MANILA, Philippines - The Office of the Ombudsman has suffered another setback in its bid to proceed with its preventive suspension order against Makati Mayor Jejomar Erwin “Junjun” Binay Jr.
The Court of Appeal’s Sixth Division denied yesterday the motion of the ombudsman through the Office of the Solicitor General (OSG) seeking to suspend the CA proceedings due to its petition filed with the Supreme Court last week.
Assistant Solicitor General Hermes Ocampo cited judicial courtesy since any further action of the CA would preempt the ruling of the high court of their petition, which questioned the CA’s temporary restraining order on the suspension against Binay.
But Associate Justice Jose Reyes Jr., chair of the CA division, denied the OSG’s motion in open court, citing Section 7, Rules 65 of the Rules of Court, which provides that any petition with a higher court “shall not interrupt the course of the principal case” in the absence of a halt order.
The magistrate also told Ocampo that failure to proceed with the case could be a ground for an administrative charge against them.
“Judicial courtesy must be applied with prudence and caution,” Reyes stressed.
Offense condoned by re-election?
During the hearing, the CA justices also grilled Deputy Ombudsman for Luzon Gerard Mosquera for questioning the jurisdiction of the appellate court and insisting on the non-applicability of the principle of condonation in the case.
Mosquera countered the claim of Binay’s lawyers, led by Claro Certeza, that the alleged acts covered by the ombudsman probe were committed during the mayor’s previous term and had been condoned by his re-election in the 2013 polls.
He argued that condonation should be determined in full-blown administrative proceedings of the anti-graft office and that Binay should have just raised the issue by appealing the six-month preventive suspension order before elevating the case to the CA.
He added that the suspension is a preventive measure to protect the integrity of the ombudsman investigation and make sure that the official would not use his powers to tamer evidence and influence potential witnesses.
Associate Justice Francisco Acosta, however, told the ombudsman official that the application of condonation does not need investigation as it simply requires determination of dates of elections and acts allegedly committed.
“If condonation needs finding of administrative liability, then there should be no preventive suspension yet,” the justice pointed out in rebutting Mosquera’s argument.
Associate Justice Eduardo Peralta Jr., for his part, lectured Mosquera on jurisprudence on the jurisdiction of the CA on actions of the ombudsman.
The debate centered on the issue of whether or not the alleged offenses committed by Binay could be covered by the condonation principle.
Mosquera claimed that the ongoing ombudsman probe covers two checks for payment of builders of the Makati City Hall Building 2 and an P11-million contract for the architectural design of the building signed by Binay in his current term, which therefore cannot be considered condoned.
Certeza argued that such acts should still be covered by the condonation rule since they stemmed from contracts originally forged even before Binay was elected as mayor.
Citing previous cases and SC rulings, he stressed that the determination of liabilities should be based on when the contracts were forged.
He explained that Binay just signed the checks for payment of the developers “as part of the implementation of the existing contracts.”
At the end of the three-hour hearing, the CA submitted for resolution the petition for issuance of writ of preliminary injunction, which would extend for an indefinite period the temporary restraining order (TRO) it earlier issued on the suspension order.
Certeza also asked the court to clarify the effectivity of its TRO, citing confusion in the city hall where Binay and Vice Mayor Romulo Peña are both serving as mayors.
The justices did not immediately address the plea, which will be tackled in a separate petition for contempt that will be heard in the continuation of the hearing at 2 p.m. today.