Makati City Mayor Erwin Jejomar “Junjun” Binay Jr. INQUIRER FILE PHOTO / NIÑO JESUS ORBETA
The Court of Appeals (CA) yesterday issued an extended stay order for an indefinite period against the preventive suspension meted out by the Office of the Ombudsman to Makati City Mayor Erwin Jejomar “Junjun” Binay Jr. who is being investigated for corruption over the alleged overpricing of Makati City Hall Building II.
In a resolution written by Justice Jose Reyes Jr., the appellate court’s Sixth Division said it decided to issue the writ of preliminary injunction “following an assiduous inspection of available data and guided by jurisprudential guideposts.”
The court said it was “enjoining” the Office of the Ombudsman, Department of the Interior and Local Government (DILG) and their agents and/or representatives from enforcing the Ombudsman’s March 10 order preventively suspending Binay for six months.
The court also ordered the respondents “to preserve and respect the status quo before the issuance of the [Ombudsman’s preventive suspension] order.”
Binay, in turn was directed to post a P500,000 bond as a condition for the effectivity of the writ. The bond “shall answer for whatever damages which may be sustained by reason of the preliminary injunction in the event that it is finally decided that the petitioner is not entitled thereto.”
Other division members, Justices Francisco Acosta and Eduardo Peralta Jr., concurred in the ruling.
The writ of preliminary injunction will stop the enforcement of Binay’s suspension during the pendency of the certiorari case he filed in the court on March 12. The writ thus extends the 60-day temporary restraining order (TRO) issued by the court on March 26.
Mayor happy
With the Court of Appeals granting Binay’s writ of preliminary injunction, the mayor’s camp said they were very happy with the latest development.
READ: Junjun Binay’s camp heaves sigh of relief over CA order
Binay’s lawyer Claro Certeza said that his client was glad that the appellate court believed in his arguments in stopping the enforcement of his suspension.
“He can now focus on his duties in serving the residents of Makati,” said Certeza, who noted that the intervention of the DILG and Vice Mayor Romulo “Kid” Peña Jr., who claims to be the acting mayor after Binay’s suspension, had created confusion among the people of Makati.
The Office of the Ombudsman and the DILG refused to recognize the TRO, saying it was moot because the Ombudsman’s order had been served hours before and Peña had been sworn in as acting mayor on March 16.
Two in charge
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.
READ: ‘Acting’ mayor’s office is small stinking room
Asked for comment on the CA decision, Peña said that he will have to confide first with his lawyers.
“I have not received any news about it but we will be awaiting the Supreme Court’s decision on the matter,” Peña added, noting that he will only step down if the high court asks him to.
Ombudsman Conchita Carpio-Morales went to the Supreme Court on March 25 to assail the appellate court’s TRO on the suspension of Binay. She cited the Ombudsman’s independence and underscored 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.
READ: Ombudsman asks SC to nullify CA TRO on Binay suspension
Despite the appellate court’s decision putting on hold its suspension order against Binay, the Office of the Ombudsman is not about to give up the fight.
In a statement issued Monday night, the antigraft body said it would bring the matter to the Supreme Court “as the final arbiter” of legal issues.
It said the high court “should, once and for all, settle the constitutional and legal issues” regarding questions over the appeals court’s authority to stop the Ombudsman from preventively suspending an elected public official “facing grave administrative charges.”
“The Ombudsman is unfazed by the CA resolution,” the Ombudsman said.
“Over and above the constitutional and legal issues, this is a matter involving the people’s desire to know the truth in cases involving corruption and public accountability,” it added.
It said Morales “stands by her authority to place Mayor Binay under preventive suspension.”
“Such legal measure is intended to prevent a public official from using the vast powers of his office to tamper with evidence and harass witnesses in order to thwart the investigation of corruption charges,” the antigraft body said.
It added: “Without such authority, any corruption investigation conducted by the (Ombudsman) would be delayed and seriously obstructed.”
In a statement, undersecretary for public safety Peter Corvera said the DILG would seek “guidance and clarification” from the Office of the Ombudsman on how the department would implement the injunction stopping the implementation of a suspension order against Binay.
The appeals justices said they agreed with Binay that circumstances mentioned in the rules of court and Supreme Court decisions existed to justify the issuance of the writ, namely, “[that] the invasion of a right sought to be protected is material and substantial, [that] the right of the complainant is clear and unmistakable, and [that] there is an urgent and paramount necessity for the writ to prevent serious damage.”
SC ruling
The justices also applied a Supreme Court ruling in the 2009 case Garcia v. Court of Appeals wherein it was declared that “the suspension from office of an elective official, whether as a preventive measure or as a penalty, will undeservedly deprive the electorate of the services of the person they have conscientiously chosen and voted into office.”
The court disagreed with the argument of the Ombudsman that Binay should just raise in his counteraffidavit his defense of condonation.
Binay said his reelection in 2013 extinguished any administrative liability for the alleged anomalies in contracts that were signed during his first term of office. Thus, he said, checks he signed for the contractor after his reelection were valid.
The justices noted that the acts constituting the charges in the complaint against Binay pertained to events from November 2007, when the City Council passed an ordinance allocating P1.24 billion for the parking building.
“[T]o subscribe to respondent Ombudsman’s submission that condonation can only be appreciated by the investigating body after it is ventilated as an exculpation by petitioner and considered solely by [the Ombudsman], following the exercise of its investigative power, will ignore the Court’s constitutional power and duty to evaluate factual and legal foundations for, nay, impediments to, a preventive suspension in an administrative case,” the resolution said.
The justices also explained the parameters of the TRO they earlier issued. Citing Supreme Court jurisprudence, they said a TRO “seeks to restrain a party until the propriety of granting a temporary injunction can be determined. It goes no further than to preserve that status quo until that determination.”
“Now the status quo refers to ‘the last actual peaceable uncontested status which preceded the pending controversy.’ Therefore, the status quo could not be that were [Binay] was preventively suspended since the suspension did not precede the present controversy; it is the controversy,” the appeals court ruled.
The justices also negated the Office of the Ombudsman’s argument that the law creating it prohibited courts from issuing TROs on its decisions and findings. They said the Supreme Court had clarified that what the Court of Appeals could not obstruct via injunction was the decision of the Ombudsman in an administrative case, not interlocutory orders such as preventive suspension orders.
The justices also hinted their displeasure at the Ombudsman and the DILG’s contention that the TRO was already moot and could no longer be enforced since the preventive suspension order had been served on Binay and an acting mayor had taken over the city government.
De Lima’s defense
Justice Secretary Leila de Lima, meanwhile, submitted to the Court of Appeals her comments on the Binay camp’s petition to cite her for contempt for allegedly violating the TRO.
READ: De Lima: ‘Why cite us in contempt of court’
“I cannot be cited for contempt. First and foremost, the TRO is not directed to me. I’m not a party to the [certiorari] case [filed by Binay to question his suspension]. The TRO was never directed to me, so how can I be accused of disobedience or defiance [of the court]?” De Lima told reporters in an interview when asked about the gist of her comment.
“Number two, did I undermine the processes of the court? Of course not, because that’s just their opinion, and there was never any intention on my part to disrespect the Court of Appeals. What’s their (Binay camp’s) basis? None,” she added.
She reiterated that the legal opinion she issued for the DILG was merely “advisory in nature and [for] legal guidance.” Like the Ombudsman, De Lima took the position that the TRO was already moot and academic because the suspension order had already been served and the acting mayor had been sworn into office. With reports from Marlon Ramos, Julie M. Aurelio and Maricar B. Brizuela
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