Curiously, the client “changed the theory” of her counsel.
The Supreme Court has asked the Office of Solicitor General (OSG) to comment on the memorandum that its client, Ombudsman Conchita Carpio Morales, filed as a summary of arguments for her petition against Makati Mayor Jejomar Erwin “Junjun” Binay’s plea against his preventive suspension.
Following an en banc session Tuesday, the high court required the OSG to file a comment on Morales’ memorandum, saying she “signed by herself even as the OSG has entered its appearance as counsel for the Ombudsman.”
In its order, the Court noted that Morales’ memorandum had changed a critical argument, questioning the overall jurisdiction of the Court of Appeals on Binay’s certiorari plea.
“The Ombudsman has changed the theory previously raised during oral arguments and in the pleadings by the OSG,” the high court said in a summary of the resolution released Tuesday.
The original OSG argument, to which Morales earlier concurred, said that “although respondent Court of Appeals had jurisdiction over Mayor Binay’s petition for certiorari, it had no authority to issue any writ of restraint over the Ombudsman’s preventive suspension order” under the opening paragraph of Section 14 of Republic Act 6770, or the Ombudsman Act.
The Solicitor General thus recognized that the appellate court could handle the case even while arguing that it lacked the power to restrain the Ombudsman from preventively suspending officials under investigation.
In Morales’ memorandum however, she posited a “new theory” and said the Court of Appeals had no power at all over cases that question the Ombudsman’s authority to order the preventive suspension of officials under investigation, as this should rest only on the high court.
“The Ombudsman’s new theory, contained in its Memorandum, is that the CA has no jurisdiction over Mayor Binay’s certiorari petition under Section 14, paragraph 2, RA 6770, with jurisdiction over its actions solely being lodged with the Supreme Court,” the en banc noted.
The cited provision in the Ombudsman Act says: “No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.”
It also provides that “No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law.”
The high court said that since Morales’ new theory had not been previously raised, the Binay camp’s memorandum was not able to address such an argument.
“To give respondent the opportunity to respond to the new theory and for a full disposition of this case, the Court required respondent to comment on the Ombudsman’s Memorandum and for the Ombudsman to comment on respondent’s Memorandum,” said the Supreme Court.
“The OSG is directed to comment on the Ombudsman’s Memorandum in view of its mandate as the lawyer of the government,” the high court said.
Both the Binay and Ombudsman camps had been required to file a memorandum wrapping up their respective arguments on the case that Morales had filed before the high court.
The petition sought to have the Supreme Court uphold her six-month preventive suspension order on Binay and stop the Court of Appeals’ (CA) proceedings on the Mayor’s certiorari plea.
In April, Binay secured a writ of preliminary injunction against the suspension order, which the Ombudsman had issued pending investigation of the mayor’s alleged involvement in the purportedly overpriced contract to build the P2.3-billion Makati City Hall Building 2.
Also during the en banc session on Tuesday, Chief Justice Maria Lourdes Sereno and Associate Justices Antonio Carpio and Martin Villarama Jr. denied Binay’s motion seeking their inhibition for alleged bias against the mayor.