The difference between preventive and punitive suspension

A mayor or a governor who is under preventive suspension is not yet found guilty. In fact, he or she is still presumed innocent and the accusers or the complainants bear the burden of proving his guilt by substantial evidence in administrative cases, and by proof beyond reasonable doubt in criminal cases.

The Supreme Court, en banc, in the case of Ombudsman Conchita Carpio-Morales vs. Court of Appeals & Jejomar Erwin Binay Jr., GR 217126-27, decided on November 10, 2015, educated the public and even the lawyers on the big difference between a preventive suspension and a punitive suspension. The Ombudsman suspended the son of former vice president Jejomar Binay who was mayor of Makati at that time, in connection with multi-million charges in connection with the highly-controversial parking building near the Makati City Hall. The Court of Appeals issued an injunction against the preventive suspension, which reached the Supreme Court since the Ombudsman naturally opposed the injunction.

Justice Estela Perlas-Bernabe wrote the Court's decision, thus: "By nature, a preventive suspension order is not a penalty but only a preventive measure x x x its purpose is to prevent the official to be suspended from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with the records which may be vital in the prosecution of the case against him." In the private sector, an employee who is being charged with serious misconduct, fraud, breach of trust and other serious offenses, may be placed under preventive suspension for not more than 30 days, only if his or her continued presence poses a grave or imminent danger to the life or property of the employer.”

The court reminded us that jurisprudence makes a clear-cut distinction between suspension as a preventive measure and suspension as penalty. "Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation". The court stressed: "That preventive suspension is not a penalty is, in fact, explicitly provided by Section 24, of Rule XIV of the Omnibus Rules Implementing Book Five of the Administrative Code of 1987. (Executive Order 292) and other pertinent Civil Service Laws. Section 24, Preventive Suspension, is not a punishment or penalty for misconduct in office, but is considered to be a preventive measure.”

Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. This is only fair and reasonable because at the time of the suspension, the respondent has not yet been proven guilty. Under Section 24 of the Ombudsman Law, it is clearly stipulated that: "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 law further provides: "The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman or due to the negligence or 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."

The bottom line is clear: Mayor Mike Rama, Governor Erico Aumentado, and Mayor Alice Guo, who were all placed under preventive suspension, are not yet found guilty. If they are exonerated, I would expect the lawyers to file a motion to restore the salaries that were deprived them during the period of their suspension. But I doubt that such motion would be given due course. This then can be considered a taint of injustice embedded in the law itself.