Ombudsman’s order vs TRO: So, who’s the real Makati mayor?

By: Dona Z. Pazzibugan, Jerome Aning, Leila B. Salaverria, Maricar B. Brizuela, Tarra Quismundo - 9 years ago

Makati Mayor Jejomar Erwin “Junjun” Binay. INQUIRER PHOTO/RAFFY LERMA

MANILA, Philippines–So, who’s in charge in Makati City?

Is it Makati Mayor Jejomar Erwin “Junjun” Binay Jr., who got a 60-day temporary restraining order (TRO) against his suspension from the Court of Appeals (CA) or Vice Mayor Romulo “Kid” Peña Jr., who took his oath as acting mayor hours before Binay received the TRO?

As far as Ombudsman Conchita Carpio-Morales is concerned, her six-month preventive suspension order on Binay already took effect on March 16.

Justice Secretary Leila de Lima also claimed that the TRO issued by the Court of Appeals was already moot and academic.

De Lima added that Peña may continue being the acting mayor without being bound to the TRO since he is not included as a respondent in the case.

But Binay, along with the Integrated Bar of the Philippines (IBP), insisted that he had not been suspended.

Standing his ground, the mayor on Tuesday asked the Court of Appeals to cite in contempt Interior Secretary Mar Roxas and several others for pushing for his suspension despite the TRO.

Through his lawyers, Binay filed a petition asking that Roxas, the political adversary of his father Vice President Jejomar Binay, be “meted [out] the maximum penalty” for contempt for insisting that he vacate Makati City Hall even when he had already secured a 60-day TRO on Monday.

No effect

Morales, a former Supreme Court associate justice, told the Court of Appeals that its TRO had no more effect on her order to suspend for six months Binay and 21 other Makati officials implicated in irregularities in the construction of Makati City Hall Building II.

In a manifestation she filed on Tuesday, Morales told the three associate justices of the CA Sixth Division that the preventive suspension order had been served and implemented by the Department of the Interior and Local Government (DILG) before the court issued its TRO.

In a press statement, Morales said the TRO “has become moot and academic as there is no more act to be restrained.”

This was the same argument made by Roxas, whose representatives served the suspension order on Binay’s office shortly after the start of office hours on Monday.

The CA decision granting Binay’s petition for a TRO came out shortly past 1 p.m. on Monday.

In her statement, Morales also took a dig at Binay for calling on his supporters to defy the suspension order.

Alarming practice

The Ombudsman “denounced the alarming practice of suspended public officials encouraging the massing of people who obstruct or hinder the proper exercise of the functions of the Office (of the Ombudsman).”

National Capital Region Director Renato Brion of the DILG reported to the Ombudsman that the suspension order was served around 8:30 a.m. on Monday and that Peña was sworn in as acting mayor at 9:47 a.m.

The DILG-National Capital Region office received its copy of the TRO at 3:09 p.m. the same day.

Morales ordered the six-month preventive suspension of Binay and other Makati officials on March 11 in connection with an administrative case over the allegedly overpriced Makati City Hall Building II.

De Lima opinion

In a legal opinion issued around 6 p.m. on Tuesday and addressed to Roxas, De Lima backed the DILG position.

“We are of the opinion that the TRO is without legal force and effect because it is already moot and academic, the acts sought to be restrained having already been performed and accomplished, De Lima said.

“Whether the TRO seeks to restrain the issuance by the Ombudsman of the assailed joint order, or its implementation by the DILG, the same is already moot and academic simply because before they were restrained, the Ombudsman had already issued the joint order and the DILG had already implemented the suspension of Mayor Binay,” the justice secretary said.

“Simply put, the TRO came too late in the day. There is no other action that is needed on the part of the Ombudsman or the DILG that would amount to its violation or non-observance,” De Lima added.

Contempt of court

In a petition filed Tuesday afternoon in the Court of Appeals, Binay said Roxas and the others “willfully and maliciously ignored and refused to comply with the honorable court’s directive” despite due notice and receipt of the court’s resolution granting the mayor’s application for TRO.

The petition cited how the Philippine National Police had barricaded the Makati City Hall’s grounds on Monday “for the purpose of implementing and enforcing” Binay’s suspension despite the TRO.

“In the face of the persistent and wanton refusal of respondents to honor and comply with the lawful order of this honorable court, there is therefore an urgent need to cite respondents for indirect contempt and immediately mete out the appropriate punishment on them until they shall have complied with the TRO,” the petition said.

Binay asked the court to send Roxas and the other respondents to jail for the “maximum” term of six months.

Also named respondents were Brion, PNP Special Action Force Director Carmelo Valmoria, the PNP’s ground commander at City Hall, Senior Supt. Elmer Jamias, and Southern Police District Director Henry Rañola.

Binay also impleaded Peña.

The Binays have long held that allegations against the family were part of an operation to taint their name ahead of the 2016 elections. The elder Binay is poised to seek the presidency.

Saying that he had yet to receive a directive from the DILG, Peña claimed he was still the acting head of the city. “It still stands as of today. I am still the acting mayor,” he said in a text message.

Peña was not in his office on the 20th floor of Makati City Hall nor was he at his residence and headquarters of his motorbike group “Tropang Kid” in Barangay (village) Valenzuela when the Inquirer tried to locate him.

He claimed that he made the rounds in the second district of Makati the whole day on his motorbike and attended funerals of some Makati residents requesting motorbike escorts.

Aside from doing his daily duties as an official of the city, Peña said he was also “instructed to go below radar today.”

“I was told other concerned agencies will hold press conferences today about the matter,” he added.

Asked about the refusal of the policemen barricading the City Hall to leave despite the TRO on the suspension of Binay, Peña said the policemen had not received any directive from the DILG to leave the area.

‘Never became mayor’

For his part, Binay said in a press conference on Tuesday that Peña never became the mayor of the city even for a few hours. He claimed that his tenure as city mayor was never cut pending the issuance of a TRO.

To prove that he was still the head of the city, Binay met with department heads on Tuesday morning to discuss the resumption of services in the city. Media was shut out of the meeting.

After his oath-taking ceremony at Museo ng Makati in Barangay Poblacion on Monday, Peña said that his first order for the day was to meet with department heads, but it never happened as the TRO was already issued by the Court of Appeals a few hours later.

Asked if he would still meet with the department heads of the city, Peña said that he was “planning to as soon as things are cleared with DILG and the Department of Justice.”

2 interpretations

Instead of resorting to so much drama, the Binay camp and the DILG could seek clarification from the Court of Appeals on the application of its order stopping Binay’s suspension, according to Sen. Francis Escudero.

Escudero, a lawyer, said there could be two interpretations of the situation. In the strict application of the rules, it could be said that since the vice mayor had taken his oath, the court should have issued a status quo ante order, the senator said.

But in the liberal sense, it could be said that the court’s intent was to stop Binay’s suspension, he added.

“If there is confusion or misunderstanding, Binay or Roxas or the two of them should ask for an explanation from the court. They don’t need to dig in or resort to such posturing,” Escudero told reporters.

“It’s annoying that a simple thing has to be a big issue or go through so much drama,” he added.

Legal experts

Asked about the conflicting interpretations of the TRO, some legal experts said Binay remained the legitimate mayor, as its issuance upheld the status quo before his suspension.

Vicente Joyas, IBP president, said the DILG was incorrect in saying that “there was nothing to restrain” when Peña took his oath as mayor.

“That is a wrong interpretation… When a TRO is issued, that is either to maintain the status quo to either prevent the controversy or maintain the situation before the controversy, which means before the suspension,” Joyas said when reached by phone on Tuesday.

“They must respect the TRO. Now if they have any doubt as to what the TRO extends to, they may ask clarification from the court, not push for the suspension,” he said.

Law of jungle

Lawyer Harry Roque said it would be as if the “law of the jungle” were in effect “if court orders are disregarded.”

“It would be a crime [not to obey the TRO]. From a policy point of view, it’s bad. The PNP is supposed to implement court decisions, and yet they are defying,” Roque said.

In a statement, Fr. Ranhilio Aquino, San Beda College Graduate School of Law dean, said the DILG erred in saying that Binay remained suspended because the TRO was moot and academic.

“Binay cannot remain suspended, not after the Court of Appeals issued a TRO. Whether or not the suspension order has been served, whether or not the vice mayor has been sworn in as acting mayor—all this is immaterial. What the TRO stays is not the service of the suspension order nor the swearing in of the vice mayor, but rather the suspension itself,” the dean said.