BOODLE FIGHT WITH THE BINAYS Makati residents shared a meal with Vice President Jejomar Binay and son Makati Mayor Jejomar Erwin Binay Jr. on the City Hall quadrangle on Sunday night. The Vice President visited his son and his supporters who have remained on the grounds of City Hall following the refusal of the Department of the Interior and Local Government to recognize the temporary restraining order issued by the Court of Appeals on the Ombudsman’s suspension order on the mayor. CONTRIBUTED PHOTO
The Court of Appeals (CA) yesterday denied the motion filed by government lawyers to suspend the proceedings on Makati City Mayor Jejomar Erwin “Junjun” Binay Jr.’s application for a writ of preliminary injunction to stop the implementation of his six-month preventive suspension.
The writ of preliminary injunction, if granted, would extend, until the case is resolved, the 60-day temporary restraining order (TRO) earlier obtained by Binay from the appeals court.
Government lawyers led by Deputy Ombudsman for Luzon Gerard Mosquera urged the appellate court’s Sixth Division to suspend the proceedings out of “judicial courtesy,” citing the case filed by Ombudsman Conchita Carpio Morales in the Supreme Court.
The Sixth Division chair, Justice Jose Reyes Jr., and the division members, Justices Francisco Acosta and Eduardo Peralta Jr., ruled that since the Supreme Court had not issued a TRO for Morales’ suit against the appellate court’s TRO on the Ombudsman’s suspension of Binay, the appeals tribunal must comply with Section 7, Rule 65 of the Rules of Court, by proceeding with the case, lest they be charged administratively.
The justices disagreed with Mosquera’s contention that the Supreme Court suit would be rendered moot if the appeals tribunal proceeded with its hearings.
Reyes said judicial courtesy should be balanced with court rules providing for expedited hearings regarding preliminary injunctions as well as the interest of substantial justice.
The division heard arguments from the government side, presented by Mosquera and Senior State Solicitor Raymond Rigodon, and from Binay’s legal team, headed by lawyer Claro Certeza.
Binay earlier filed a petition for certiorari in the appeals court accusing the Ombudsman of grave abuse of discretion in initiating a corruption investigation against him.
The appeals court issued a TRO but the Ombudsman and the Department of the Interior and Local Government refused to recognize the TRO, saying it was moot because the Ombudsman’s order had been served hours before and Vice Mayor Romulo “Kid” Peña Jr. had been sworn in as acting mayor on March 16.
Binay and Peña both claim that they are in charge of Makati, with the former holding office on the 21st floor of City Hall and the latter staying at the old City Hall building nearby. Binay has not left his office since the second week of the month.
Ombudsman’s independence
Morales went to the Supreme Court on March 25 to assail the appellate court’s TRO on the suspension of Binay, citing the Ombudsman’s independence and underscoring the importance of enforcing Binay’s six-month suspension while he was being investigated for the alleged overprice in the construction of Makati City Hall Building II.
Morales said placing a public officer or employee facing an administrative complaint under preventive suspension was in aid of the Ombudsman’s investigation.
She said the appellate court had committed a grave abuse of discretion in issuing the TRO against the Ombudsman’s suspension of Binay.
The Supreme Court gave the Court of Appeals and the mayor until April 6 to respond to Morales’ petition.
Binay’s arguments
Certeza used the same arguments that he raised in the mayor’s certiorari suit.
He said that Binay had a clear and unmistakable right to be protected; that there is a material and substantial invasion for such right; that there is an urgent need for the writ to prevent irreparable injury to the applicant; and that no other ordinary, speedy and adequate remedy exists to prevent the infliction of irreparable injury.
Mosquera, on the other hand, argued that public office was a public trust and not an entitlement.
He said that the Ombudsman’s independence to conduct corruption investigation should not be infringed upon by the appellate court and that Binay had failed to file a motion for reconsideration on the Ombudsman’s order suspending him.
Mosquera added that the mayor should just raise his defense in his counteraffidavit.
He faced questions from the justices regarding the parameters of the Ombudsman’s powers to order preventive suspensions and Binay’s contention that his reelection in 2013 had condoned or wiped out any administrative liability he had committed before that.
The justices asked if a condonation necessarily meant that an elected local official was really administratively liable. Mosquera said that Binay’s liability had not yet been established because the investigation was still at a preliminary stage.
Preventive measure
He said the appellate court should not have issued the TRO because under the law, the Ombudsman’s acts may not be stopped especially if it would lead to a delay in the investigation.
The Deputy Ombudsman for Luzon added that the prohibition against injunctions provided under the law was a preventive measure aimed at ensuring the integrity of the investigation.
Acosta asked: “If we find that condonation applies, would you agree that the TRO is valid?” Mosquera said that it was not.
MAKATI ACTING MAYOR Acting Mayor Romulo “Kid” Peña Jr. talks to supporters after the flag-raising ceremony at the old Makati City Hall on Monday. NIÑO JESUS ORBETA
The justices also cited numerous rulings by the Supreme Court affirming the Court of Appeals’ authority to entertain cases stemming from the actions of the Ombudsman. This prompted one of the justices to ask Mosquera if the Ombudsman wanted the court to reverse or set aside those rulings.
Final decisions
As to Mosquera’s contention that only the Ombudsman’s final decisions may be questioned in the courts, the justices cited Supreme Court jurisprudence upholding the Court of Appeals’ rulings on the Ombudsman’s interlocutory orders, such as preventive suspension orders.
Peralta said the appeals court’s ruling on the Binay case would entail “the proper appreciation of what doctrine to follow.”
The three-hour hearing was held in one of the court’s larger session halls to accommodate the many lawyers and aides from the parties.
Saguisag
Former Sen. Rene Saguisag, United Nationalist Alliance spokesperson JV Bautista and Makati Rep. Abigail Binay, the mayor’s sister, also attended the hearings.
About a dozen appeals justices joined media workers in the spectators’ area to watch the proceedings and the conclusion of the hearing on Binay’s application for a writ of preliminary injunction.
While the Court of Appeals heard his application for preliminary injunction on his suspension, Binay expressed hope the court would rule in his favor, saying that he and the residents of Makati would claim victory in the end of all these issues.
“The good thing there is that the Supreme Court did not issue a TRO on the Court of Appeals after the petition filed by the Office of the Ombudsman. That in itself is a small victory for us because it meant the Ombudsman recognized the TRO and we are given the opportunity to answer the SC,” he said.
Speaking before members of the city’s barangay peace officers, the mayor said the appellate court justices had ruled that the proceedings could not be stopped as the Supreme Court had not issued a TRO on the CA.
“I am really hoping that because I have a strong case, the CA will rule in my favor. In the end, all of us will be victorious,” he said.
Asked what he would do if the Court of Appeals ruled against him, the mayor said that he could “still use other remedies.”
“This is a process. The problem is we have already been given a TRO but they have their own interpretation of the CA’s decision,” he said.