respected, respondent Court of Appeals should be prevented from further delaying, compromising and interfering with the ongoing resolution of the cases against respondent Binay. '

.. 41. When it deprived the Office of the Ombudsman the right to

avail of a legally-recognized remedial measure - preventive suspension -respondent Court of Appeals gravely abused its discretion and wantonly ignored the independence and mandate of the Office of the Ombudsman. Instead of according it the ''highest deference"2

.7 that it deserves, the Suspension Order was capriciously and whimsically disturbed by respondent Court of Appeals, unmindful of how such act would delay the investigation and adversely affect the ability of the Ombudsman to resolve the complaints against respondent Binay with justice, decisiveness and dispatch.

II. THE SECOND RESOLUTION IS ILLEGAL AND IMPROPER FOR HAVING BEEN ISSUED AGAINST AN IMPEACHABLE OFFICER, WHO MAY NOT, UNDER THE . UNASSAILABLE DOCUMENTED FACTS, BE SUBJECTED TO CONTEMPT PROCEEDINGS.

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• • • . . I

42. After issuing the First Resolution, \Vhicji in itself is already an undue interference with the investigation being conducted by the Office of the Ombudsman, respondent Court of Appeals aggravated its error of jurisdiction by issuing the Second Resolution.

43. It bears emphasis that the current predicament of Makati City can be traced to the issuance by respondent Court of Appeals of the First Resolution. Because of the First Resolution, which was belatedly issued after the Suspension Order had already been fully implemented, there are now two local officials claiming to be the Mayor! of the .City. Worse, the tenor and text of the First Resolution was so vague and ambiguous as . to what act it seeks to restrain and to whom the directive is addressed, that it left so much room for varying interpretations, especially in light of the context that was prevailing when it was issued. :

v . Office of the Ombudsman vs. Evangelista, G.R. No. 177211. 13 March 2009.

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PETITION Office of the Ombud~man vs. Court of Appeals, et al. Page 17of31 ---------------------------------------------------------------------

44. Despite the fact, however, that it was respondent Court of Appeals which, so to speak, sowed confusion in Makati City, it issued the Second Resolution directing petitioner to answer the contempt charges filed against her by respondent Binay.

45. The Petition for Contempt filed by respondent Binay is his attempt to further becloud or obfuscate the legal status and effect of the First Resolution, in light of the earlier implementation of the Suspension Order and the swearing in of an Acting Mayor in his stead. Respondent Binay sought to avail of the contempt powers of respondent Court of Appeals in order to force and compel those who hold different opinions to submit to his position on the controversy.

46. What respondent Binay forgets, however, is that petitioner is an impeachable officer2 who cannot be subjected by respondent Court of Appeals to contempt proceedings, for official acts cCYmmitted in the discharge of her functions and dµties. Such immunity,, common to all impeachable officers, is but another manifestation of the intent of the 1987 Constitution to make the Office of the Ombudsman a truly independent body insulated from politics.

47. As an impeachable officer, petitioner can only be subjected to criminal proceedings after she steps down from office. 29 Otherwise, the constitutional guarantee against her removal from office except through the extraordinary process of impeachment would be rendered nugatory. Allowing a criminal charge to proceed against an impeachable officer would indirectly expose her to the risk of being removed from office through means other than that ordained by the 1987 Constitution.30 This Honorable Court made this rule very clear in In re: Gonzalez: 31

It is important to underscore the rule of constitutional law here involved. This principle may be succinctly formulated in the following terms: A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment durin~ the incumbency of such public ~fficer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. [emphasis and underscoring supplied]

28 Sec. 2, Article XI, 1987 Constitution. , 29 See Office of the Ombudsman vs. CA and Mojica, G.R. No. 146486, 04 March 2005. 30 See Lecaroz vs. Sandiganbayan, G.R. No. 130872, 25 March 1999. · 31 A.M. No. 88-4-5433, 15 April 1988.

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page 18of31 ---------------------------------------------------------------------

48. Considering the foregoing, petitioner, as an impeachable officer, should not have been required, at the very outset, to comment on respondent Binay's Petition for Contempt. Respondent Court of Appeals should have refrained from acting on the Petition for Conterp.pt against petitioner is concerned, because of the principle that "proceedings for punishment of indirect contempt are criminal in nature. "32 Under Rule 71 of the Rules of Court, contempt carries with it the punishment of fine or imprisonment - penalties which petitioner, being an impeachable officer, cannot be subjected to during her term.

, 49. A cursory reading of the penalties imposable. for indirect

contempt would show why petitioner should be immune therefrom:

SECTION 6. Punishment if Found Guilty. - If the accused is thereupon adjudged guilty of contempt committed against a superior court or judge, he may be fined not exceeding one thousand pesos or imprisoned not more than six (6) months, or both; if adjudged guilty of contempt committed against an inferior court or judge, he may be fined not exceeding one hundred pesos or imprisoned not more than one ( 1) month, or both, and if the contempt consists in the violation of an injunction, he may also be ordered to make complete restitution to the party injured by such violation.

SECTION 7. Imprisonment Until Order Obeyed. - When the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned by order of a superior court until he performs it. ·

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 froin 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. Qiven 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 riot eveµ have directed

32 Soriano vs. Court <~(Appeals, G. R. No. 128938, 04 June 2004.

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PETITION Office of the Ombudsman vs. Court of Appeals. et al. Page 19of31 ---------------------------------------------------------------------

petitioner to comment on respondent Binay's Petition for Contempt. In doing so, it violated the clear mandate of the 1987 Constitution and undermined the independence of petitioner, who: as an impeachable officer, should be able to perform her duties and functions· free fr0m the threat of criminal or other punitive sanctions.

III. THE QUESTIONED RESOLUTIONS ISSUED BY RESPONDENT COURT OF APPEALS WILL CREATE A DANGEROUS PRECEDENT FOR OTHER PUBLIC OFFICIALS AND EMPLOYEES UNDER INVESTIGATION OR PROSECUTION TO TRW ART OR DELAY SUCH INVESTIGATION OR PROSECUTION

52. IN SUM, respondent Court of Appeals allowed itself to be an instrument of respondent Binay in his maneuvers to delay or even compromise the administrative cases against him before the Office of the Ombudsman. In issuing the Questioned Resolutions, re~pondent Court of Appeals paved the way for future respondents to rightfully suppose that the Ombudsman's criminal and administrative jurisdiction over them can be trumped by a judicial injunction. This is unfortunate, because the clear language of the law - both in the 1987 Constitution and in R.A. No. 6770 -points to the clear intention of the Framers and the legislators to give the Ombudsman a wide latitude of action, without being hampered by injunctive writs. Respondent Court of Appeals is now in the process of eroding whatever protective mantle of independence was originally bestowed upon the Office of the Ombudsman since its inception.

53. Petitioner implores this Honorable Court to immediately intervene and contain the damage wrought by the actions of respondent Court of Appeals. While this ongoing controversy involving respondent Binay represents only one case out of the thousands that the Office of the Ombudsman handles, it suffices to say that c"urr~nt developments, if not managed properly, would adversely affect public int~rest. '

... 1f t

54. What we seek to avoid is the "Binay Case" wittingly or unwittingly creating a "template" for other future'i respondents in criminal and administrative cases to pattern their strategies after. Respondent Court of Appeals' First Resolution can pave the way for other respondents in cases before the Office of the Ombudsman to repair to the courts - especially one perceived to be sympathetic - in order to halt or simply derail the investigation against them. If the Ombudsman asserts her independence,

.,

• .. .

..


adverse parties can simply follow respondent Binaf s tack and charge her for contempt.

55. Petitioner seeks to tak~ this opportunity to obtain a ruling, on behalf of the institution she represents, that will clarify once and for all the extent to which respondent Court of Appeals and lower courts may interfere with the Ombudsman's investigations. Index animi sermo est- speech is the index of intention.33 The language of the law, when clear and unambiguous, should be given effect. Indeed, the principle verba legis non est recedendum - from the words of the statute there should be no departure - is "wellentrenched in this jurisdiction."34 Given these universally accepted rules of statutory construction, it is high time that this Honorable Court decide, once and for all, exactly what the law means when it categorically states that -

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 facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. 35

56. Without a categorical ruling, the strategy employed by respondent Binay in challenging the Ombudsman's investigation against him might open the floodgates for similar reliefs to be requested from the Court of Appeals. This would, needless to state, slowly but surely diminish the independence of the Office of the Ombudsman, which the Framers of the 1987 Constitution fought hard for, guided by lessons from past failed experiments in creating and maintaining an anti-graft body. The "Binay Case" should not set a dangerous precedent on how the Ombudsman's power to investigate anomalies in government can be thwarted.

IV. THE FIRST RESOLUTION WAS ISSUED WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, CONSIDERING THAT IT IS TOTALLY BEREFT OF LEGAL BASIS.

j

A. Respondent Binay has no claim of:right in esse to his public position as Mayor of Makati City ~that can justif} his holding on to the position of a; City Mayor r

33 TJDCORP vs. CSC, G. R. No. 182249, 05 March 2013. 34 Republic vs. Camacho, G.R. No. 185604, 13 June 2013. 35 Section 14, R.A. No. 6770 .

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PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page 21of31 ---------------------------------------------------------------------

57. In his Petition for Certiorari dated 10 March 2015,36 respondent Binay alleges that he is "entitled to injunctive relief since he has a clear and unmistakable right to hold public office, having validly won by a landslide vote in the 2010 and 2013 local elections. "37 This claim of a right to public office is bereft of legal basis.

58. In ruling, however, that the Suspension drder should be restrained due to the "possible repercussions on the electorate who will unquestionably be affected by suspension of their elective official,"38

respondent Court of Appeals appears to have lent credence to respondent Binay's claim. It is a basic tenet in the country's constitutional system, however, that "public office is a public trust," and that there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public office, as public service is not a property .right. 39 Thus, the basis that respondent Binay claims for his application for TRO does not exist; respondent Court of Appeals' issuance of the First Resolution was therefore tainted with grave abuse of discretion.

59. In jurisprudence, at the most, this Honorable Court has upheld public officers' right to due process in the protection of their security of tenure, which, in a limited sense, is analogous to property. Such fundamental right to security of tenure, however, cannot be ipvoked against a preventive suspension order which is merely a preventive measure, not imposed as a penalty.40 Hence, there being no right, respondent Binay cannot claim any right against, or damage or injury that he is bound to suffer from the issuance of the preventive suspension order, since there is no vested right to a public office, or even an absolute right to hold it.41

60. To reiterate, the purpose of preventive suspension is to enable the disciplining authority to investigate charges against respondent by preventing him from intimidating or in any way influencing witnesses against him. 42 From the foregoing purpose, it is clear that the laws on public accountability give a premium to the protection of the service rather than to the interests of the individual office holder. 43

61. While respondent Binay vehemently argues that the preventive suspension order (which, by law, is immediately exe~utory) was issued to his

36 A copy of the Petition for Certiorari is attached hereto as Annex "J".

37 Paragraph 7.5 of the Petition for Certiorari ..

38 First Resolution, p. 5. 39

CSC vs. Javier, G.R. No. 173264, 22 February 2008. 4° Carabeo vs. CA, G.R. Nos. 178000 and 178003, 04 December 2009. 41

Carabeo vs. CA, G.R. Nos. 178000 and 178003, 04 December 2009. 42

CSC vs. Alfonso. G.R. No. 179452, 11 June 2009. 43

Carabeo vs. CA, G.R. Nos. 178000 and 178003, 04 December 2009.

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"damage" and "prejudice,"44 it is unclear how· exactly the exercise of the Ombudsman's constitutional powers has caused him "irreparable injury." It bears emphasis that in cases of preventive suspension, the suspended official is only barred from performing the functions of his office; he does not vacate and lose title to his office as loss of office is a consequence that only results upon an eventual finding of guilt or liability.45 So much so that, if the investigation is not finished and a decision is not rendered within the prescribed period, the suspension will be lifted and the respondent will automatically be reinstated. 46

62. Respondent Binay stands charged before the Office of the Ombudsman with, among others, Grave Misconduct, Serious Dishonesty and Conduct Prejudicial to the Best Interest of the Service, in connection with the expenditure of over PhPI .3 billion of public funds. Assuming he has any right to remain in office, in view of the seriousness of the charges, respondent should allege and prove that he is personally entitled to an injunctive relief grounded on his personal rig~t, not merely· on "possible repercussions on the electorate" and definitely something more substantial than that he "won by a landslide vote in the 2010 and 2013' local elections." Failing such, his application for injunctive relief, especially against an independent constitutional body like the Office of the Ombudsman, should have been given scant consideration; but respondent Court of Appeals, by its whimsical, capricious and injudicious exercise of discretion, granted it nonetheless. This is the very epitome of grave abuse of discretion.

B. The determination by the Office of the Ombudsman that respondent Binay should be preventively suspended was a lawful exercise of discretion that cannot be the subject of any injunctive writ.

63. The authority of the Ombudsman to conduct administrative investigations is beyond cavil. R.A. No. 6770. intended to bestow on said office full administrative disciplinary authority, which entails the power to place under preventive suspension public officers and empfoyees pending an investigation,47 as provided in Section 24 of the said law. ·

64. Under the statute, two requisites must concur to render the preventive suspension order valid: ( 1) that irt the judgment of the Ombudsman or the Deputy Ombudsman, the evidence of guilt is strong; and (2) either: (a) that the offense charged involves dishonesty, oppression or

44 Paragraph 7.4 of the Petition for Certiorari.

45 Aldovino vs. Come/ec, G.R. No. 184836, 23 December 2009 ..

46 Board of Trustees of the GS!S vs. Velasco, G.R. No. 170463, 02 Febr~ary 2011

47 Ombudsman vs. CA and Magbanua, G.R. No. 168079, 17 July 2007. '

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c,

PETITION Office of the Ombudsman vs. Court qf Appeals, et al. Page 23of31

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.48

65. In the light of these well-defined parameters, it cannot be doubted that respondent Court of Appeals, or any court for that matter, cannot substitute its own judgment for that of the Ombudsman on the issue of whether or not the issuance of a preventive suspension order is proper, without a clear showing of grave abuse of discretion.49 Such judgment rests on the Ombudsman, who is in the best position to determine whether a respondent public officer or employee's continued stay in office would be detrimental to the integrity of the pending administrative pr9ceedings.

66. In fact, even this Honorable Court, on more than one occasion, showed restraint and upheld its policy not to interfere with the Ombudsman's exercise of its investigatory and prosecutory powers; this rule having been based on the respect for the initiative and independence inherent in said office, which is "beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service. "50

67. Hence, when respondent Court of Appeals began to wander into an area expressly reserved for the Ombudsman, the former already came dangerously close to abusing its discretion; when it issued the First Resolution without grounding the same on any action evincing grave abuse of discretion on the Ombudsman's part, its undue intrusion became complete. The law is very clear and unequivocal: an injunctive writ may issue against the investigatory authority of the Ombudsman only when grave abuse of discretion or lack of jurisdiction is established.

There is no grave abuse of discretion on petitioner's part.

68. Petitioner never committed grave abuse of discretion. In fact, perusal of the First Resolution ~ould reveal various indicia that it was actually respondent Court of Appeals which gravely abused its discretion. In its First Resolution, respondent Court of Appeals made no mention of "lack of jurisdiction" or "grave abuse of discretion" on the Ombudsman's part in the issuance of the Suspension Order. It did not cdtegorically state that any of the requisites for the valid issuance of the S<lspension Order was not complied with. Most importantly, it did not justify its act of giving more weight to its own judgment on the propriety of implementing the Suspension Order, instead of deferring to the Ombudsman who, under Section 24 of

48 Office of the Ombudsman vs. Evangelista, G.R. No. 177211, 13 March 2009.

49 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; Araullo vs. Office of the Ombudsman, G.R. No. 194157, 30 July 2014


R.A. No. 6770, is given the power to suspend a public official pending investigation if "in his judgment" the evidence presented before him tends to show that the official's guilt h5 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 ~xplained 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. 55

71. Considering that the Suspension Order was issued in consonance with the requirements of the law, there is absolutely no evidence that petitioner gravely abused her discretion. H~r actions were merely in line with the performance of her constitutionally enshrined authority. There being no grave abuse of discretion on the part of petitioner: there is no legal

51 Ombudsman vs. Va/eroso, G.R. No. 167828, 02 April 2, 2007; emphasis supplied.

52 Quimbo vs. Gervacio, G.R. No. 155620, 09 August 2005 53

Hagadvs. Gozo-Dadole, G.R. No. 108072, 12 December 1995 i 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. ..

PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page25 o/31 ---------------------------------------------------------------------

ground for respondent Court of Appeals to countermand her .directive to preventively suspend respondent Binay pending the resolution of the administrative cases against him. ..

Petitioner has jurisdiction over the subject matter of respondent Bi nay's case.

72. At all events, even conceding that the legality or propriety of the issuance of a preventive suspension o:rder can be: reviewed by respondent Court of Appeals by way of a petition for certiorari, it remains a fact that, under the law, such power of review does not carry with it the power to restrain the enforcement, effectivity and implementation of the preventive suspension order. To reiterate, Section 14 of R._A. No. 6770 is clear on this matter:

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 facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. [emphasis and underscoring supplied]

73. Clearly, then, an injunctive writ cannot be issued to delay the investigation of the Ombudsman (and it has been discussed supra that a preventive suspension order is integral to the Ombudsman's investigations). Even when a preventive suspension order is submitted to respondent Court of Appeals' review, the latter has no power to restrain the enforcement of the same during the pendency of such review, unless there is prima (acie evidence that a matter lies outside the jurisdiction of the Ombudsman. Without doubt, in this case, petitioner was acting within the scope of her jurisdiction when she acted on respondent Binay's case.

I

74. Subject matter jurisdiction is conferred by law, not by the consent or acquiescence of any or all of the parties. 56 In this case, the subject matter of the complaints against respondent Bin;ay was well within the Ombudsman's jurisdiction. Under Section 13 of R.A. No. 6770, the Ombudsman has the authority to act on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, inclUding government-owned or controlled corporations, and enforce their ~dministrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the ;people.

56 Cojuangco vs. Republic, G.R. No. 180705, 27 November 2012

..


75. Respondent Binay never raised the issue of "lack of jurisdiction" in his Petition before respondent Court of Appeals. He never 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 ov~r whom the Ombudsman may exercise administrative or disciplinary jurisdiction.

76. Thus, jurisdiction-wise, petitioner was acting within the scope of her administrative disciplinary functions when she issued the order placing respondent Binay under preventive suspension. Hence, no injunctive writ should have issued to restrain the exercise of her investigatory functions. Consequently, when respondent Court of Appeals issued its First Resolution, it did so in wanton violation of the law and in utter disregard of the independence and autonomy of the Office of the Ombudsman. Without a doubt, it committed grave abuse of discretion.

GROUNDS IN SUPPORT OF THE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR WRIT OF

PRELIMINARY INJUNCTION

Petitioner adopts and repleads, by reference, all the foregoing allegations in support of her application for the issuance of a TRO and/or a writ of preliminary injunction, and further alleges the following grounds:

I. PETITIONER HAS A CLEAR LEGAL RIGHT ENTITLED TO PROTECTION BY WAY OF AN INJUNCTIVE WRIT.

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 dut 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. '

I 57

Boncodin vs. National Power Corporation Employees Consolidated U~ion (NECU), 503 SCRA 611, 623 (2006) .

' - . PETITION Office of the Ombudsman vs. Court of Appeals, et al. Page 27of31

79. The acts of respondents significantly bear on the capacity of petitioner and the Office of the Ombudsman to act on res:pondent Binay's pending administrative case with the independence expressly accorded to them by statute and the Fundamental Law. By respondent Court of Appeals' First Resolution, the administrative case against respondent Binay is placed in jeopardy, because his continued stay in the premises of the Makati City Hall endangers the integrity of the evidence and witnesses that may be found therein. Petitioner has the clear legal right - if not solemn duty - to preserve the integrity of the Office of the Ombudsman and its legal proceedings, by ensuring that its Suspension Order is given full force and effect and not circumvented.

80. Moreover, petitioner has a clear legal right not to be subjected to contempt proceedings. As discussed above, contempt is criminal in nature and punishable by imprisonment that can even be extended indefinitely - a penalty that cannot be countenanced insofar as petitioner, an impeachable officer under the 1987 Constitution, is concerned. As an impeachable officer, petitioner cannot be removed from office except by impeachment; she can likewise not be removed indirectly by subjecting her, to criminal or administrative proceedings that carry penalties akin to removal from office. The continuation of the contempt proceedings before respondent Court of Appeals would undermine the status of petitioner as a public official removable only by impeachment; she therefore has a clear legal right to pray that such proceedings be restrained.

II. PETITIONER STANDS TO SUFFER GRAVE AND IRREPARABLE INJURY IF AN INJUNCTIVE WRIT IS NOT ISSUED.

81. Unless restrained by this· Honorable Court, the acts of respondent Court of Appeals woukt continue to erode the independence and authority of petitioner as Ombudsman and the Office of the Ombudsman as an institution. As the "people's watchdog," the Office of the Ombudsman is only as strong and effective as the public it seeks to protect trusts it and finds it credible. Being prevented from conducting its own investigation in a manner it deems best operates to erode the people's faith i:h the Ombudsman. Also, respondent Binay's continued access to doci.1ments and witnesses at City Hall - which is what the Suspension Order precisely seeks to restrain -compromises and endangers the integrity of the pending administrative case against him.

82. On the other hand, being haled to court on pain of contempt undermines the Ombudsman's stature as an impeachable officer of an

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independent constitutional body. It likewise exposes her to similar forms of intimidation and harassment from other public officers that she may . 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 fo:r:_egoing, 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.

III. THERE IS AN URGENT NEED TO IMMEDIATELY RESTRAIN RESPONDENT COURT OF APPEALS FROM FURTHER ACTING ON THE CASES INCLUDING IMPLEMENTING THE ASSAILED RESOLUTIONS, AND RESPONDENT BINA Y FROM DISCHARGING THE DUTIES AND FUNCTIONS OF A MAYOR.

84. In light of the grave and irreparable injuries discussed above, there is more than ample ground for this Honorable Court to immediately grant injunctive relief in favor of petitioner. There is an urgent need to affirm what . it means for a constitutional agency to be declared "independent" and what it means for an impeachable officer to be "removable only by impeachment." The constitutional questions raised in this Petition cannot be suffered to languish for long; the integrity of the Fundamental Law cannot endure periods of prolonged doubts and uncertain ti es.

85. The legal and judicial system is likewise in a state of limbo today, with members of the legal profession divided sharply on which side (between Acting Mayor Pefia and respondent Binay) is in the right. The prevailing state of confusion, arising from the issuance of the First Resolution by respondent Court of Appeals f1:nd respondent Binay's continuous misrepresentation and .discharging of Jhe functions of a city mayor on the basis of such First Resolution, MUST: BE RESOLVED at the soonest possible time and in the most decisive manner.

...

PETITION Office of the Ombudsman vs. Court qf Appeals, et al. Page 29 of3/

86. Lastly, there is a profound need for this Honorable Court to immediately issue an injunctive writ to restrain respondent Court of Appeals from continuing with the proceedings in the cases below, and to restrain respondent Binay from continuing to represent himself as the city mayor.

Court:

PRAYER

.. . WHEREFORE, petitioner respectfully prays that this Honorable

1. Immediately ISSUE a Temporary Restraining Order and/or Writ of Preliminary Injunction (1) enjoining respondent Court of Appeals from conducting further proceedings in CA-G.R. No. 139453 arid CA-G.R. No. 139504, further enjoining the said court from implementing the Resolutions dated March 16, 2015 and March 20, 2015, until further notice or orders from this Honorable Court; and (2) enjoining respondent Binay from continuing to misrepresent himself as the City Mayor of Makati City and discharging functions as such;

2. After due notice and hearing, render judgment and issue a: (a) writ of certiorari ANNULLING the questioned Resolution dated 16 March 2015, and (b) writ of prohibition COMMANDING respondent Court of Appeals (Sixth Division) to desist from further proceeding with the Amended and Supplemental · Petition for Contempt as against Ombudsman Conchita Carpio Morales.

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//

•'

Copy furnished:

Roll No. 44957 IBP Lifetime Roll No. 08505

MCLE Compliance No. IV-0016556

:--t+-8!Y7ll \:l.~J*T-'tIE,RMES L. OCAMPO

Assistant Solicitor General Roll No. 40169

IBP Lifetime Roll No. 09135 MCLE Compliance No. IV-0016556

,/j/v{ J( ~ RAYMUND I. RIGO DON

Senior State Solicitor · Roll No. 39730

IBP Lifetime Roll No. 013395, 2/12/15 MCLE Compliance No. IV-0019451

OFFICE OF THE SOLICITOR GENERAL · 134 Amorsolo Street, Legaspi Village,

Makati City

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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JEJOMAR ERWIN S. BINAY· 8514 Caong Street, Brgy. San Antonio Makati City

EXPLANATION

The foregoing Petition is being served by registered mail on respondents due to lack of time and personnel to effect personal service.

/l--A ·f-~ ' RAYMUND I. RIGODON

....

•

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING ,

I, CONCHITA CARPIO MORALES, of legal age, Filipino, and with Office address at··the Office of the Ombudsman, Agham Road, Diliman, Quezon City, after having been duly sworn to in accordance with law, hereby depose and state that: ·

1. I am the Ombudsman of the Republic of the Philippines and the petitioner in the case entitled "Conchita Carpio Morales v. Court of Appeals (Sixth Division) and Jejomar Erwin S. Binay, Jr. ";

2. I have caused the preparation of and have read the foregoing petition;

3. I have read and understood the .. contents thereof and the same are true of my own personal knowledge or based on authentic records;

4. I have not commenced any action or proceeding involving the same issues and the same parties in any court, tribunal, or quasi-judicial agency;

5. Should I hereafter learn that a similar action or proceeding has been filed or, is pending before the Honorable Court, the Court of Appeals, or different divisions thereof, or any other tribunal or quasi-judicial agency, I undertake to promptly inform the Court of that fact within five (5) days therefrom, as well as of the· status thereof.

IN WITNESS WHEREOF, I have set my hand and affixed my signature this 25th day of March 2015 in Quezon City, Philippines.

co Ombudsman

SUBSCRIBED AND SWORN TO before me this 25th day of March 2015 at Quezon City, Philippines, affiant personally exhibited ,to me her Office of the

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Ombudsman I.D. No. 110110 issued in Quezon _City, Philippines.

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Republic of the Philippines) Quezon City )S.S.

AFFIDAVIT OF SERVICE

I, JbSELITO B. BELLEZA, as Administrative Aide II of the Office of Legal Affiars, Office of the Ombudsman, with postal address at Office of the Ombudsman, Ombudsman Bldg., Agham Road, Government Center, North Triangle, Quezon City, under oath, hereby depose and say:

That on 25 March 2015, I served copies of the Petition for Certiorari and Prohibition dated 25 March 2015 in G.R. entitled "Conchita Carpio Morales vs Court of Appeals (Sixth Division) and Jejomar Erwin S. Binay, Jr. " pursuant to Section 13, Rule 13 of the 1997 Rules of Civil Procedure, in the following manner, to wit:

ADDRESSEES

COURT OF APPEALS Padre Faura, Manila

JEJOMAR ERWIN S. BIN{\ Y, JR. 8514 Caong St., Brgy. San Antonio Makati City

r ATTY. CLARO F. CERTEZA Subido Pagente Certeza Mendoza & Binay Law Offices 5/F Prince Building, 117 Rada Street Legaspi Village, 1129 Makati City

By Registered Mail Registry Receipt No. \ \ ";'.'/ o

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By Registered Mail Registry Receipt No. \I ~1

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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. :

25 March 2015, Quezon City, Philippines.

JOS~L~LLEZA ' Affiant

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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

I, JOSELITO B. BELLEZA, hereby declare that the Petition for Certiorari and Prohibition dated 25 March 2015 of the Office of the Ombudsman filed via registered mail on 25 March 2015 in G.R. No. ---entitled "Conchita Carpio Morales vs. Court of Appeals (Sixth Division) and Jejomar Erwin S. Binay, Jr. " hereto submitted electronically in accordance with the Efficient Use of Paper Rule is complete and true copy of the document filed with tiie Supreme Court.

,SELIT~ Administering Aide II

SUBSCRIBED AND SWORN TO before me this 25th day of March 2015 affiant exhibiting his competent evidence of identity, to wit: Office of the Ombudsman Employee's ID No. 940123 bearing his photograph and signature and signed by the Honorable Conchita Carpio Morales, Ombudsman.

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