ILOILO CITY—The Court of Appeals (CA) has barred a lower court judge from proceeding with the election offense case against Antique Gov. Exequiel Javier by the Commission on Elections (Comelec).
In a 24-page resolution on July 11, the CA’s 18th Division in Cebu City issued a preliminary injunction ordering Judge Nery Duremdes of the Regional Trial Court (RTC) Branch 11 in San Jose town, Antique province, to refrain from hearing the case against the governor.
The preliminary injunction was issued to “protect the petitioner’s (Javier) right to an impartial trial, which proceeds from his fundamental right to due process,” according to the resolution.
The CA said it was “inevitable” that a perception or suspicion of bias or partiality on Duremdes would arise because of his association with one of the parties in the case.
The preliminary injunction will remain in effect until the CA resolves a related petition for certiorari filed by Javier questioning an order of Duremdes that denied the governor’s motion for the judge to inhibit himself from the case.
The resolution was penned by Associate Justice Gabriel Ingles and concurred by Associate Justices Pamela Ann Abella Maxino and Renato Francisco.
The preliminary injunction stemmed from a case filed by the Comelec in Western Visayas against Javier for violation of Section 261 of the Omnibus Election Code.
The provision prohibits the suspension of any elective official during the election period without the approval of the Comelec or unless the suspension is related to graft and corruption.
The Comelec said Javier ordered the 30-day suspension of Mayor Mary Joyce Roquero of Valderrama town in Antique on Jan. 23, 2013, which was within the election period that ran from Jan. 13 to June 12, 2013.
The governor enforced the resolution of the provincial board that meted out the suspension on Roquero based on the administrative case filed by then Valderrama Vice Mayor Christopher Maguad.
Maguad, an ally of Javier, accused Roquero of failing to implement a municipal zoning ordinance banning the construction of gasoline and water refilling stations less than 100 meters from churches and other public buildings.
But Roquero countered that the municipal ordinance did not take effect because it was not published in a newspaper of general circulation as required by law.
Roquero resisted the enforcement of the suspension order. She was reelected in the May elections, defeating Maguad.
Javier has repeatedly denied violating the Omnibus Election Code, claiming that the suspension order was consistent with provisions of the Local Government Code (LGC). He insists that the LGC should take precedence over “inconsistencies“ in the election code.
In his petition for the issuance of a writ of preliminary injunction, Javier said Duremdes should inhibit himself from the case because the judge “disregarded laws and rules of procedures” and “openly displayed closeness” with Roquero, a private complainant to the case.
Duremdes has repeatedly dismissed as without basis Javier’s claim of bias.
The CA pointed out in its decision that Duremdes and Roquero are codefendants and had a common lawyer, Eduardo Fortaleza, in an indirect contempt case filed by Javier pending before the appellate court.
Fortaleza, who helped Roquero prepare her complaint-affidavit in the case against Javier, is a godson of Duremdes, the CA cited in its resolution.
In an interview with the Inquirer, Fortaleza said he was not a party to the election case as lawyers of the Comelec were the ones prosecuting the case.