Gutierrez’s ‘midnight’ order ‘invalid’ | Inquirer News

Gutierrez’s ‘midnight’ order ‘invalid’

By: - Reporter / @cynchdbINQ
/ 04:52 AM May 13, 2011

MANILA, Philippines—Former Ombudsman Merceditas Gutierrez’s order reinstating a dismissed Customs bureau official shortly before her resignation was “invalid” because the Court of Appeals had already denied his petition questioning his dismissal, a party-list lawmaker said Thursday.

Bayan Muna party-list Rep. Javier Neri Colmenares cited the April 27 decision of the Special Second Division of the Court of Appeals dismissing Customs police chief Jose Yuchongco’s petition questioning the order of the Ombudsman to dismiss him.

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He said the burden of proof was on Gutierrez. “What did she see (in the Yuchongco motion) that the CA did not see? Can the Ombudsman actually reverse the decision of the Court of Appeals?” the lawmaker asked.

The Ombudsman said Yuchongco was at fault when he did not disclose in his statement of assets, liabilities and net worth (SALN) his ownership of houses and lots in Parañaque City and Batangas province, property in Hillsborough subdivision in Alabang in Muntinlupa City, farmlands in Batangas and Albay province, and P3 million in lotto winnings.

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Ruling before withdrawal

Yuchongco filed a motion to withdraw his petition from the appellate court on the same day it promulgated its decision on his case.

In his motion to withdraw, Yuchongco said he intended to wait for the Ombudsman’s decision for a reconsideration of his case.

“The CA decision was already promulgated when the motion to withdraw was made. In the first place, the CA has not yet granted the motion to withdraw. So to me, the Ombudsman’s order reinstating him was invalid,” Colmenares said.

A copy of the three-page CA ruling obtained by the Philippine Daily Inquirer showed that it dismissed the Yuchongco petition outright.

The appellate court said: “This court finds that the petition should be dismissed outright. Petitioner resorted to an improper mode of appeal in assailing the decision in OMB-CA-050301-G and availed [himself] of a wrong remedy in the wrong forum in assailing the Resolution in OMB-C-C-05-028-G.”

Yuchongco sought the annulment of the Ombudsman decision and resolution by way of a petition for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure in the CA.

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In its decision, the court said appeals to the Ombudsman regarding administrative disciplinary actions should be brought to the CA under Rule 43.

It also said that when the Ombudsman’s findings on the existence of probable cause in a criminal case was tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari in the Supreme Court under Rule 65.

“Wherefore, premises considered, the instant petition is denied due course and is hereby ordered dismissed,” the CA said. The decision was signed by Associate Justice Remedios Salazar-Fernando as division chair, and concurred in by Associate Justices Celia Librea-Leagogo and Danton Bueser.

Colmenares said the next Ombudsman can still reverse Gutierrez’s decision as a legal remedy to correct the situation.

Iglesia ni Cristo

A former official of the Arroyo administration said a justice official of the Estrada administration lobbied for Yuchongco’s reinstatement in the Bureau of Customs by dropping the name of a powerful figure in the Iglesia ni Cristo (INC).

The INC figure, however, was abroad and was reportedly piqued at the former Cabinet official dropping his name, said the source who asked not to be named.

Gutierrez’s right

There was “no midnight deal,” said the Office of the Ombudsman.

Ombudsman spokesperson Mary Rawnsle Lopez said Gutierrez had the right to decide on the motion for reconsideration filed by Yuchongco.

Gutierrez, on May 4, issued a joint order clearing Yuchongco of dishonesty and grave misconduct, thereby reinstating him to his post.

She cited a Supreme Court ruling in which a public works official was cleared of liability over his failure to declare assets in his SALN because there was no intention on his part to hide his assets.

When she overturned a past ruling on Yuchongco, Gutierrez was only doing her job as Ombudsman, Lopez said.

“It was signed by former Ombudsman Ma. Merceditas N. Gutierrez on May 4, 2011, or two days before she was to step down from office,” she noted.

Since Gutierrez’s resignation was effective up to the close of office hours of May 6, Lopez said the ex-Ombudsman “was authorized to exercise her official functions until May 6, 2011. Hence, she can still act on cases pending in her office.”

Jalandoni ruling

Yuchongco’s dismissal from service stemmed from a February ruling by Deputy Ombudsman for Luzon Mark Jalandoni, who said the Customs police chief was guilty of grave misconduct and dishonesty for failing to declare properties in his SALN.

It was also impossible for the Customs official to purchase these properties and to have a net worth of about P6.48 million in 2004 on his own salary, the ruling said.

Yuchongco denied that the properties were in his name. He also noted that he was delayed in declaring them for various reasons, including concerns for his safety, in the case of his lotto winnings.

House Speaker Feliciano Belmonte said at a press conference that he was disappointed at the “midnight reappointment” of Yuchongco. With a report from Kristine L. Alave

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