EN BANC administrative cases17for Grave Misconduct, Serious Dishonesty, and Conduct

Prejudicial to the Best Interest of the Service, and six (6) criminal cases18 for
violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and Falsification
G.R. Nos. 217126-27, November 10, 2015
of Public Documents (OMB Cases).19

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous
OMBUDSMAN, Petitioner, v. COURT OF APPEALS (SIXTH DIVISION) AND activities attending the following procurement and construction phases of the Makati
JEJOMAR ERWIN S. BINAY, JR., Respondents. Parking Building project, committed during his previous and present terms as City
Mayor of Makati:
DECISION
Binay, Jr.'s First Term (2010 to 2013)20
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase
PERLAS-BERNABE, J.:
III of the Makati Parking Building project to Hilmarc's Construction Corporation
(Hilmarc's), and consequently, executed the corresponding
"All government is a trust, every branch of government is a trust, and immemorially contract22 on September 28, 2010,23 without the required publication and the lack
acknowledged so to be[.]"1ChanRoblesVirtualawlibrary of architectural design,24 and approved the release of funds therefor in the following
amounts as follows: (1) P130,518,394.80 on December 15, 2010;25 (2)
P134,470,659.64 on January 19, 2011;26 (3) P92,775,202.27 on February 25,
The Case
2011;27 (4) P57,148,625.51 on March 28, 2011;28 (5) P40,908,750.61 on May 3,
2011;29 and (6) P106,672,761.90 on July 7, 2011;30
Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015
by petitioner Conchita Carpio Morales, in her capacity as the Ombudsman
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of
(Ombudsman), through the Office of the Solicitor General (OSG), assailing: (a) the
the Makati Parking Building project to Hilmarc's, and consequently, executed the
Resolution3 dated March 16, 2015 of public respondent the Court of Appeals (CA)
corresponding contract32 on August 18, 2011,33 without the required publication and
in CA-G.R. SP No. 139453, which granted private respondent Jejomar Erwin S.
the lack of architectural design,34 and approved the release of funds therefor in the
Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary restraining order
following amounts as follows: (1) P182,325,538.97 on October 4, 2O11;35 (2)
(TRO) against the implementation of the Joint Order4 dated March 10, 20,15 of the
P173,132,606.91 on October 28,2011;36 (3) P80,408,735.20 on December 12,
Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order)
2011;37 (4) P62,878,291.81 on February 10, 2012;38 and (5) P59,639,167.90 on
preventively suspending him and several other public officers and employees of the
October 1, 2012;39
City Government of Makati, for six (6) months without pay; and (b) the
Resolution5 dated March 20, 2015 of the CA, ordering the Ombudsman to comment
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award40 for Phase V of the
on Binay, Jr.'s petition for contempt6 in CA-G.R. SP No. 139504.
Makati Parking Building project to Hilmarc's, and consequently, executed the
corresponding contract41 on September 13, 2012,42 without the required publication
Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary
and the lack of architectural design,43 and approved the release of the funds
injunction8 (WPI) in CA-G.R. SP No. 139453 which further enjoined the
therefor in the amounts of P32,398,220.0544 and P30,582,629.3045 on December
implementation of the preventive suspension order, prompting the Ombudsman to
20, 2012; and
file a supplemental petition9 on April 13, 2015.

Binay, Jr.'s Second Term (2013 to 2016)46

The Facts
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for
On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and
the remaining balance of the September 13, 2012 contract with Hilmarc's for Phase
Nicolas "Ching" Enciso VI before the Office of the Ombudsman against Binay, Jr. and
V of the Makati Parking Building project in the amount of P27,443,629.97;47 and
other public officers and employees of the City Government of Makati (Binay, Jr., et
al), accusing them of Plunder11 and violation of Republic Act No. (RA)
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining
3019,12 otherwise known as "The Anti-Graft and Corrupt Practices Act," in
balance of the contract48 with MANA Architecture & Interior Design Co. (MANA) for
connection with the five (5) phases of the procurement and construction of the
the design and architectural services covering the Makati Parking Building project in
Makati City Hall Parking Building (Makati Parking Building).13
the amount of P429,011.48.49
On September 9, 2014, the Ombudsman constituted a Special Panel of
Investigators14 to conduct a fact-finding investigation, submit an investigation On March 6, 2015, the Ombudsman created another Special Panel of Investigators
report, and file the necessary complaint, if warranted (1st Special Panel).15 Pursuant to conduct a preliminary investigation and administrative adjudication on the OMB
to the Ombudsman's directive, on March 5, 2015, the 1st Special Panel filed a Cases (2nd Special Panel).50Thereafter, on March 9, 2015, the 2nd Special Panel
complaint16 (OMB Complaint) against Binay, Jr., et al, charging them with six (6) issued separate orders51 for each of the OMB Cases, requiring Binay, Jr., et al. to file
1
their respective counter-affidavits.52 posted a copy thereof on the wall of the Makati City Hall after failing to personally
serve the same on Binay, Jr. as the points of entry to the Makati City Hall were
Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C. Evangelista
recommendation of the 2nd Special Panel, issued on March 10, 2015, the subject administered the oath of office on Makati City Vice Mayor Romulo V. Peña, Jr. (Peña,
preventive suspension order, placing Binay, Jr., et al. under preventive suspension Jr.) who thereupon assumed office as Acting Mayor.64
for not more than six (6) months without pay, during the pendency of the OMB
Cases.53 The Ombudsman ruled that the requisites for the preventive suspension of At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015),
a public officer are present,54 finding that: (a) the evidence of Binay, Jr., et al.'s granting Binay, Jr.'s prayer for a TRO,66 notwithstanding Pena, Jr.'s assumption of
guilt was strong given that (1) the losing bidders and members of the Bids and duties as Acting Mayor earlier that day.67Citing the case of Governor Garcia, Jr. v.
Awards Committee of Makati City had attested to the irregularities attending the CA,68 the CA found that it was more prudent on its part to issue a TRO in view of the
Makati Parking Building project; (2) the documents on record negated the extreme urgency of the matter and seriousness of the issues raised, considering
publication of bids; and (3) the disbursement vouchers, checks, and official receipts that if it were established that the acts subject of the administrative cases against
showed the release of funds; and (b) (1) Binay, Jr., et al. were administratively Binay, Jr. were all committed during his prior term, then, applying the condonation
charged with Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the doctrine, Binay, Jr.'s re-election meant that he can no longer be administratively
Best Interest of the Service; (2) said charges, if proven to be true, warrant removal charged.69 The CA then directed the Ombudsman to comment on Binay, Jr.'s
from public service under the Revised Rules on Administrative Cases in the Civil petition for certiorari .70
Service (RRACCS), and (3) Binay, Jr., et al.'s respective positions give them access
to public records and allow them to influence possible witnesses; hence, their On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what
continued stay in office may prejudice the investigation relative to the OMB Cases act was being restrained and that since the preventive suspension order had already
filed against them.55 Consequently, the Ombudsman directed the Department of been served and implemented, there was no longer any act to restrain.72
Interior and Local Government (DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the preventive suspension order On the same day, Binay, Jr. filed a petition for contempt,73 docketed as CA-G.R.
against Binay, Jr., et al., upon receipt of the same.56 SP No. 139504, accusing Secretary Roxas, Director Brion, the officials of the
Philippine National Police, and Pena, Jr. of deliberately refusing to obey the CA,
On March 11, 2015, a copy of the preventive suspension order was sent to the thereby allegedly impeding, obstructing, or degrading the administration of
Office of the City Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s justice.74 The Ombudsman and Department of Justice Secretary Leila M. De Lima
staff.57 were subsequently impleaded as additional respondents upon Binay, Jr.'s filing of
the amended and supplemental petition for contempt75 (petition for contempt) on
The Proceedings Before the CA March 19, 2015.76 Among others, Binay, Jr. accused the Ombudsman and other
respondents therein for willfully and maliciously ignoring the TRO issued by the CA
On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed against the preventive suspension order.77
as CA-G.R. SP No. 139453, seeking the nullification of the preventive suspension
order, and praying for the issuance of a TRO and/or WPI to enjoin its In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-
implementation.60Primarily, Binay, Jr. argued that he could not be held G.R. SP No. 139453 and CA-G.R. SP No. 139504, and, without necessarily giving
administratively liable for any anomalous activity attending any of the five (5) due course to Binay, Jr.'s petition for contempt, directed the Ombudsman to
phases of the Makati Parking Building project since: (a) Phases I and II were file her comment thereto.79 The cases were set for hearing of oral arguments on
undertaken before he was elected Mayor of Makati in 2010; and (b) Phases III to V March 30 and 31, 2015.80
transpired during his first term and that his re-election as City Mayor of Makati
for a second term effectively condoned his administrative liability therefor, The Proceedings Before the Court
if any, thus rendering the administrative cases against him moot and academic.61In
any event, Binay, Jr. claimed that the Ombudsman's preventive suspension Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the
order failed to show that the evidence of guilt presented against him is Ombudsman filed the present petition before this Court, assailing the CA's March
strong, maintaining that he did not participate in any of the purported 16, 2015 Resolution, which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No.
irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued that 139453, and the March 20, 2015 Resolution directing her to file a comment on
he has a clear and unmistakable right to hold public office, having won by landslide Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504.81 The Ombudsman
vote in the 2010 and 2013 elections, and that, in view of the condonation doctrine, claims that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO,
as well as the lack of evidence to sustain the charges against him, his suspension citing Section 14 of RA 6770,82 or "The Ombudsman Act of 1989," which states that
from office would undeservedly deprive the electorate of the services of the person no injunctive writ could be issued to delay the Ombudsman's investigation unless
they have conscientiously chosen and voted into office.63 there is prima facie evidence that the subject matter thereof is outside the latter's
jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay,
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the Jr.'s petition for contempt is illegal and improper, considering that the Ombudsman
implementation of the preventive suspension order through the DILG National is an impeachable officer, and therefore, cannot be subjected to contempt
Capital Region - Regional Director, Renato L. Brion, CESO III (Director Brion), who proceedings.84
2
 On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of
In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII the parties. Thereafter, they were required to file their respective memoranda.102 In
of the 1987 Constitution specifically grants the CA judicial power to review acts of compliance thereto, the Ombudsman filed her Memorandum103 on May 20, 2015,
any branch or instrumentality of government, including the Office of the while Binay, Jr. submitted his Memorandum the following day.104
Ombudsman, in case of grave abuse of discretion amounting to lack or excess of
jurisdiction, which he asserts was committed in this case when said office issued the Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to
preventive suspension order against him.86 Binay, Jr. posits that it was incumbent comment on each other's memoranda, and the OSG to comment on the
upon the Ombudsman to1 have been apprised of the condonation doctrine as this Ombudsman's Memorandum, all within ten (10) days from receipt of the notice.
would have weighed heavily in determining whether there was strong evidence to
warrant the issuance of the preventive suspension order.87 In this relation, Binay, On July 15, 2015, both parties filed their respective comments to each other's
Jr. maintains that the CA correctly enjoined the implementation of the preventive memoranda.106Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu
suspension order given his clear and unmistakable right to public office, and that it of Comment,107 simply stating that it was mutually agreed upon that the Office of
is clear that he could not be held administratively liable for any of the charges the Ombudsman would file its Memorandum, consistent with its desire to state its
against him since his subsequent re-election in 2013 operated as a condonation of "institutional position."108 In her Memorandum and Comment to Binay, Jr.'s
any administrative offenses he may have committed during his previous term.88 As Memorandum, the Ombudsman pleaded, among others, that this Court abandon the
regards the CA's order for the Ombudsman to comment on his petition for condonation doctrine.109 In view of the foregoing, the case was deemed submitted
contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable for resolution.chanrobleslaw
officer and, hence, cannot be removed from office except by way of impeachment,
an action for contempt imposes the penalty of fine and imprisonment, without The Issues Before the Court
necessarily resulting in removal from office. Thus, the fact that the Ombudsman is
an impeachable officer should not deprive the CA of its inherent power to punish Based on the parties' respective pleadings, and as raised during the oral arguments
contempt.89 conducted before this Court, the main issues to be resolved in seriatim are as
follows:
Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral
arguments before it were held,91 granting Binay, Jr.'s prayer for a WPI, which
further enjoined the implementation of the preventive suspension order. In so I. Whether or not the present petition, and not motions for reconsideration of
ruling, the CA found that Binay, Jr. has an ostensible right to the final relief prayed the assailed CA issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No.
for, namely, the nullification of the preventive suspension order, in view of the 139504, is the Ombudsman's plain, speedy, and adequate
condonation doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the remedy;cralawlawlibrary
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that
his re-election in 2013 as City Mayor of Makati condoned any administrative liability II. Whether or not the CA has subject matter jurisdiction over the main
arising from anomalous activities relative to the Makati Parking Building project petition for certiorari in CA-G.R. SP No. 139453;cralawlawlibrary
from 2007 to 2013.93 In this regard, the CA added that, although there were acts III. Whether or not the CA has subject matter jurisdiction to issue a TRO
which were apparently committed by Binay, Jr. beyond his first term — namely, the and/or WPI enjoining the implementation of a preventive suspension order
alleged payments on July 3, July 4, and July 24, 2013,94 corresponding to the issued by the Ombudsman;cralawlawlibrary
services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively IV. Whether or not the CA gravely abused its discretion in issuing the TRO and
liable therefor based on the cases of Salalima v. Guingona, Jr.,95 and Mayor eventually, the WPI in CA-G.R. SP No. 139453 enjoining the
Garcia v. Mojica96 wherein the condonation doctrine was still applied by the Court implementation of the preventive suspension order against Binay, Jr. based
although the payments were made after the official's re-election, reasoning that the on the condonation doctrine; and
payments were merely effected pursuant to contracts executed before said re- V. Whether or not the CA's directive for the Ombudsman to ' comment on
election.97 To this, the CA added that there was no concrete evidence of Binay, Jr.'s Binay, Jr.'s petition for contempt in CA- G.R. SP No. 139504 is improper
participation for the alleged payments made on July 3, 4, and 24, 2013.98 and illegal.

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015
Resolution, the Ombudsman filed a supplemental petition99 before this Court, The Ruling of the Court
arguing that the condonation doctrine is irrelevant to the determination of whether
the evidence of guilt is strong for purposes of issuing preventive suspension orders. The petition is partly meritorious.chanrobleslaw
The Ombudsman also maintained that a reliance on the condonation doctrine is a
matter of defense, which should have been raised by Binay, Jr. before it during the
I.
administrative proceedings, and that, at any rate, there is no condonation because
Binay, Jr. committed acts subject of the OMB Complaint after his re-election in
A common requirement to both a petition for certiorari and a petition for prohibition
2013.100
taken under Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has

3
no other plain, speedy, and adequate remedy in the ordinary course of law. Sections criminal case, relief from an order of arrest is urgent and the granting of such relief
1 and 2 thereof provide: by the trial court is improbable; (g) where the proceedings in the lower court are a
nullity for lack of due process; (h) where the proceedings were ex parte or in which
Section 1. Petition for certiorari. - When any tribunal, board or officer exercising the petitioner had no opportunity to object; and (i) where the issue raised is one
judicial or quasi-judicial functions has acted without or in excess of its or his purely of law or where public interest is involved.113
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate In this case, it is ineluctably clear that the above-highlighted exceptions attend
remedy in the ordinary course of law, a person aggrieved thereby may file a since, for the first time, the question on the authority of the CA - and of this Court,
verified petition in the proper court, alleging the facts with certainty and praying for that matter - to enjoin the implementation of a preventive suspension order
that judgment be rendered annulling or modifying the proceedings of such tribunal, issued by the Office of the Ombudsman is put to the fore. This case tests the
board or officer, and granting such incidental reliefs as law and justice may require. constitutional and statutory limits of the fundamental powers of key government
institutions - namely, the Office of the Ombudsman, the Legislature, and the
xxxx Judiciary - and hence, involves an issue of transcendental public importance that
demands no less than a careful but expeditious resolution. Also raised is the equally
Section 2. Petition for prohibition. - When the proceedings of any tribunal, important issue on the propriety of the continuous application of the condonation
corporation, board, officer or person, whether exercising judicial, quasi-judicial or doctrine as invoked by a public officer who desires exculpation from administrative
ministerial functions, are without or in excess of its or his jurisdiction, or with grave liability. As such, the Ombudsman's direct resort to certiorari and prohibition before
abuse of discretion amounting to lack or excess of jurisdiction, and there is no this Court, notwithstanding her failure to move for the prior reconsideration of the
appeal, or any other plain, speedy, and adequate remedy in the ordinary assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the
course of law, a person aggrieved thereby may file a verified petition in the proper CA, is justified.chanrobleslaw
court, alleging the facts r with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or II.
matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require. Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is
nonetheless proper to resolve the issue on the CA's lack of subject matter
x x x x (Emphases supplied) jurisdiction over the main petition for certiorari in CA-G.R. SP No. 139453, in view
of the well-established rule that a court's jurisdiction over the subject matter may
Hence, as a general rule, a motion for reconsideration must first be filed with the be raised at any stage of the proceedings. The rationale is that subject matter
lower court prior to resorting to the extraordinary remedy of certiorari or prohibition jurisdiction is conferred by law, and the lack of it affects the very authority of the
since a motion for reconsideration may still be considered as a plain, speedy, and court to take cognizance of and to render judgment on the action.115 Hence, it
adequate remedy in the ordinary course of law. The rationale for the pre-requisite is should be preliminarily determined if the CA indeed had subject matter jurisdiction
to grant an opportunity for the lower court or agency to correct any actual or over the main CA-G.R. SP No. 139453 petition, as the same determines the validity
perceived error attributed to it by the re-examination of the legal and factual of all subsequent proceedings relative thereto. It is noteworthy to point out that
circumstances of the case.110 Binay, Jr. was given the opportunity by this Court to be heard on this issue,116 as
he, in fact, duly submitted his opposition through his comment to the Ombudsman's
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of Memorandum.117 That being said, the Court perceives no reasonable objection
all other legal remedies and the danger of failure of justice without the writ, that against ruling on this issue.
must usually determine the propriety of certiorari [or prohibition]. A remedy is
plain, speedy[,] and adequate if it will promptly relieve the petitioner from the The Ombudsman's argument against the CA's lack of subject matter jurisdiction
injurious effects of the judgment, order, or resolution of the lower court or agency, over the main petition, and her corollary prayer for its dismissal, is based on her
x x x."111 interpretation of Section 14, RA 6770, or the Ombudsman Act,118 which reads in full:

In this light, certain exceptions were crafted to the general rule requiring a prior Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay
motion for reconsideration before the filing of a petition for certiorari, which an investigation being conducted by the Ombudsman under this Act, unless there is
exceptions also apply to a petition for prohibition.112 These are: (a) where the order a prima facie evidence that the subject matter of the investigation is outside the
is a patent nullity, as where the court a quo has no jurisdiction; (b) where the jurisdiction of the Office of the Ombudsman.
questions raised in the certiorari proceedings have been duly raised and passed
upon by the lower court, or are the same as those raised and passed upon in the No court shall hear any appeal or application for remedy against the decision or
lower court; (c) where there is an urgent necessity for the resolution of the question findings of the Ombudsman, except the Supreme Court, on pure question of law.
and any further delay would prejudice the interests of the Government or of the
petitioner or the subject matter of the action is perishable; (d) where, under the The subject provision may be dissected into two (2) parts.
circumstances, a motion for reconsideration would be useless; (e) where petitioner
was deprived of due process and there is extreme urgency for relief; (f) where, in a The first paragraph of Section 14, RA 6770 is a prohibition against any court
4
(except the Supreme Court119) from issuing a writ of injunction to delay an
investigation being conducted by the Office of the Ombudsman. Generally speaking, A. The Senate deliberations cited by the
"[injunction is a judicial writ, process or proceeding whereby a party is ordered to Ombudsman do not pertain to the second
do or refrain from doing a certain act. It may be the main action or merely a paragraph of Section 14, RA 6770.
provisional remedy for and as an incident in the main action."120 Considering the
textual qualifier "to delay," which connotes a suspension of an action while the main The Ombudsman submits that the legislative intent behind Section 14, RA 6770,
case remains pending, the "writ of injunction" mentioned in this paragraph could particularly on the matter of judicial review of her office's decisions or findings, is
only refer to injunctions of the provisional kind, consistent with the nature of a supposedly clear from the following Senate deliberations:127
provisional injunctive relief.
Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the
The exception to the no injunction policy is when there is prima facie evidence that phrase "petition for" delete the word "review" and in lieu thereof, insert the
the subject matter of the investigation is outside the office's jurisdiction. The Office word CERTIORARI. So that, review or appeal from the decision of the Ombudsman
of the Ombudsman has disciplinary authority over all elective and appointive would only be taken not on a petition for review, but on certiorari.
officials of the government and its subdivisions, instrumentalities, and agencies,
with the exception only of impeachable officers, Members of Congress, and the The President [Jovito R. Salonga]. What is the practical effect of that? Will
Judiciary.121 Nonetheless, the Ombudsman retains the power to investigate any it be more difficult to reverse the decision under review?
serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if Senator Angara. It has two practical effect ways, Mr. President. First is that the
warranted.122 Note that the Ombudsman has concurrent jurisdiction over certain findings of facts of the Ombudsman would be almost conclusive if
administrative cases which are within the jurisdiction of the regular courts or supported by substantial evidence. Second, we would not unnecessarily
administrative agencies, but has primary jurisdiction to investigate any act or clog the docket of the Supreme Court. So, it in effect will be a very strict
omission of a public officer or employee who is under the jurisdiction of the appeal procedure.
Sandiganbayan.123
xxxx
On the other hand, the second paragraph of Section 14, RA 6770 provides that
no appeal or application for remedy may be heard against the decision or findings of Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there
the Ombudsman, with the exception of the Supreme Court on pure questions of law. are exhaustive remedies available to a respondent, the respondent himself has the
This paragraph, which the Ombudsman particularly relies on in arguing that the CA right to exhaust the administrative remedies available to him?
had no jurisdiction over the main CA-G.R. SP No. 139453 petition, as it is
supposedly this Court which has the sole jurisdiction to conduct a judicial review of Senator Angara. Yes, Mr. President, that is correct.
its decisions or findings, is vague for two (2) reasons: (1) it is unclear what the
phrase "application for remedy" or the word "findings" refers to; and (2) it does not Senator Guingona. And he himself may cut the proceeding short by appealing to
specify what procedural remedy is solely allowable to this Court, save that the same the Supreme Court only on certiorari ?
be taken only against a pure question of law. The task then, is to apply the relevant
principles of statutory construction to resolve the ambiguity. Senator Angara. On question of law, yes.

"The underlying principle of all construction is that the intent of the legislature Senator Guingona. And no other remedy is available to him?
should be sought in the words employed to express it, and that when found[,] it
should be made to govern, x x x. If the words of the law seem to be of doubtful Senator Angara. Going to the Supreme Court, Mr. President?
import, it may then perhaps become necessary to look beyond them in order to
ascertain what was in the legislative mind at the time the law was enacted; what Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is
the circumstances were, under which the action was taken; what evil, if any, was a presidential appointee who is the respondent, if there is f no certiorari available, is
meant to be redressed; x x x [a]nd where the law has contemporaneously been put the respondent given the right to exhaust his administrative remedies first before
into operation, and in doing so a construction has necessarily been put upon it, this the Ombudsman can take the appropriate action?
construction, especially if followed for some considerable period, is entitled to great
respect, as being very probably a true expression of the legislative purpose, and is Senator Angara. Yes, Mr. President, because we do not intend to change the
not lightly to be overruled, although it is not conclusive."124 administrative law principle that before one can go to court, he must exhaust all
administrative remedies xxx available to him before he goes and seeks judicial
As an aid to construction, courts may avail themselves of the actual proceedings of review.
the legislative body in interpreting a statute of doubtful meaning. In case of doubt
as to what a provision of a statute means, the meaning put to the provision during xxxx
the legislative deliberations may be adopted,125 albeit not controlling in the
interpretation of the law.126 Senator [Neptali A.] Gonzales. What is the purpose of the Committee in
5
changing the method of appeal from one of a petition for review to a
petition for certiorari? The President. Then if that is so, we have to modify Section 17.

Senator Angara. To make it consistent, Mr. President, with the provision Senator Angara. That is why, Mr. President, some of our Colleagues have made a
here in the bill to the effect that the finding of facts of the Ombudsman is reservation to introduce an appropriate change during the period of Individual
conclusive if supported by substantial evidence. Amendments.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer xxxx
to which I concur, that in an appeal by certiorari , the appeal is more difficult.
Because in certiorari it is a matter of discretion on the part of the court, The President. All right. Is there any objection to the amendment inserting the
whether to give due course to the petition or dismiss it outright. Is that not word CERTIORARI instead of "review"? [Silence] Hearing none, the same is
correct, Mr. President? approved.128

Senator Angara. That is absolutely correct, Mr. President Upon an assiduous scrutiny of these deliberations, the Court is, however,
unconvinced that the provision debated on was Section 14, RA 6770, as the
Senator Gonzales. And in a petition for certiorari , the issue is limited to Ombudsman invokes. Note that the exchange begins with the suggestion of Senator
whether or not the Ombudsman here has acted without jurisdiction and has Angara to delete the word "review" that comes after the phrase "petition for review"
committed a grave abuse of discretion amounting to lack of jurisdiction. Is and, in its stead, insert the word "certiorari" so that the "review or appeal from the
that not the consequence, Mr. President. decision of the Ombudsman would not only be taken on a petition for review, but
on certiorari" The ensuing exchange between Senators Gonzales and Angara then
Senator Angara. That is correct, Mr. President. dwells on the purpose of changing the method of review from one of a petition for
review to a petition for certiorari - that is, to make "the appeal x x x more difficult."
Senator Gonzales. And it is, therefore, in this sense that the intention of the Ultimately, the amendment to the change in wording, from "petition for review" to
Committee is to make it harder to have a judicial review, but should be "petition for certiorari" was approved.
limited only to cases that I have enumerated.
Noticeably, these references to a "petition for review" and the proposed "petition
Senator Angara. Yes, Mr. President. for certiorari" are nowhere to be found in the text of Section 14, RA 6770. In fact, it
was earlier mentioned that this provision, particularly its second paragraph, does
Senator Gonzales. I think, Mr. President, our Supreme Court has made a not indicate what specific procedural remedy one should take in assailing a decision
distinction between a petition for review and a petition for certiorari ; because or finding of the Ombudsman; it only reveals that the remedy be taken to this Court
before, under the 1935 Constitution appeal from any order, ruling or decision of the based on pure questions of law. More so, it was even commented upon during the
COMELEC shall be by means of review. But under the Constitution it is now oral arguments of this case129 that there was no debate or clarification made on the
by certiorari and the Supreme Court said that by this change, the court exercising current formulation of the second paragraph of Section 14, RA 6770 per the
judicial review will not inquire into the facts, into the evidence, because we will not available excerpts of the Senate deliberations. In any case, at least for the above-
go deeply by way of review into the evidence on record but its authority will be cited deliberations, the Court finds no adequate support to sustain the
limited to a determination of whether the administrative agency acted without, or in Ombudsman's entreaty that the CA had no subject matter jurisdiction over the main
excess of, jurisdiction, or committed a grave abuse of discretion. So, I assume that CA-G.R. SP No. 139453 petition.
that is the purpose of this amendment, Mr. President.
On the contrary, it actually makes greater sense to posit that these deliberations
Senator Angara. The distinguished Gentleman has stated it so well. refer to another Ombudsman Act provision, namely Section 27, RA 6770. This is
because the latter textually reflects the approval of Senator Angara's suggested
Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very amendment, i.e., that the Ombudsman's decision or finding may be assailed in a
well stated, Mr. President. petition for certiorari to this Court (fourth paragraph), and further, his comment on
the conclusive nature of the factual findings of the Ombudsman, if supported by
xxxx substantial evidence (third paragraph):

The President. It is evident that there must be some final authority to Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the
render decisions. Should it be the Ombudsman or should it be the Supreme Office of the Ombudsman are immediately effective and executory.
Court?
A motion for reconsideration of any order, directive or decision of the Office of the
Senator Angara. As I understand it, under our scheme of government, Mr. Ombudsman must be filed within five (5) days after receipt of written notice and
President, it is and has to be the Supreme Court to make the final shall be entertained only on any of the following
determination. grounds:chanRoblesvirtualLawlibrary
6
(1) New evidence has been discovered which materially affects the order, directive law." ;cralawlawlibrary
or decision;cralawlawlibrary
As a general rule, the second paragraph of Section 14, RA 6770 bans the whole
(2) Errors of law or irregularities have been committed prejudicial to the interest of range of remedies against issuances of the Ombudsman, by prohibiting: (a)
the movant. The motion for reconsideration shall be resolved within three (3) days an appeal against any decision or finding of the Ombudsman, and (b) "any
from filing: Provided, That only one motion for reconsideration shall be application of remedy" (subject to the exception below) against the same. To clarify,
entertained.ChanRoblesVirtualawlibrary the phrase "application for remedy," being a generally worded provision, and being
Findings of fact by the Office of the Ombudsman when supported by substantial separated from the term "appeal" by the disjunctive "or",133 refers to any remedy
evidence are conclusive. Any order, directive or decision imposing the penalty of (whether taken mainly or provisionally), except an appeal, following the
public censure or reprimand, suspension of not more than one (1) month's salary maxim generalia verba sunt generaliter intelligenda: general words are to be
shall be final and unappealable. understood in a general sense.134 By the same principle, the word "findings," which
is also separated from the word "decision" by the disjunctive "or", would therefore
In all administrative disciplinary cases, orders, directives, or decisions of refer to any finding made by the Ombudsman (whether final or provisional), except
the Office of the Ombudsman may be appealed to the Supreme Court by a decision.
filing a petition for certiorari within ten (10) days from receipt of the
written notice of the order, directive or decision or denial of the motion for The subject provision, however, crafts an exception to the foregoing general rule.
reconsideration in accordance with Rule 45 of the Rules of Court. While the specific procedural vehicle is not explicit from its text, it is fairly deducible
that the second paragraph of Section 14, RA 6770 excepts, as the only allowable
The above rules may be amended or modified by the Office of the ' Ombudsman as remedy against "the decision or findings of the Ombudsman," a Rule 45 appeal,
the interest of justice may require. (Emphasis and underscoring supplied) for the reason that it is the only remedy taken to the Supreme Court on
"pure questions of law," whether under the 1964 Rules of Court or the 1997
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating Rules of Civil Procedure:
that a "petition for certiorari" should be taken in accordance with Rule 45 of the
Rules of Court, as it is well-known that under the present 1997 Rules of Civil Rule 45, 1964 Rules of Court
Procedure, petitions for certiorari are governed by Rule 65 of the said Rules.
However, it should be discerned that the Ombudsman Act was passed way back in RULE 45
1989130and, hence, before the advent of the 1997 Rules of Civil Procedure.131 At that Appeal from Court of Appeals to Supreme Court
time, the governing 1964 Rules of Court,132 consistent with Section 27, RA 6770,
referred to the appeal taken thereunder as a petition for certiorari , thus possibly xxxx
explaining the remedy's textual denomination, at least in the provision's final
approved version: Section 2. Contents of Petition. — The petition shall contain a concise statement of
the matters involved, the assignment of errors made in the court below, and the
RULE 45 reasons relied on for the allowance of the petition, and it should be accompanied
Appeal from Court of Appeals to Supreme Court with a true copy of the judgment sought to be reviewed, together with twelve (12)
copies of the record on appeal, if any, and of the petitioner's brief as filed in the
SECTION 1. Filing of Petition with Supreme Court. - A party may appeal Court of Appeals. A verified statement of the date when notice of judgment and
by certiorari , from a judgment of the Court of Appeals, by filing with the Supreme denial of the motion for reconsideration, if any, were received shall accompany the
Court a petition forcertiorari , within fifteen (15) days from notice of judgment or petition.
of the denial of his motion for reconsideration filed in due time, and paying at the
same time, to the clerk of said court the corresponding docketing fee. The petition Only questions of law may be raised in the petition and must be distinctly set
shall not be acted upon without proof of service of a copy thereof to the Court of forth. If no record on appeal has been filed in the Court of Appeals, the clerk of the
Appeals. (Emphasis supplied) Supreme Court, upon admission of the petition, shall demand from the Court of
Appeals the elevation of the whole record of the case. (Emphasis and underscoring
B. Construing the second paragraph of supplied)
Section 14, RA 6770.
Rule 45, 1997 Rules of Civil Procedure
The Senate deliberations' lack of discussion on the second paragraph of Section 14,
RA 6770 notwithstanding, the other principles of statutory construction can apply to
ascertain the meaning of the provision.
RULE 45
Appeal by Certiorari to the Supreme Court
To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court
shall hear any appeal or application for remedy against the decision or
Section 1. Filing of petition with Supreme Court. - A party desiring to appeal
findings of the Ombudsman, except the Supreme Court, on pure question of
7
by certiorarifrom a judgment, final order or resolution of the Court of Appeals, the Court of Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, ratiocinations and ruling in Fabian were recounted:
whenever authorized by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition may include an application for a writ of preliminary The case of Fabian v. Desierto arose from the doubt created in the application of
injunction or other provisional remedies and shall raise only questions of law, Section 27 of R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O.
which must be distinctly set forth. The petitioner may seek the same provisional No. 7 (Rules of Procedure of the Office of the Ombudsman) on the availability of
remedies by verified motion filed in the same action or proceeding at any time appeal before the Supreme Court to assail a decision or order of the Ombudsman in
during its pendency. (Emphasis and underscoring supplied) administrative cases. In Fabian, we invalidated Section 27 of R.A. No. 6770
(and Section 7, Rule III of A.O. No. 7 and the other rules implementing the
That the remedy excepted in the second paragraph of Section 14, RA 6770 could be Act) insofar as it provided for appeal by certiorari under Rule 45 from the
a petition for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules decisions or orders of the Ombudsman in administrative cases. We held
of Procedure is a suggestion that defies traditional norms of procedure. It is basic that Section 27 of R.A. No. 6770 had the effect, not only of increasing the
procedural law that a Rule 65 petition is based on errors of jurisdiction, and not appellate jurisdiction of this Court without its advice and concurrence in
errors of judgment to which the classifications of (a) questions of fact, (b) questions violation of Section 30, Article VI of the Constitution; it was also
of law, or (c) questions of mixed fact and law, relate to. In fact, there is no inconsistent with Section 1, Rule 45 of the Rules of Court which provides
procedural rule, whether in the old or new Rules, which grounds a Rule 65 petition that a petition for review on certiorari shall apply only to a review of
on pure questions of law. Indeed, it is also a statutory construction principle that "judgments or final orders of the Court of Appeals, the Sandiganbayan, the
the lawmaking body cannot be said to have intended the establishment of Court of Tax Appeals, the Regional Trial Court, or other courts authorized
conflicting and hostile systems on the same subject. Such a result would render by law." We pointedly said:chanRoblesvirtualLawlibrary
legislation a useless and idle ceremony, and subject the laws to uncertainty and As a consequence of our ratiocination that Section 27 of Republic Act No. 6770
unintelligibility.135 There should then be no confusion that the second paragraph of should be struck down as unconstitutional, and in line with the regulatory
Section 14, RA 6770 refers to a Rule 45 appeal to this Court, and no other. In sum, philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised
the appropriate construction of this Ombudsman Act provision is that all remedies Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in
against issuances of the Office of the Ombudsman are prohibited, except the above- administrative disciplinary cases should be taken to the CA under the provisions of
stated Rule 45 remedy to the Court on pure questions of law. Rule 43.141 (Emphasis supplied)

C. Validity of the second paragraph of Since the second paragraph of Section 14, RA 6770 limits the remedy against
Section 14, RA 6770. "decision or findings" of the Ombudsman to a Rule 45 appeal and thus - similar to
the fourth paragraph of Section 27, RA 6770142 - attempts to effectively increase the
Of course, the second paragraph of Section 14, RA 6770's extremely limited Supreme Court's appellate jurisdiction without its advice and concurrence,143 it is
restriction on remedies is inappropriate since a Rule 45 appeal -which is within the therefore concluded that the former provision is also unconstitutional and perforce,
sphere of the rules of procedure promulgated by this Court - can only be taken invalid. Contrary to the Ombudsman's posturing,144Fabian should squarely apply
against final decisions or orders of lower courts,136 and not against "findings" of since the above-stated Ombudsman Act provisions are in part materia in that they
quasi-judicial agencies. As will be later elaborated upon, Congress cannot interfere "cover the same specific or particular subject matter,"145 that is, the manner of
with matters of procedure; hence, it cannot alter the scope of a Rule 45 appeal so judicial review over issuances of the Ombudsman.
as to apply to interlocutory "findings" issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes Note that since the second paragraph of Section 14, RA 6770 is clearly
away the remedy of certiorari, grounded on errors of jurisdiction, in denigration of determinative of the existence of the CA's subject matter jurisdiction over the main
the judicial power constitutionally vested in courts. In this light, the second CA-G.R. SP No. 139453 petition, including all subsequent proceedings relative
paragraph of Section 14, RA 6770 also increased this Court's appellate jurisdiction, thereto, as the Ombudsman herself has developed, the Court deems it proper to
without a showing, however, that it gave its consent to the same. The provision is, resolve this issue ex mero motu (on its own motion146). This procedure, as was
in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as above- similarly adopted in Fabian, finds its bearings in settled case law:
cited), which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138
The conventional rule, however, is that a challenge on constitutional grounds must
In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as
be raised by a party to the case, neither of whom did so in this case, but that is not
unconstitutional since it had the effect of increasing the appellate jurisdiction of the
an inflexible rule, as we shall explain.
Court without its advice and concurrence in violation of Section 30, Article VI of the
1987 Constitution.139 Moreover, this provision was found to be inconsistent with
Since the constitution is intended for the observance of the judiciary and other
Section 1, Rule 45 of the present 1997 Rules of Procedure which, as above-
departments of the government and the judges are sworn to support its provisions,
intimated, applies only to a review of "judgments or final orders of the Court of
the courts are not at liberty to overlook or disregard its commands or countenance
Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or
evasions thereof. When it is clear , that a statute transgresses the authority vested
other courts authorized by law;" and not of quasi-judicial agencies, such as the
in a legislative body, it is the duty of the courts to declare that the constitution, and
Office of the Ombudsman, the remedy now being a Rule 43 appeal to the
not the statute, governs in a case before them for judgment.
8
 CA's authority to issue the assailed TRO and WPI against the implementation of the
Thus, while courts will not ordinarily pass upon constitutional questions which are preventive suspension order, incidental to that main case.
not raised in the pleadings, the rule has been recognized to admit of certain
exceptions. It does not preclude a court from inquiring into its own jurisdiction or III.
compel it to enter a judgment that it lacks jurisdiction to enter. If a statute on which
a court's jurisdiction in a proceeding depends is unconstitutional, the court has no From the inception of these proceedings, the Ombudsman has been adamant that
jurisdiction in the proceeding, and since it may determine whether or not it has the CA has no jurisdiction to issue any provisional injunctive writ against her office
jurisdiction, it necessarily follows that it may inquire into the constitutionality of the to enjoin its preventive suspension orders. As basis, she invokes the first
statute. paragraph of Section 14, RA 6770 in conjunction with her office's independence
under the 1987 Constitution. She advances the idea that "[i]n order to further
Constitutional questions, not raised in the regular and orderly procedure in ensure [her office's] independence, [RA 6770] likewise insulated it from judicial
the trial are ordinarily rejected unless the jurisdiction of the court below or intervention,"157particularly, "from injunctive reliefs traditionally obtainable from the
that of the appellate court is involved in which case it may be raised at any courts,"158 claiming that said writs may work "just as effectively as direct
time or on the court's own motion. The Court ex mero motu may take harassment or political pressure would."159
cognizance of lack of jurisdiction at any point in the case where that fact is
developed. The court has a clearly recognized right to determine its own jurisdiction A. The concept of Ombudsman independence.
in any proceeding.147 (Emphasis supplied)
Section 5, Article XI of the 1987 Constitution guarantees the independence of the
D. Consequence of invalidity. Office of the Ombudsman:

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed
Section 5. There is hereby created the independent Office of the Ombudsman,
by Binay, Jr. before the CA in order to nullify the preventive suspension order issued
composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
by the Ombudsman, an interlocutory order,148 hence, unappealable.149
at least one Deputy each for Luzon, Visayas[,] and Mindanao. A separate Deputy for
the military establishment may likewise be appointed. (Emphasis supplied)
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions
for certiorari against unappelable issuances150 of the Ombudsman should be filed
In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the
before the CA, and not directly before this Court:
historical underpinnings of the Office of the Ombudsman:
In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive
suspension order issued by the Office of the Ombudsman was - similar to this case - Prior to the 1973 Constitution, past presidents established several Ombudsman-like
assailed through a Rule 65 petition for certiorari filed by the public officer before the agencies to serve as the people's medium for airing grievances and for direct
CA, the Court held that "[t]here being a finding of grave abuse of discretion on the redress against abuses and misconduct in the government. Ultimately, however,
part of the Ombudsman, it was certainly imperative for the CA to grant incidental these agencies failed to fully realize their objective for lack of the political
reliefs, as sanctioned by Section 1 of Rule 65."152 independence necessary for the effective performance of their function as
government critic.
In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65
petition for certiorariassailing a final and unappealable order of the Office of the It was under the 1973 Constitution that the Office of the Ombudsman became a
Ombudsman in an administrative case, the Court remarked that "petitioner constitutionally-mandated office to give it political independence and adequate
employed the correct mode of review in this case, i.e., a special civil action powers to enforce its mandate. Pursuant to the ( 1973 Constitution, President
for certiorari before the Court of Appeals."154 In this relation, it stated that while "a Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD
special civil action for Certiorari is within the concurrent original jurisdiction of the No. 1607 and PD No. 1630, creating the Office of the Ombudsman to be known as
Supreme Court and the Court of Appeals, such petition should be initially filed with Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio,
the Court of Appeals in observance of the doctrine of hierarchy of courts." Further, any administrative act of any administrative agency, including any government-
the Court upheld Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was ruled that owned or controlled corporation. When the Office of the Tanodbayan was
the remedy against final and unappealable orders of the Office of the Ombudsman reorganized in 1979, the powers previously vested in the Special Prosecutor were
in an administrative case was a Rule 65 petition to the CA. The same verdict was transferred to the Tanodbayan himself. He was given the exclusive authority to
reached in Ruivivar156(September 16, 2008). conduct preliminary investigation of all cases cognizable by the Sandiganbayan, file
the corresponding information, and control the prosecution of these cases.
Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770,
the Court, consistent with existing jurisprudence, concludes that the CA has subject With the advent of the 1987 Constitution, a new Office of the Ombudsman was
matter jurisdiction over the main CA-G.R. SP No. 139453 petition. That being said, created by constitutional fiat. Unlike in the 1973 Constitution, its
the Court now examines the objections of the Ombudsman, this time against the independence was expressly and constitutionally guaranteed. Its objectives
are to enforce the state policy in Section 27, Article II and the standard of

9
accountability in public service under Section 1, Article XI of the 1987 Constitution.
These provisions read:chanRoblesvirtualLawlibrary (1) "[T]he independence enjoyed by the Office of the Ombudsman and by the
Section 27. The State shall maintain honesty and integrity in the public service and Constitutional Commissions shares certain characteristics - they do not owe their
take positive and effective measures against graft and corruption. existence to any act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms, the framers of
Section 1. Public office is a public trust. Public officers and employees must, at all the Constitution intended that these 'independent' bodies be insulated from
times, be accountable to the people, serve them with utmost responsibility, political pressure to the extent that the absence of 'independence' would result in
integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest the impairment of their core functions"163;cralawlawlibrary
lives.161 (Emphasis supplied)
(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must
More significantly, Gonzales III explained the broad scope of the office's mandate, have the independence and flexibility needed in the discharge of their constitutional
and in correlation, the impetus behind its independence: duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman appropriated for their operations is anathema to fiscal autonomy and
is envisioned to be the "protector of the people" against the inept, abusive, and violative not only [of] the express mandate of the Constitution, but especially as
corrupt in the Government, to function essentially as a complaints and action regards the Supreme Court, of the independence and separation of powers upon
bureau. This constitutional vision of a Philippine Ombudsman practically intends to which the entire fabric of our constitutional system is based";164 and
make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses , of the bureaucracy. Pursuant to Section 13 (8), Article XI of (3) "[T]he constitutional deliberations explain the Constitutional Commissions' need
the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize for independence. In the deliberations of the 1973 Constitution, the delegates
the vision of the Constitution. Section 21 of RA No. 6770 amended the 1935 Constitution by providing for a constitutionally-created Civil
provides:chanRoblesvirtualLawlibrary Service Commission, instead of one created by law, on the premise that the
Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the effectivity of this body is dependent on its freedom from the tentacles of
Ombudsman shall have disciplinary authority over all elective and appointive politics. In a similar manner, the deliberations of the 1987 Constitution on the
officials of the Government and its subdivisions, instrumentalities, and agencies, Commission on Audit highlighted the developments in the past
including Members of the Cabinet, local government, government-owned or Constitutions geared towards insulating the Commission on Audit from political
controlled corporations and their subsidiaries, except over officials who may be pressure."165
removed only by impeachment or over Members of Congress, and the
Judiciary.ChanRoblesVirtualawlibrary At bottom, the decisive ruling in Gonzales III, however, was that the independence
As the Ombudsman is expected to be an "activist watchman," the < Court has of the Office of the Ombudsman, as well as that of the foregoing independent
upheld its actions, although not squarely falling under the broad powers granted bodies, meant freedom from control or supervision of the Executive
[to] it by the Constitution and by RA No. 6770, if these actions are reasonably in Department:
line with its official function and consistent with the law and the Constitution.
[T]he independent constitutional commissions have been consistently intended by
The Ombudsman's broad investigative and disciplinary powers include all acts of the framers to be independent from executive control or supervision or any
malfeasance, misfeasance, and nonfeasance of all public officials, including form of political influence. At least insofar as these bodies are concerned,
Members of the Cabinet and key Executive officers, during their tenure. To support jurisprudence is not scarce on how the "independence" granted to these
these broad powers, the Constitution saw it fit to insulate the Office of the bodies prevents presidential interference.
Ombudsman from the pressures and influence of officialdom and partisan
politics and from fear of external reprisal by making it an "independent" In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we
office, x x x. emphasized that the Constitutional Commissions, which have been characterized
under the Constitution as "independent," are not under the control of the
xxxx President, even if they discharge functions that are executive in nature. The Court
declared as unconstitutional the President's act of temporarily appointing the
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very respondent in that case as Acting Chairman of the [Commission on Elections]
powerful government constitutional agency that is considered "a notch above other "however well-meaning" it might have been.
grievance-handling investigative bodies." It has powers, both constitutional and
statutory, that are commensurate , with its daunting task of enforcing accountability In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically
of public officers.162 (Emphasis and underscoring supplied) stated that the tenure of the commissioners of the independent Commission on
Human Rights could not be placed under the discretionary power of the
Gonzales III is the first case which grappled with the meaning of the Ombudsman's President.
independence vis-a-vis the independence of the other constitutional bodies.
Pertinently, the Court observed: xxxx
10
 writ of injunction shall be issued by any court," the Ombudsman herself concedes
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot that the prohibition does not cover the Supreme Court.170 As support, she cites the
be inferior - but is similar in degree and kind - to the independence similarly following Senate deliberations:
guaranteed by the Constitution to the Constitutional Commissions since all these
offices fill the political interstices of a republican democracy that are crucial to its Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is
existence and proper functioning.166 (Emphases and underscoring supplied) necessary. I would just like to inquire for the record whether below the
Supreme Court, it is understood that there is no injunction policy against
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides the Ombudsman by lower courts. Or, is it necessary to have a special
that "[a] Deputy or the Special Prosecutor, may be removed from office by the paragraph for that?
President for any of the grounds provided for the removal of the Ombudsman, and
after due process," partially unconstitutional insofar as it subjected the Deputy Senator Angara. Well, there is no provision here, Mr. President, that will prevent
Ombudsman to the disciplinary authority of the President for violating the principle an injunction against the Ombudsman being issued.
of independence. Meanwhile, the validity of Section 8 (2), RA 6770 was maintained
insofar as the Office of the Special Prosecutor was concerned since said office was Senator Maceda. In which case, I think that the intention, this being one of
not considered to be constitutionally within the Office of the Ombudsman and is, the highest constitutional bodies, is to subject this only to certiorari to the
hence, not entitled to the independence the latter enjoys under the Constitution.167 Supreme Court. I think an injunction from the Supreme Court is, of course,
in order but no lower courts should be allowed to interfere. We had a very
As may be deduced from the various discourses in Gonzales III, the concept of bad experience with even, let us say, the Forestry Code where no injunction is
Ombudsman's independence covers three (3) things: supposed to be issued against the Department of Natural Resources. Injunctions
are issued right and left by RTC judges all over the country.
First: creation by the Constitution, which means that the office cannot be
abolished, nor its constitutionally specified functions and privileges, be removed, The President. Why do we not make an express provision to that effect?
altered, or modified by law, unless the Constitution itself allows, or an amendment
thereto is made;cralawlawlibrary Senator Angara. We would welcome that, Mr. President.

Second: fiscal autonomy, which means that the office "may not be obstructed The President. No [writs of injunction] from the trial courts other than the
from [its] freedom to use or dispose of [its] funds for purposes germane to [its] Supreme Court.
functions;168hence, its budget cannot be strategically decreased by officials of the
political branches of government so as to impair said functions; and Senator Maceda. I so move, Mr. President, for that amendment.

Third: insulation from executive supervision and control, which means that The President. Is there any objection? [Silence] Hearing none, the same is
those within the ranks of the office can only be disciplined by an internal authority. approved.171

Evidently, all three aspects of independence intend to protect the Office of the Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the
Ombudsman from political harassment and pressure, so as to free it from the 1987 Constitution, acts of the Ombudsman, including interlocutory orders, are
"insidious tentacles of politics."169 subject to the Supreme Court's power of judicial review As a corollary, the Supreme
Court may issue ancillary mjunctive writs or provisional remedies in the exercise of
That being the case, the concept of Ombudsman independence cannot be invoked its power of judicial review over matters pertaining to ongoing investigations by the
as basis to insulate the Ombudsman from judicial power constitutionally vested unto Office of the Ombudsman. Respecting the CA, however, the Ombudsman begs to
the courts. Courts are apolitical bodies, which are ordained to act as impartial differ.172
tribunals and apply even justice to all. Hence, the Ombudsman's notion that it can
be exempt from an incident of judicial power - that is, a provisional writ of With these submissions, it is therefore apt to examine the validity of the first
injunction against a preventive suspension order - clearly strays from the concept's paragraph of Section 14, RA 6770 insofar as it prohibits all courts, except this
rationale of insulating the office from political harassment or pressure. Court, from issuing provisional writs of injunction to enjoin an Ombudsman
investigation. That the constitutionality of this provision is the lis mota of this case
B. The first paragraph of Section 14, RA has not been seriously disputed. In fact, the issue anent its constitutionality was
6770 in light of the powers of Congress and the properly raised and presented during the course of these proceedings.173 More
Court under the 1987 Constitution. importantly, its resolution is clearly necessary to the complete disposition of this
case.174
The Ombudsman's erroneous abstraction of her office's independence
notwithstanding, it remains that the first paragraph of Section 14, RA 6770 textually In the enduring words of Justice Laurel in Angara v. The Electoral
prohibits courts from extending provisional injunctive relief to delay any Commission (Angara),175 the "Constitution has blocked out with deft strokes and in
investigation conducted by her office. Despite the usage of the general phrase "[n]o bold lines, allotment of power to the executive, the legislative[,] and the judicial
11
departments of the government."176 The constitutional demarcation of the three In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s
fundamental powers of government is more commonly known as the principle of main petition for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of
separation of powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),177 the BP 129, as amended:
Court held that "there is a violation of the separation of powers principle when one
branch of government unduly encroaches on the domain of another." 178 In Section 9. Jurisdiction. - The Court of Appeals shall exercise:
particular, "there is a violation of the principle when there is impermissible (a)
interference with and/or (b) assumption of another department's functions."179
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari,
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated habeas corpus, and quo warranto, and auxiliary writs or processes,
to the Supreme Court and all such lower courts: whether or not in aid of its appellate jurisdiction[.]

Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. Note that the CA's certiorari jurisdiction, as above-stated, is not only original but
also concurrent with the Regional Trial Courts (under Section 21 (1), Chapter II of
Judicial power includes the duty of the courts of justice to settle actual controversies BP 129), and the Supreme Court (under Section 5, Article VIII of the 1987
involving rights which are legally demandable and enforceable, and to determine Philippine Constitution). In view of the concurrence of these courts' jurisdiction over
whether or not there has been a grave abuse of discretion amounting to lack or petitions for certiorari, the doctrine of hierarchy of courts should be followed.
excess of jurisdiction on the part of any branch or instrumentality of the In People v. Cuaresma,188 the doctrine was explained as follows:
Government.
[T]his concurrence of jurisdiction is not x x x to be taken as according to parties
This Court is the only court established by the Constitution, while all other lower seeking any of the writs an absolute, unrestrained freedom of choice of the court to
courts may be established by laws passed by Congress. Thus, through the which application therefor will be directed. There is after all a hierarchy of courts.
passage of Batas Pambansa Bilang (BP) 129,180 known as "The Judiciary That hierarchy is determinative of the venue of appeals, and should also serve as a
Reorganization Act of 1980," the Court of Appeals,181 the Regional Trial general determinant of the appropriate forum for petitions for the extraordinary
Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal writs. A becoming regard for that judicial hierarchy most certainly indicates that
Circuit Trial Courts183were established. Later, through the passage of RA petitions for the issuance of extraordinary writs against first level ("inferior") courts
1125,184 and Presidential Decree No. (PD) 1486,185the Court of Tax Appeals, and the should be filed with the Regional Trial Court, and those against the latter, with the
Sandiganbayan were respectively established. Court of Appeals.189

In addition to the authority to establish lower courts, Section 2, Article VIII of When a court has subject matter jurisdiction over a particular case, as conferred
the 1987 Constitution empowers Congress to define, prescribe, and apportion unto it by law, said court may then exercise its jurisdiction acquired over that
the jurisdiction of all courts, exceptthat it may not deprive the Supreme case, which is called judicial power.
Court of its jurisdiction over cases enumerated in Section 5186 of the same
Article: Judicial power, as vested in the Supreme Court and all other courts established by
law, has been defined as the "totality of powers a court exercises when it
Section 2. The Congress shall have the power to define, prescribe, ' and apportion assumes jurisdiction and hears and decides a case."190 Under Section 1, Article
the jurisdiction of the various courts but may not deprive the Supreme Court of its VIII of the 1987 Constitution, it includes "the duty of the courts of justice to settle
jurisdiction over cases enumerated in Section 5 hereof. actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
x x x xChanRoblesVirtualawlibrary of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government."
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the
subject matter of an action. In The Diocese ofBacolod v. Commission on In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial
Elections,187 subject matter jurisdiction was defined as "the authority 'to hear and power under the 1987 Constitution:
determine cases of the general class to which the proceedings in question
belong and is conferred by the sovereign authority which organizes the The first part of the authority represents the traditional concept of judicial power,
court and defines its powers.'" involving the settlement of conflicting rights as conferred by law. The second part of
the authority represents a broadening of f judicial power to enable the courts of
Among others, Congress defined, prescribed, and apportioned the subject matter justice to review what was before forbidden territory, to wit, the discretion of the
jurisdiction of this Court (subject to the aforementioned constitutional limitations), political departments of the government.
the Court of Appeals, and the trial courts, through the passage of BP 129, as
amended. As worded, the new provision vests in the judiciary, and particularly the Supreme

12
Court, the power to rule upon even the wisdom of the decisions of the executive "Promulgate rules concerning the protection and enforcement of constitutional
and the legislature and to declare their acts invalid for lack or excess of jurisdiction rights, pleading, practice, and procedure in all courts, the admission to the practice
because they are tainted with grave abuse of discretion. The catch, of course, is the of law, the integrated bar, and legal assistance to the underprivileged^" in the
meaning of "grave abuse of discretion," which is a very elastic phrase that can enumeration of powers of the Supreme Court. Later, Commissioner Felicitas S.
expand or contract according to the disposition of the judiciary.192 Aquino proposed to delete the former sentence and, instead, after the word
"[underprivileged," place a comma (,) to be followed by "the phrase with the
Judicial power is never exercised in a vacuum. A court's exercise of the concurrence of the National Assembly." Eventually, a compromise formulation was
jurisdiction it has acquired over a particular case conforms to the limits and reached wherein (a) the Committee members agreed to Commissioner Aquino's
parameters of the rules of procedure duly promulgated by this Court. In proposal to delete the phrase "the National Assembly may repeal, alter, or
other words, procedure is the framework within which judicial power is exercised. supplement the said rules with the advice and concurrence of the Supreme Court"
In Manila Railroad Co. v. Attorney-General,193 the Court elucidated that "[t]he power and (b) in turn, Commissioner Aquino agreed to withdraw his proposal to add "the
or authority of the court over the subject matter existed and was fixed before phrase with the concurrence of the National Assembly." The changes were
procedure in a given cause began. Procedure does not alter or change that approved, thereby leading to the present lack of textual reference to any
power or authority; it simply directs the manner in which it shall be fully form of Congressional participation in Section 5 (5), Article VIII, supra. The
and justly exercised. To be sure, in certain cases, if that power is not exercised prevailing consideration was that "both bodies, the Supreme Court and the
in conformity with the provisions of the procedural law, purely, the court attempting Legislature, have their inherent powers."201
to exercise it loses the power to exercise it legally. This does not mean that it loses
jurisdiction of the subject matter."194 Thus, as it now stands, Congress has no authority to repeal, alter, or supplement
rules concerning pleading, practice, and procedure. As pronounced in Echegaray:
While the power to define, prescribe, and apportion the jurisdiction of the various
courts is, by constitutional design, vested unto Congress, the power to The rule making power of this Court was expanded. This Court for the first time was
promulgate rules concerning the protection and enforcement of given the power to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts belongs constitutional rights. The Court was also r granted for the first time the power to
exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution disapprove rules of procedure of special courts and quasi-judicial bodies. But most
reads: importantly, the 1987 Constitution took away the power of Congress to
repeal, alter, or supplement rules concerning pleading, practice and
Section 5. The Supreme Court shall have the following powers: procedure. In fine, the power to promulgate rules of pleading, practice and
procedure is no longer shared by this Court with Congress, more so with
xxxx the Executive.202 (Emphasis and underscoring supplied)

(5) Promulgate rules concerning the protection and enforcement of Under its rule-making authority, the Court has periodically passed various rules of
constitutional rights, pleading, practice, and procedure in all courts, the procedure, among others, the current 1997 Rules of Civil Procedure. Identifying
admission to the practice of law, the Integrated Bar, and legal assistance to the the appropriate procedural remedies needed for the reasonable exercise of
underprivileged. Such rules shall provide a simplified and inexpensive procedure for every court's judicial power, the provisional remedies of temporary
the speedy disposition of cases, shall be uniform for all courts of the same grade, restraining orders and writs of preliminary injunction were thus provided.
and shall not diminish, increase, or modify substantive rights. Rules of procedure of
special courts and quasi-judicial bodies shall remain effective unless disapproved by A temporary restraining order and a writ of preliminary injunction both constitute
the Supreme Court. (Emphases and underscoring supplied) temporary measures availed of during the pendency of the action. They are, by
nature, ancillary because they are mere incidents in and are dependent upon the
In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution result of the main action. It is well-settled that the sole objectof a temporary
of its rule-making authority, which, under the 1935196 and 1973 restraining order or a writ of preliminary injunction, whether prohibitory or
Constitutions,197 had been priorly subjected to a power-sharing scheme with mandatory, is to preserve the status quo203 until the merits of the case can be
Congress.198 As it now stands, the 1987 Constitution textually altered the old heard. They are usually granted when it is made to appear that there is a
provisions by deleting the concurrent power of Congress to amend the substantial controversy between the parties and one of them is committing an act
rules, thus solidifying in one body the Court's rule-making powers, in line or threatening the immediate commission of an act that will cause irreparable injury
with the Framers' vision of institutionalizing a "[s]tronger and more independent or destroy the status quo of the controversy before a full hearing can be had on the
judiciary."199 merits of the case. In other words, they are preservative remedies for the
protection of substantive rights or interests, and, hence, not a cause of action in
The records of the deliberations of the Constitutional Commission would itself, but merely adjunct to a main suit.204 In a sense, they are regulatory
show200 that the Framers debated on whether or not the Court's rule-making powers processes meant to prevent a case from being mooted by the interim acts of the
should be shared with Congress. There was an initial suggestion to insert the parties.
sentence "The National Assembly may repeal, alter, or supplement the said rules
with the advice and concurrence of the Supreme Court", right after the phrase Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional
13
remedies of a TRO and a WPI. A preliminary injunction is defined under Section from a general grant of jurisdiction, in addition to those expressly conferred on
1,205 Rule 58, while Section 3206 of the same Rule enumerates the grounds for its them. These inherent powers are such powers as are necessary for the
issuance. Meanwhile, under Section 5207 thereof, a TRO may be issued as a ordinary and efficient exercise of jurisdiction; or are essential to the
precursor to the issuance of a writ of preliminary injunction under certain procedural existence, dignity and functions of the courts, as well as to the due
parameters. administration of justice; or are directly appropriate, convenient and
suitable to the execution of their granted powers; and include the power to
The power of a court to issue these provisional injunctive reliefs coincides with maintain the court's jurisdiction and render it effective in behalf of the
its inherent power to issue all auxiliary writs, processes, and other means litigants.214 (Emphases and underscoring supplied)
necessary to carry its acquired jurisdiction into effect under Section 6, Rule
135 of the Rules of Court which reads: Broadly speaking, the inherent powers of the courts resonates the long-entrenched
constitutional principle, articulated way back in the 1936 case of Angara, that
Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is "where a general power is conferred or duty enjoined, every particular power
conferred on a court or judicial officer, all auxiliary writs, f processes and other necessary for the exercise of the one or the performance of the other is also
means necessary to carry it into effect may be employed by such court or officer; conferred."215
and if the procedure to be followed in the exercise of such jurisdiction is not
specifically pointed out by law208 or by these rules, any suitable process or mode of In the United States, the "inherent powers doctrine refers to the principle, by
proceeding may be adopted which appears comfortable to the spirit of the said law which the courts deal with diverse matters over which they are thought to have
or rules.ChanRoblesVirtualawlibrary intrinsic authority like procedural [rule-making] and general judicial housekeeping.
To justify the invocation or exercise of inherent powers, a court must show that the
In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory powers are reasonably necessary to achieve the specific purpose for which
power or jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in the exercise is sought. Inherent powers enable the judiciary to accomplish
aid of its appellate jurisdiction"210 over "decisions, orders or resolutions of the RTCs its constitutionally mandated functions."216
in local tax cases originally decided or resolved by them in the exercise of their
original or appellate jurisdiction,"211 the Court ruled that said power "should coexist In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a
with, and be a complement to, its appellate jurisdiction to review, by appeal, the statute which prohibited courts from enjoining the enforcement of a revocation
final orders and decisions of the RTC, in order to have complete supervision over order of an alcohol beverage license pending appeal,218 the Supreme Court of
the acts of the latter:"212 Kentucky held:

A grant of appellate jurisdiction implies that there is included in it the power [T]he Court is x x x vested with certain "inherent" powers to do that which is
necessary to exercise it effectively, to make all orders that ; will preserve reasonably necessary for the administration of justice within the scope of
the subject of the action, and to give effect to the final determination of the their jurisdiction. x x x [W]e said while considering the rule making power and the
appeal. It carries with it the power to protect that jurisdiction and to make the judicial power to be one and the same that ". . . the grant of judicial power [rule
decisions of the court thereunder effective. The court, in aid of its appellate making power] to the courts by the constitution carries with it, as a
jurisdiction, has authority to control all auxiliary and incidental matters necessary to necessary incident, the right to make that power effective in the
the efficient and proper exercise of that jurisdiction. For this purpose, it may, when administration of justice." (Emphases supplied)
necessary, prohibit or restrain the performance of any act which might interfere
with the proper exercise of its rightful jurisdiction in cases pending before Significantly, Smothers characterized a court's issuance of provisional injunctive
it.213 (Emphasis supplied) relief as an exercise of the court's inherent power, and to this end, stated that any
attempt on the part of Congress to interfere with the same was constitutionally
In this light, the Court expounded on the inherent powers of a court endowed with impermissible:
subject matter jurisdiction:
It is a result of this foregoing line of thinking that we now adopt the language
[A] court which is endowed with a particular jurisdiction should have powers which framework of 28 Am.Jur.2d, Injunctions, Section 15, and once and for all make
are necessary to enable it to act effectively within such jurisdiction. These should clear that a court, once having obtained jurisdiction of a cause of action, has, as an
be regarded as powers which are inherent in its jurisdiction and the court incidental to its constitutional grant of power, inherent power to do all things
must possess them in order to enforce its rules of practice and to suppress reasonably necessary to the administration of justice in the case before it. In the
any abuses of its process and to t defeat any attempted thwarting of such exercise of this power, a court, when necessary in order to protect or
process. preserve the subject matter of the litigation, to protect its jurisdiction and
to make its judgment effective, may grant or issue a temporary injunction
x x x x cralawlawlibrary in aid of or ancillary to the principal action.

Indeed, courts possess certain inherent powers which may be said to be implied The control over this inherent judicial power, in this particular instance the
injunction, is exclusively within the constitutional realm of the courts. As
14
such, it is not within the purview of the legislature to grant or deny the effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
power nor is it within the purview of the legislature to shape or fashion nonetheless, ruled that the prerogative to amend, repeal or even establish
circumstances under which this inherently judicial power may be or may new rules of procedure225 solely belongs to the Court, to the exclusion of
not be granted or denied. the legislative and executive branches of government. On this score, the
Court described its authority to promulgate rules on pleading, practice, and
This Court has historically recognized constitutional limitations upon the power of procedure as exclusive and "[o]ne of the safeguards of [its] institutional
the legislature to interfere with or to inhibit the performance of constitutionally independence."226
granted and inherently provided judicial functions, x x x
That Congress has been vested with the authority to define, prescribe, and
xxxx apportion the jurisdiction of the various courts under Section 2, Article
VIII supra, as well as to create statutory courts under Section 1, Article VIII supra,
We reiterate our previously adopted language, ". . . a court, once having obtained does not result in an abnegation of the Court's own power to promulgate rules of
jurisdiction of a cause of action, has, as incidental to its general jurisdiction, pleading, practice, and procedure under Section 5 (5), Article VIII supra. Albeit
inherent power to do all things reasonably necessary f to the administration of operatively interrelated, these powers are nonetheless institutionally separate and
justice in the case before it. . ." This includes the inherent power to issue distinct, each to be preserved under its own sphere of authority. When Congress
injunctions. (Emphases supplied) creates a court and delimits its jurisdiction, the procedure for which its
jurisdiction is exercised is fixed by the Court through the rules it
Smothers also pointed out that the legislature's authority to provide a right to promulgates. The first paragraph of Section 14, RA 6770 is not a jurisdiction-
appeal in the statute does not necessarily mean that it could control the appellate vesting provision, as the Ombudsman misconceives,227 because it does not define,
judicial proceeding: prescribe, and apportion the subject matter jurisdiction of courts to act
on certiorari cases; the certiorari jurisdiction of courts, particularly the CA, stands
However, the fact that the legislature statutorily provided for this appeal does not under the relevant sections of BP 129 which were not shown to have been repealed.
give it the right to encroach upon the constitutionally granted powers of the Instead, through this provision, Congress interfered with a provisional remedy
judiciary. Once the administrative action has ended and the right to appeal that was created by this Court under its duly promulgated rules of
arises the legislature is void of any right to control a subsequent appellate procedure, which utility is both integral and inherent to every court's
judicial proceeding. The judicial rules have come into play and have exercise of judicial power. Without the Court's consent to the proscription,
preempted the field.219 (Emphasis supplied) as may be manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor, there thus,
With these considerations in mind, the Court rules that when Congress passed the stands to be a violation of the separation of powers principle.
first paragraph of Section 14, RA 6770 and, in so doing, took away from the courts
their power to issue a TRO and/or WPI to enjoin an investigation conducted by the In addition, it should be pointed out that the breach of Congress in prohibiting
Ombudsman, it encroached upon this Court's constitutional rule-making authority. provisional injunctions, such as in the first paragraph of Section 14, RA 6770, does
Clearly, these issuances, which are, by nature, provisional reliefs and auxiliary writs not only undermine the constitutional allocation of powers; it also practically
created under the provisions of the Rules of Court, are matters of dilutes a court's ability to carry out its functions. This is so since a
procedure which belong exclusively within the province of this Court. Rule 58 of particular case can easily be mooted by supervening events if no
the Rules of Court did not create, define, and regulate a right but merely prescribed provisional injunctive relief is extended while the court is hearing the
the means of implementing an existing right220 since it only provided for temporary same. Accordingly, the court's acquired jurisdiction, through which it exercises its
reliefs to preserve the applicant's right in esse which is threatened to be violated judicial power, is rendered nugatory. Indeed, the force of judicial power, especially
during the course of a pending litigation. In the case of Fabian,211 it was stated that: under the present Constitution, cannot be enervated due to a court's inability to
regulate what occurs during a proceeding's course. As earlier intimated, when
jurisdiction over the subject matter is accorded by law and has been acquired by a
If the rule takes away a vested right, it is not procedural. If the rule creates a right
court, its exercise thereof should be undipped. To give true meaning to the judicial
such as the right to appeal, it may be classified as a substantive matter; but if it
power contemplated by the Framers of our Constitution, the Court's duly
operates as a means of implementing an existing right then the rule deals merely
promulgated rules of procedure should therefore remain unabridged, this, even by
with procedure.ChanRoblesVirtualawlibrary
statute. Truth be told, the policy against provisional injunctive writs in whatever
variant should only subsist under rules of procedure duly promulgated by the Court
Notably, there have been similar attempts on the part of Congress, in the exercise
given its sole prerogative over the same.
of its legislative power, to amend the Rules of Court, as in the cases of: (a) In Re:
Exemption of The National Power Corporation from Payment of Filing/ Docket
The following exchange between Associate Justice Marvic Mario Victor F. Leonen
Fees;222 (b) Re: Petition for Recognition of the Exemption of the Government
(Justice Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor
Service Insurance System (GSIS) from Payment of Legal Fees;223 and (c) Baguio
General Hilbay) mirrors the foregoing observations:
Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-
Cortes224 While these cases involved legislative enactments exempting government
owned and controlled corporations and cooperatives from paying filing fees, thus,
15
JUSTICE LEONEN: JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court? A TRO and a writ of preliminary injunction, would it be a separate case or is it part
of litigation in an ordinary case?
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor. ACTING SOLICITOR GENERAL HILBAY:
It is an ancillary remedy, Your Honor.
JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be JUSTICE LEONEN:
mistaken under the rubric of what is called provisional remedies, our resident expert In fact, it originated as an equitable remedy, is that not correct?
because Justice Peralta is not here so Justice Bersamin for a while. So provisional
remedy you have injunction, x x x. ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
xxxx
JUSTICE LEONEN:
JUSTICE LEONEN: In order to preserve the power of a court so that at the end of litigation, it
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of will not be rendered moot and academic, is that not correct?
the Constitution, if you have a copy of the Constitution, can you please read that
provision? Section 5, Article VIII the Judiciary subparagraph 5, would you kindly ACTING SOLICITOR GENERAL HILBAY:
read that provision? Correct, Your Honor.

ACTING SOLICTOR GENERAL HILBAY. JUSTICE LEONEN:

"Promulgate rules concerning the protection and enforcement of constitutional In that view, isn't Section 14, first paragraph, unconstitutional?
rights, pleading, practice and procedure in all courts..."
ACTING SOLICITOR GENERAL HILBAY:
JUSTICE LEONEN: No, Your Honor.
Okay, we can stop with that, promulgate rules concerning pleading, practice and
procedure in all courts. This is the power, the competence, the jurisdiction of what xxxx
constitutional organ?
JUSTICE LEONEN.
ACTING SOLICITOR GENERAL HILBAY: Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?
The Supreme Court, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
JUSTICE LEONEN: Your Honor, Congress cannot impair the power of the Court to create remedies, x x
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've x.
already been discussed with you by my other colleagues, is that not correct?
JUSTICE LEONEN.
ACTING SOLICITOR GENERAL HILBAY: What about bill [of] particulars, can Congress say, no Court shall have the power to
Correct, Your Honor. issue the supplemental pleading called the bill of t particular [s]? It cannot, because
that's part of procedure...
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that ACTING SOLICITOR GENERAL HILBAY:
not correct? That is true.

ACTING SOLICITOR GENERAL HILBAY: JUSTICE LEONEN

Correct, Your Honor. ...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

JUSTICE LEONEN: ACTING SOLICITOR GENERAL HILBAY:

On the other hand, the power to promulgate rules is with the Court, is that not Correct.
correct?
JUSTICE LEONEN:
ACTING SOLICITOR GENERAL HILBAY: So what's different with the writ of injunction?
Correct, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
16
Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a IV.
court that was created by Congress. In the absence of jurisdiction... (interrupted)
The foregoing notwithstanding, the issue of whether or not the CA gravely abused
JUSTICE LEONEN: its jurisdiction in issuing the TRO and WPI in CA-G.R. SP No. 139453 against the
No, writ of injunction does not attach to a court. In other words, when they create a preventive suspension order is a persisting objection to the validity of said
special agrarian court it has all procedures with it but it does not attach particularly injunctive writs. For its proper analysis, the Court first provides the context of the
to that particular court, is that not correct? assailed injunctive writs.

ACTING SOLICTOR GENERAL HILBAY: A. Subject matter of the CA's iniunctive writs is the preventive suspension
When Congress, Your Honor, creates a special court... order.

JUSTICE LEONEN: By nature, a preventive suspension order is not a penalty but only a
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It preventive measure. In Quimbo v. Acting Ombudsman Gervacio,231 the Court
was a Rule. A rule of procedure and the Rules of Court, is that not correct? explained the distinction, stating that its purpose is to prevent the official to be
suspended from using his position and the powers and prerogatives of his
ACTING SOLICITOR GENERAL HILBAY: office to influence potential witnesses or tamper with records which may
Yes, Your Honor. be vital in the prosecution of the case against him:

JUSTICE LEONEN: Jurisprudential law establishes a clear-cut distinction between suspension as

And a TRO and a writ of preliminary injunction does not exist unless it is [an] preventive measure and suspension as penalty. The distinction, by considering the
ancillary to a particular injunction in a court, is that not correct? purpose aspect of the suspensions, is readily cognizable as they have different ends
sought to be achieved.
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor. Preventive suspension is merely a preventive measure, a preliminary step
in an administrative investigation. The purpose of the suspension order is
xxxx228 (Emphasis supplied) to prevent the accused from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with
In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that records which may be vital in the prosecution of the case against him. If
"[i]t is through the Constitution that the fundamental powers of government are after such investigation, the charge is established and the person investigated is
established, limited and defined, and by which these powers are distributed among found guilty of acts warranting his suspension or removal, then he is suspended,
the several departments. The Constitution is the basic and paramount law to which removed or dismissed. This is the penalty.
all other laws must conform and to which all persons, including the highest officials
of the land, must defer." It would then follow that laws that do not conform to the That preventive suspension is not a penalty is in fact explicitly provided by Section
Constitution shall be stricken down for being unconstitutional.230 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative
Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws.
However, despite the ostensible breach of the separation of powers principle, the Section. 24. Preventive suspension is not a punishment or penalty for misconduct in
Court is not oblivious to the policy considerations behind the first paragraph of office but is considered to be a preventive measure. (Emphasis
Section 14, RA 6770, as well as other statutory provisions of similar import. Thus, supplied)ChanRoblesVirtualawlibrary
pending deliberation on whether or not to adopt the same, the Court, under its sole Not being a penalty, the period within which one is under preventive suspension is
prerogative and authority over all matters of procedure, deems it proper to declare not considered part of the actual penalty of suspension. So Section 25 of the same
as ineffective the prohibition against courts other than the Supreme Court from Rule XIV provides:chanRoblesvirtualLawlibrary
issuing provisional injunctive writs to enjoin investigations conducted by the Office Section 25. The period within which a public officer or employee charged is placed
of the Ombudsman, until it is adopted as part of the rules of procedure through an under preventive suspension shall not be considered part of the actual penalty
administrative circular duly issued therefor. of suspension imposed upon the employee found guilty.232(Emphases
supplied)ChanRoblesVirtualawlibrary
Hence, with Congress interfering with matters of procedure (through passing the
first paragraph of Section 14, RA 6770) without the Court's consent thereto, it The requisites for issuing a preventive suspension order are explicitly stated in
remains that the CA had the authority to issue the questioned injunctive writs Section 24, RA 6770:
enjoining the implementation of the preventive suspension order against Binay, Jr.
At the risk of belaboring the point, these issuances were merely ancillary to the
Section 24. Preventive Suspension. - The Ombudsman or his Deputy may
exercise of the CA's certiorari jurisdiction conferred to it under Section 9 (1),
preventively suspend any officer or employee under his authority pending an
Chapter I of BP 129, as amended, and which it had already acquired over the main
investigation, if in his judgment the evidence of guilt is strong, and (a) the
CA-G.R. SP No. 139453 case.
charge against such officer or employee involves dishonesty, oppression or
17
grave misconduct or neglect in the performance of duty; (b) the charges alleged payments on July 3, 4, and 24, 2013,239 corresponding to the services of
would warrant removal from the service; or (c) the respondent's continued Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable therefor
stay in office may prejudice the case filed against him. based on the cases of Salalima v. Guingona, Jr.,240 and Mayor Garcia v.
Mojica,241 wherein the condonation dobtrine was applied by the Court although the
The preventive suspension shall continue until the case is terminated by the Office payments were made after the official's election, reasoning that the payments were
of the Ombudsman but not more than six (6) months, without pay, except when the merely effected pursuant to contracts executed before said re-election.242
delay in the disposition of the case by the Office of the Ombudsman is due to the
fault, negligence or petition of the respondent, in which case the period of such The Ombudsman contends that it was inappropriate for the CA to have considered
delay shall not be counted in computing the period of suspension herein provided. the condonation doctrine since it was a matter of defense which should have been
(Emphasis and underscoring supplied) raised and passed upon by her office during the administrative disciplinary
proceedings.243 However, the Court agrees with the CA that it was not precluded
In other words, the law sets forth two (2) conditions that must be satisfied to justify from considering the same given that it was material to the propriety of according
the issuance of an order of preventive suspension pending an investigation, namely: provisional injunctive relief in conformity with the ruling in Governor Garcia, Jr.,
which was the subsisting jurisprudence at that time. Thus, since condonation was
(1) The evidence of guilt is strong; and duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,244 the CA did not
err in passing upon the same. Note that although Binay, Jr. secondarily argued that
(2) Either of the following circumstances co-exist with the first the evidence of guilt against him was not strong in his petition in CA-G.R. SP No.
requirement:chanRoblesvirtualLawlibrary 139453,245it appears that the CA found that the application of the condonation
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in doctrine was already sufficient to enjoin the implementation of the preventive
the performance of duty;cralawlawlibrary suspension order. Again, there is nothing aberrant with this since, as remarked in
the same case of Governor Garcia, Jr., if it was established that the acts subject of
(b) The charge would warrant removal from the service; or the administrative complaint were indeed committed during Binay, Jr.'s prior term,
then, following the condonation doctrine, he can no longer be administratively
(c) The respondent's continued stay in office may prejudice the case filed against charged. In other words, with condonation having been invoked by Binay, Jr. as an
him.233ChanRoblesVirtualawlibrary exculpatory affirmative defense at the onset, the CA deemed it unnecessary to
determine if the evidence of guilt against him was strong, at least for the purpose of
B. The basis of the CA's injunctive writs is the condonation doctrine. issuing the subject injunctive writs.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show With the preliminary objection resolved and the basis of the assailed writs herein
that the Ombudsman's non-compliance with the requisites provided in Section 24, laid down, the Court now proceeds to determine if the CA gravely abused its
RA 6770 was not the basis for the issuance of the assailed injunctive writs. discretion in applying the condonation doctrine.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO C. The origin of the condonation doctrine.
was based on the case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.),
wherein the Court emphasized that "if it were established in the CA that the acts Generally speaking, condonation has been defined as "[a] victim's express or
subject of the administrative complaint were indeed committed during petitioner implied forgiveness of an offense, [especially] by treating the offender as if
[Garcia's] prior term, then, following settled jurisprudence, he can no longer be there had been no offense."246
administratively charged."235 Thus, the Court, contemplating the application of the
condonation doctrine, among others, cautioned, in the said case, that "it would have The condonation doctrine - which connotes this same sense of complete
been more prudent for [the appellate court] to have, at the very least, on account extinguishment of liability as will be herein elaborated upon - is not based on
of the extreme urgency of the matter and the seriousness of the issues raised in statutory law. It is a jurisprudential creation that originated from the 1959
the certiorari petition, issued a TRO x x x"236 during the pendency of the case of Pascual v. Hon. Provincial Board ofNueva Ecija,247 (Pascual), which
proceedings. was therefore decided under the 1935 Constitution.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva
assailed WPI was based on the condonation doctrine, citing the case of Aguinaldo Ecija, sometime in November 1951, and was later re-elected to the same position in
v. Santos237 The CA held that Binay, Jr. has an ostensible right to the final relief 1955. During his second term, or on October 6, 1956, the Acting Provincial
prayed for, i.e., the nullification of the preventive suspension order, finding that the Governor filed administrative charges before the Provincial Board of Nueva Ecija
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that against him for grave abuse of authority and usurpation of judicial functions for
his re-election in 2013 as City Mayor of Makati condoned any administrative liability acting on a criminal complaint in Criminal Case No. 3556 on December 18 and 20,
arising from anomalous activities relative to the Makati Parking Building project 1954. In defense, Arturo Pascual argued that he cannot be made liable for the acts
from 2007 to 2013.238 Moreover, the CA observed that although there were acts charged against him since they were committed during his previous term of office,
which were apparently committed by Binay, Jr. beyond his first term , i.e., the and therefore, invalid grounds for disciplining him during his second term. The
18
Provincial Board, as well as the Court of First Instance of Nueva Ecija, later decided not condone or purge the offense (see State ex rel. Billon v. Bourgeois).256 Also, in
against Arturo Pascual, and when the case reached this Court on appeal, it the Supreme Court of New York, Apellate Division, Fourth Department, the court
recognized that the controversy posed a novel issue - that is, whether or not an construed the words "in office" to refer not to a particular term of office but to an
elective official may be disciplined for a wrongful act committed by him during his entire tenure; it stated that the whole purpose of the legislature in enacting the
immediately preceding term of office. statute in question could easily be lost sight of, and the intent of the law-making
body be thwarted, if an unworthy official could not be removed during one term for
As there was no legal precedent on the issue at that time, the Court, misconduct for a previous one (Newman v. Strobel).257
in Pascual, resorted to American authorities and "found that cases on the matter
are conflicting due in part, probably, to differences in statutes and constitutional (2) For another, condonation depended on whether or not the public officer was a
provisions, and also, in part, to a divergence of views with respect to the question successor in the same office for which he has been administratively charged. The
of whether the subsequent election or appointment condones the prior "own-successor theory," which is recognized in numerous States as an exception to
misconduct."248Without going into the variables of these conflicting views condonation doctrine, is premised on the idea that each term of a re-elected
and cases, it proceeded to state that: incumbent is not taken as separate and distinct, but rather, regarded as one
continuous term of office. Thus, infractions committed in a previous term are
The weight of authorities x x x seems to incline toward the rule denying the grounds for removal because a re-elected incumbent has no prior term to speak
right to remove one from office because of misconduct during a prior term, of258 (see Attorney-General v. Tufts;259State v. Welsh;260Hawkins v. Common
to which we fully subscribe.249 (Emphasis and underscoring supplied) Council of Grand Rapids;261Territory v. Sanches;262 and Tibbs v. City of Atlanta).263

The conclusion is at once problematic since this Court has now uncovered that there (3) Furthermore, some State courts took into consideration the continuing nature of
is really no established weight of authority in the United States (US) favoring the an offense in cases where the condonation doctrine was invoked. In State ex rel.
doctrine of condonation, which, in the words of Pascual, theorizes that an official's Douglas v. Megaarden,264 the public officer charged with malversation of public
re-election denies the right to remove him from office due to a misconduct during a funds was denied the defense of condonation by the Supreme Court of Minnesota,
prior term. In fact, as pointed out during the oral arguments of this case, at least observing that "the large sums of money illegally collected during the previous
seventeen (17) states in the US have abandoned the condonation doctrine.250 The years are still retained by him." In State ex rel. Beck v. Harvey265 the Supreme
Ombudsman aptly cites several rulings of various US State courts, as well as Court of Kansas ruled that "there is no necessity" of applying the condonation
literature published on the matter, to demonstrate the fact that the doctrine is not doctrine since "the misconduct continued in the present term of office[;] [thus]
uniformly applied across all state jurisdictions. Indeed, the treatment is nuanced: there was a duty upon defendant to restore this money on demand of the county
commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the
(1) For one, it has been widely recognized that the propriety of removing a public Supreme Court of Kansas held that "insofar as nondelivery and excessive prices are
officer from his current term or office for misconduct which he allegedly committed concerned, x x x there remains a continuing duty on the part of the defendant to
in a prior term of office is governed by the language of the statute or constitutional make restitution to the country x x x, this duty extends into the present term, and
provision applicable to the facts of a particular case (see In Re Removal of Member neglect to discharge it constitutes misconduct."
of Council Coppola).251 As an example, a Texas statute, on the one hand, expressly
allows removal only for an act committed during a present term: "no officer shall be Overall, the foregoing data clearly contravenes the preliminary conclusion
prosecuted or removed from office for any act he may have committed prior to his in Pascual that there is a "weight of authority" in the US on the condonation
election to office" (see State ex rel. Rowlings v. Loomis).252 On the other hand, the doctrine. In fact, without any cogent exegesis to show that Pascual had accounted
Supreme Court of Oklahoma allows removal from office for "acts of commission, for the numerous factors relevant to the debate on condonation, an outright
omission, or neglect committed, done or omitted during a previous or preceding adoption of the doctrine in this jurisdiction would not have been proper.
term of office" (see State v. Bailey)253 Meanwhile, in some states where the removal
statute is silent or unclear, the case's resolution was contingent upon the At any rate, these US cases are only of persuasive value in the process of this
interpretation of the phrase "in office." On one end, the Supreme Court of Ohio Court's decision-making. "[They] are not relied upon as precedents, but as guides of
strictly construed a removal statute containing the phrase "misfeasance of interpretation."267 Therefore, the ultimate analysis is on whether or not the
malfeasance in office" and thereby declared that, in the absence of clear legislative condonation doctrine, as espoused in Pascual, and carried over in numerous cases
language making, the word "office" must be limited to the single term during which after, can be held up against prevailing legal norms. Note that the doctrine of stare
the offense charged against the public officer occurred (see State ex rel. Stokes v. decisis does not preclude this Court from revisiting existing doctrine. As adjudged in
Probate Court of Cuyahoga County)254 Similarly, the Common Pleas Court of the case of Belgica, the stare decisis rule should not operate when there are
Allegheny County, Pennsylvania decided that the phrase "in office" in its state powerful countervailing considerations against its application.268 In other words,
constitution was a time limitation with regard to the grounds of removal, so that an stare decisis becomes an intractable rule only when circumstances exist to preclude
officer could not be removed for misbehaviour which occurred; prior to the taking of reversal of standing precedent.269 As the Ombudsman correctly points out,
the office (see Commonwealth v. Rudman)255 The opposite was construed in the jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic
Supreme Court of Louisiana which took the view that an officer's inability to hold an creature that develops and devolves along with the society within which it
office resulted from the commission of certain offenses, and at once rendered him thrives.270 In the words of a recent US Supreme Court Decision, "[w]hat we can
unfit to continue in office, adding the fact that the officer had been re-elected did decide, we can undecide."271
19
 verbatim.
In this case, the Court agrees with the Ombudsman that since the time Pascual was
decided, the legal landscape has radically shifted. Again, Pascual was a 1959 case (2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified
decided under the 1935 Constitution, which dated provisions do not reflect the that the condonation doctrine does not apply to a criminal case. It was explained
experience of the Filipino People under the 1973 and 1987 Constitutions. Therefore, that a criminal case is different from an administrative case in that the former
the plain difference in setting, including, of course, the sheer impact of the involves the People of the Philippines as a community, and is a public wrong to the
condonation doctrine on public accountability, calls for Pascual's judicious re- State at large; whereas, in the latter, only the populace of the constituency he
examination. serves is affected. In addition, the Court noted that it is only the President who may
pardon a criminal offense.
D. Testing the Condonation Doctrine.
(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under
Pascual's ratio decidendi may be dissected into three (3) parts: the 1987 Constitution wherein the condonation doctrine was applied in favor of
then Cagayan Governor Rodolfo E. Aguinaldo although his re-election merely
First, the penalty of removal may not be extended beyond the term in which the supervened the pendency of, the proceedings.
public officer was elected for each term is separate and distinct:
(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the
Offenses committed, or acts done, during previous term are generally held Court reinforced the condonation doctrine by stating that the same is
not to furnish cause for removal and this is especially true where the justified by "sound public policy." According to the Court, condonation
constitution provides that the penalty in proceedings for removal shall not extend prevented the elective official from being "hounded" by administrative cases filed by
beyond the removal from office, and disqualification from holding office for his "political enemies" during a new term, for which he has to defend himself "to the
the term for which the officer was elected or appointed. (67 C.J.S. p. 248, detriment of public service." Also, the Court mentioned that the administrative
citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. liability condoned by re-election covered the execution of the contract and the
418; People ex rel.Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of incidents related therewith.279
Kingfisher County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re
Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217). (5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the
benefit of the doctrine was extended to then Cebu City Mayor Alvin B. Garcia who
The underlying theory is that each term is separate from other terms x x x.272 was administratively charged for his involvement in an anomalous contract for the
supply of asphalt for Cebu City, executed only four (4) days before the upcoming
Second, an elective official's re-election serves as a condonation of previous elections. The Court ruled that notwithstanding the timing of the contract's
misconduct, thereby cutting the right to remove him therefor; and execution, the electorate is presumed to have known the petitioner's background
and character, including his past misconduct; hence, his subsequent re-election was
[T]hat the reelection to office operates as a condonation of the officer's previous deemed a condonation of his prior transgressions. More importantly, the Court held
misconduct to the extent of cutting off the right to remove him therefor. (43 Am. that the determinative time element in applying the condonation doctrine should be
Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) the time when the contract was perfected; this meant that as long as the
553.273(emphasis supplied) contract was entered into during a prior term, acts which were done to
implement the same, even if done during a succeeding term, do not negate
Third, courts may not deprive the electorate, who are assumed to have known the the application of the condonation doctrine in favor of the elective official.
life and character of candidates, of their right to elect officers:
(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23,
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 2010) - wherein the Court explained the doctrinal innovations in
559, 50 LRA (NS) 553 — the Salalima and Mayor Garcia rulings, to wit:
The Court should never remove a public officer for acts done prior to his present
term of office. To do otherwise would be to deprive the people of their right to elect Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the
their officers. When the people have elected a man to office, it must be doctrine. The condonation rule was applied even if the administrative
assumed that they did this with knowledge of his life and character, and complaint was not filed before the reelection of the public official, and even
that they disregarded or forgave his faults or misconduct, if he had been if the alleged misconduct occurred four days before the elections,
guilty of any. It is not for the court, by reason of such faults or misconduct to respectively. Salalima did not distinguish as to the date of filing of the
practically overrule the will of the people.274 (Emphases supplied) administrative complaint, as long as the alleged misconduct was committed during
the prior term, the precise timing or period of which Garcia did not further
The notable cases on condonation following Pascual are as follows: distinguish, as long as the wrongdoing that gave rise to the public official's
culpability was committed prior to the date of reelection.282 (Emphasis
(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the supplied)ChanRoblesVirtualawlibrary
condonation doctrine, thereby quoting the above-stated passages from Pascual in
20
 degree of responsibility, integrity, loyalty and efficiency, and shall remain
The Court, citing Civil Service Commission v. Sojor,283 also clarified that the accountable to the people."
condonation doctrine would not apply to appointive officials since, as to
them, there is no sovereign will to disenfranchise. After the turbulent decades of Martial Law rule, the Filipino People have framed and
adopted the 1987 Constitution, which sets forth in the Declaration of Principles and
(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the State Policies in Article II that "[t]he State shall maintain honesty and
Court remarked that it would have been prudent for the appellate court therein to integrity in the public service and take positive and effective measures
have issued a temporary restraining order against the implementation of a against graft and corruption."288 Learning how unbridled power could corrupt
preventive suspension order issued by the Ombudsman in view of the condonation public servants under the regime of a dictator, the Framers put primacy on the
doctrine. integrity of the public service by declaring it as a constitutional principle and a State
policy. More significantly, the 1987 Constitution strengthened and solidified what
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, has been first proclaimed in the 1973 Constitution by commanding public officers to
Mayor Garcia, and Governor Garcia, Jr. - all cited by the CA to justify its March 16, be accountable to the people at all times:
2015 and April 6, 2015 Resolutions directing the issuance of the assailed injunctive
writs - would show that the basis for condonation under the prevailing constitutional Section 1. Public office is a public trust. Public officers and employees must at all
and statutory framework was never accounted for. What remains apparent from the timesbe accountable to the people, serve them with utmost responsibility,
text of these cases is that the basis for condonation, as jurisprudential doctrine, was integrity, loyalty, and efficiency and act with patriotism and justice, and
- and still remains - the above-cited postulates of Pascual, which was lifted from lead modest lives.ChanRoblesVirtualawlibrary
rulings of US courts where condonation was amply supported by their own state
laws. With respect to its applicability to administrative cases, the core premise of In Belgica, it was explained that:
condonation - that is, an elective official's re-election cuts qff the right to remove
him for an administrative offense committed during a prior term - was adopted
[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which
hook, line, and sinker in our jurisprudence largely because the legality of that
states that "public office is a public trust," is an overarching reminder that every
doctrine was never tested against existing legal norms. As in the US, the propriety
instrumentality of government should exercise their official functions only in
of condonation is - as it should be -dependent on the legal foundation of the
accordance with the principles of the Constitution which embodies the parameters of
adjudicating jurisdiction. Hence, the Court undertakes an examination of our current
the people's trust. The notion of a public trust connotes accountability x x
laws in order to determine if there is legal basis for the continued application of the
x.289 (Emphasis supplied)ChanRoblesVirtualawlibrary
doctrine of condonation.
The same mandate is found in the Revised Administrative Code under the section of
The foundation of our entire legal system is the Constitution. It is the supreme law
the Civil Service Commission,290 and also, in the Code of Conduct and Ethical
of the land;284 thus, the unbending rule is that every statute should be read in light
Standards for Public Officials and Employees.291
of the Constitution.285 Likewise, the Constitution is a framework of a workable
government; hence, its interpretation must take into account the complexities,
For local elective officials like Binay, Jr., the grounds to discipline, suspend or
realities, and politics attendant to the operation of the political branches of
remove an elective local official from office are stated in Section 60 of
government.286
Republic Act No. 7160,292 otherwise known as the "Local Government Code of
1991" (LGC), which was approved on October 10 1991, and took effect on January
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was
1, 1992:
decided within the context of the 1935 Constitution which was silent with respect to
public accountability, or of the nature of public office being a public trust. The
provision in the 1935 Constitution that comes closest in dealing with public office is Section 60. Grounds for Disciplinary Action. - An elective local official may be
Section 2, Article II which states that "[t]he defense of the State is a prime duty of disciplined, suspended, or removed from office on any of the r following
government, and in the fulfillment of this duty all citizens may be required by law to grounds:chanRoblesvirtualLawlibrary
render personal military or civil service."287 Perhaps owing to the 1935 Constitution's (a) Disloyalty to the Republic of the Philippines;cralawlawlibrary
silence on public accountability, and considering the dearth of jurisprudential rulings (b) Culpable violation of the Constitution;cralawlawlibrary
on the matter, as well as the variance in the policy considerations, there was no (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of
glaring objection confronting the Pascual Court in adopting the condonation doctrine duty;cralawlawlibrary
that originated from select US cases existing at that time. (d) Commission of any offense involving moral turpitude or an offense punishable
by at least prision mayor;cralawlawlibrary
With the advent of the 1973 Constitution, the approach in dealing with public (e) Abuse of authority;cralawlawlibrary
officers underwent a significant change. The new charter introduced an entire article (f) Unauthorized absence for fifteen (15) consecutive working days, except in the
on accountability of public officers, found in Article XIII. Section 1 thereof positively case of members of the sangguniang panlalawigan, sangguniang panlunsod,
recognized, acknowledged, and declared that "[p]ublic office is a public trust." sanggunian bayan, and sangguniang barangay;cralawlawlibrary
Accordingly, "[p]ublic officers and employees shall serve with the highest (g) Application for, or acquisition of, foreign citizenship or residence or the status of

21
an immigrant of another country; and the 1987 Constitution, is plainly inconsistent with the idea that an elective local
(h) Such other grounds as may be provided in this Code and other laws. official's administrative liability for a misconduct committed during a prior term can
An elective local official may be removed from office on the grounds enumerated be wiped off by the fact that he was elected to a second term of office, or even
above by order of the proper court. another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction
Related to this provision is Section 40 (b) of the LGC which states that those to support the notion that an official elected for a different term is fully absolved of
removed from office as a result of an administrative case shall any administrative liability arising from an offense done during a prior term. In this
be disqualified from running for any elective local position: jurisdiction, liability arising from administrative offenses may be condoned
bv the President in light of Section 19, Article VII of the 1987 Constitution which
Section 40. Disqualifications. - The following persons are disqualified from running was interpreted in Llamas v. Orbos293 to apply to administrative offenses:
for any elective local position:
The Constitution does not distinguish between which cases executive clemency may
xxxx be exercised by the President, with the sole exclusion of impeachment cases. By the
same token, if executive clemency may be exercised only in criminal cases, it would
(b) Those removed from office as a result of an administrative case; indeed be unnecessary to provide for the exclusion of impeachment cases from the
coverage of Article VII, Section 19 of the Constitution. Following petitioner's
x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary proposed interpretation, cases of impeachment are automatically excluded
inasmuch as the same do not necessarily involve criminal offenses.
In the same sense, Section 52 (a) of the RRACCS provides that the penalty of
dismissal from service carries the accessory penalty of perpetual In the same vein, We do not clearly see any valid and convincing , reason why the
disqualification from holding public office: President cannot grant executive clemency in administrative cases. It is Our
considered view that if the President can grant reprieves, commutations and
Section 52. - Administrative Disabilities Inherent in Certain Penalties. - pardons, and remit fines and forfeitures in criminal cases, with much more reason
can she grant executive clemency in administrative cases, which are clearly less
serious than criminal offenses.
a. The penalty of dismissal shall carry with it cancellation of eligibility,
forfeiture of retirement benefits, perpetual disqualification from holding Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
public office, and bar from taking the civil service examinations. enumerated therein cannot anymore be invoked against an elective local official to
hold him administratively liable once he is re-elected to office. In fact, Section 40
(b) of the LGC precludes condonation since in the first place, an elective local official
In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall who is meted with the penalty of removal could not be re-elected to an elective local
not exceed the unexpired term of the elective local official nor constitute a bar to his position due to a direct disqualification from running for such post. In similar regard,
candidacy for as long as he meets the qualifications required for the office. Note, Section 52 (a) of the RRACCS imposes a penalty of perpetual disqualification from
however, that the provision only pertains to the duration of the penalty and its holding public office as an accessory to the penalty of dismissal from service.
effect on the official's candidacy. Nothing therein states that the administrative
liability therefor is extinguished by the fact of re-election: To compare, some of the cases adopted in Pascual were decided by US State
jurisdictions wherein the doctrine of condonation of administrative liability was
Section 66. Form and Notice of Decision. - x x x. supported by either a constitutional or statutory provision stating, in effect, that an
officer cannot be removed by a misconduct committed during a previous
xxxx term,294 or that the disqualification to hold the office does not extend beyond
the term in which the official's delinquency occurred.295 In one case,296 the
(b) The penalty of suspension shall not exceed the unexpired term of the absence of a provision against the re-election of an officer removed - unlike Section
respondent or a period of six (6) months for every administrative offense, nor shall 40 (b) of the LGC-was the justification behind condonation. In another case,297 it
said penalty be a bar to the candidacy of the respondent so suspended as long as was deemed that condonation through re-election was a policy under their
he meets the qualifications required for the office. constitution - which adoption in this jurisdiction runs counter to our present
Constitution's requirements on public accountability. There was even one case
Reading the 1987 Constitution together with the above-cited legal provisions now where the doctrine of condonation was not adjudicated upon but only invoked by a
leads this Court to the conclusion that the doctrine of condonation is actually bereft party as a ground;298 while in another case, which was not reported in full in the
of legal bases. official series, the crux of the disposition was that the evidence of a prior irregularity
in no way pertained to the charge at issue and therefore, was deemed to be
To begin with, the concept of public office is a public trust and the corollary incompetent.299Hence, owing to either their variance or inapplicability, none of these
requirement of accountability to the people at all times, as mandated under cases can be used as basis for the continued adoption of the condonation doctrine
under our existing laws.
22
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of It should, however, be clarified that this Court's abandonment of the condonation
suspension beyond the unexpired portion of the elective local official's prior term, doctrine should be prospective in application for the reason that judicial decisions
and likewise allows said official to still run for re-election This treatment is similar applying or interpreting the laws or the Constitution, until reversed, shall form part
to People ex rel Bagshaw v. Thompson300 and Montgomery v. Novell301 both cited of the legal system of the Philippines.305 Unto this Court devolves the sole authority
in Pascual, wherein it was ruled that an officer cannot be suspended for a to interpret what the Constitution means, and all persons are bound to follow its
misconduct committed during a prior term. However, as previously stated, nothing interpretation. As explained in De Castro v. Judicial Bar Council.306
in Section 66 (b) states that the elective local official's administrative liability is
extinguished by the fact of re-election. Thus, at all events, no legal provision Judicial decisions assume the same authority as a statute itself and, until
actually supports the theory that the liability is condoned. authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those called
Relatedly it should be clarified that there is no truth in Pascual's postulation that the upon to abide by them, but also of those duty-bound to enforce obedience to
courts would be depriving the electorate of their right to elect their officers if them.307
condonation were not to be sanctioned. In political law, election pertains to the
process by which a particular constituency chooses an individual to hold a public Hence, while the future may ultimately uncover a doctrine's error, it should be, as a
office. In this jurisdiction, there is, again, no legal basis to conclude that election general rule, recognized as "good law" prior to its abandonment. Consequently,
automatically implies condonation. Neither is there any legal basis to say that every the people's reliance thereupon should be respected. The landmark case on this
democratic and republican state has an inherent regime of condonation. If matter is People v. Jabinal,308 wherein it was ruled:
condonation of an elective official's administrative liability would perhaps, be
allowed in this jurisdiction, then the same should have been provided by law under
[W]hen a doctrine of this Court is overruled and a different view is adopted, the new
our governing legal mechanisms. May it be at the time of Pascual or at present, by
doctrine should be applied prospectively, and should not apply to parties who had
no means has it been shown that such a law, whether in a constitutional or
relied on the old doctrine and acted on the faith thereof.
statutory provision, exists. Therefore, inferring from this manifest absence, it cannot
be said that the electorate's will has been abdicated.
Later, in Spouses Benzonan v. CA,309 it was further elaborated:
Equally infirm is Pascual's proposition that the electorate, when re-electing a local
official, are assumed to have done so with knowledge of his life and character, and [Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting
that they disregarded or forgave his faults or misconduct, if he had been guilty of the laws or the Constitution shall form a part of the legal system of the Philippines."
any. Suffice it to state that no such presumption exists in any statute or But while our decisions form part of the law of the land, they are also subject to
procedural rule.302 Besides, it is contrary to human experience that the electorate Article 4 of the Civil Code which provides that "laws shall have no retroactive effect
would have full knowledge of a public official's misdeeds. The Ombudsman correctly unless the contrary is provided." This is expressed in the familiar legal maxim lex
points out the reality that most corrupt acts by public officers are shrouded in prospicit, non respicit, the law looks forward not backward. The rationale against
secrecy, and concealed from the public. Misconduct committed by an elective retroactivity is easy to perceive. The retroactive application of a law usually divests
official is easily covered up, and is almost always unknown to the rights that have already become vested or impairs the obligations of contract and
electorate when they cast their votes.303 At a conceptual level, condonation hence, is unconstitutional.310ChanRoblesVirtualawlibrary
presupposes that the condoner has actual knowledge of what is to be
condoned. Thus, there could be no condonation of an act that is unknown. As Indeed, the lessons of history teach us that institutions can greatly benefit from
observed in Walsh v. City Council of Trenton304 decided by the New Jersey Supreme hindsight and rectify its ensuing course. Thus, while it is truly perplexing to think
Court: that a doctrine which is barren of legal anchorage was able to endure in our
jurisprudence for a considerable length of time, this Court, under a new
membership, takes up the cudgels and now abandons the condonation doctrine.
Many of the cases holding that re-election of a public official prevents his removal
for acts done in a preceding term of office are reasoned out on the theory of
E. Consequence of ruling.
condonation. We cannot subscribe to that theory because condonation, implying as
it does forgiveness, connotes knowledge and in the absence of knowledge there can
As for this section of the Decision, the issue to be resolved is whether or not
be no condonation. One cannot forgive something of which one has no knowledge.
the CA committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed injunctive writs.
That being said, this Court simply finds no legal authority to sustain the condonation
doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine
It is well-settled that an act of a court or tribunal can only be considered as with
adopted from one class of US rulings way back in 1959 and thus, out of touch from
grave abuse of discretion when such act is done in a capricious or whimsical
- and now rendered obsolete by - the current legal regime. In consequence, it is
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
high time for this Court to abandon the condonation doctrine that originated from
discretion must be so patent and gross as to amount to an evasion of a positive
Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima,
duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in
Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the CA.
23
contemplation of law, as where the power is exercised in an arbitrary and despotic this is a situation of exceptional character which this Court must ultimately resolve.
manner by reason of passion and hostility.311 It has also been held that "grave Further, since the doctrine has served as a perennial obstacle against exacting
abuse of discretion arises when a lower court or tribunal patently violates public accountability from the multitude of elective local officials throughout the
the Constitution, the law or existing jurisprudence."312 years, it is indubitable that paramount public interest is involved.

As earlier established, records disclose that the CA's resolutions directing the Third, the issue on the validity of the condonation doctrine clearly requires the
issuance of the assailed injunctive writs were all hinged on cases enunciating the formulation of controlling principles to guide the bench, the bar, and the public. The
condonation doctrine. To recount, the March 16, 2015 Resolution directing the issue does not only involve an in-depth exegesis of administrative law principles,
issuance of the subject TRO was based on the case of Governor Garcia, Jr., while but also puts to the forefront of legal discourse the potency of the accountability
the April 6, 2015 Resolution directing the issuance of the subject WPI was based on provisions of the 1987 Constitution. The Court owes it to the bench, the bar, and
the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, the public to explain how this controversial doctrine came about, and now, its
Jr. Thus, by merely following settled precedents on the condonation doctrine, which reasons for abandoning the same in view of its relevance on the parameters of
at that time, unwittingly remained "good law," it cannot be concluded that the CA public office.
committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension order was And fourth, the defense of condonation has been consistently invoked by elective
correctly issued. local officials against the administrative charges filed against them. To provide a
sample size, the Ombudsman has informed the Court that "for the period of July
With this, the ensuing course of action should have been for the CA to resolve the 2013 to December 2014 alone, 85 cases from the Luzon Office and 24 cases from
main petition for certiorari in CA-G.R. SP No. 139453 on the merits. However, the Central Office were dismissed on the ground of condonation. Thus, in just one
considering that the Ombudsman, on October 9, 2015, had already found Binay, Jr. and a half years, over a hundred cases of alleged misconduct - involving infractions
administratively liable and imposed upon him the penalty of dismissal, which carries such as dishonesty, oppression, gross neglect of duty and grave misconduct - were
the accessory penalty of perpetual disqualification from holding public office, for the placed beyond the reach of the Ombudsman's investigatory and prosecutorial
present administrative charges against him, the said CA petition appears to have powers."315 Evidently, this fortifies the finding that the case is capable of repetition
been mooted.313 As initially intimated, the preventive suspension order is only an and must therefore, not evade review.
ancillary issuance that, at its core, serves the purpose of assisting the Office of the
Ombudsman in its investigation. It therefore has no more purpose - and perforce, In any event, the abandonment of a doctrine is wholly within the prerogative of the
dissolves - upon the termination of the office's process of investigation in the instant Court. As mentioned, it is its own jurisprudential creation and may therefore,
administrative case. pursuant to its mandate to uphold and defend the Constitution, revoke it
notwithstanding supervening events that render the subject of discussion
F. Exceptions to the mootness principle. moot.chanrobleslaw

This notwithstanding, this Court deems it apt to clarify that the mootness of the V.
issue regarding the validity of the preventive suspension order subject of this case
does not preclude any of its foregoing determinations, particularly, its abandonment With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now
of the condonation doctrine. As explained in Belgica, '"the moot and academic rules on the final issue on whether or not the CA's Resolution316 dated March 20,
principle' is not a magical formula that can automatically dissuade the Court in 2015 directing the Ombudsman to comment on Binay, Jr.'s petition for contempt in
resolving a case. The Court will decide cases, otherwise moot, if: first, there is a CA-G.R. SP No. 139504 is improper and illegal.
grave violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when the The sole premise of the Ombudsman's contention is that, as an impeachable officer,
constitutional issue raised requires formulation of controlling principles to guide the she cannot be the subject of a charge for indirect contempt317 because this action is
bench, the bar, and the public; and fourth, the case is capable of repetition yet criminal in nature and the penalty therefor would result in her effective removal
evading review."314 All of these scenarios obtain in this case: from office.318 However, a reading of the aforesaid March 20, 2015 Resolution does
not show that she has already been subjected to contempt proceedings. This
First, it would be a violation of the Court's own duty to uphold and defend the issuance, in? fact, makes it clear that notwithstanding the directive for the
Constitution if it were not to abandon the condonation doctrine now that its Ombudsman to comment, the CA has not necessarily given due course to
infirmities have become apparent. As extensively discussed, the continued Binay, Jr.'s contempt petition:
application of the condonation doctrine is simply impermissible under the auspices
of the present Constitution which explicitly mandates that public office is a public
Without necessarily giving due course to the Petition for
trust and that public officials shall be accountable to the people at all times.
Contempt respondents [Hon. Conchita Carpio Morales, in her capacity as the
Ombudsman, and the Department of Interior and Local Government] are hereby
Second, the condonation doctrine is a peculiar jurisprudential creation that has
DIRECTED to file Comment on the Petition/Amended and Supplemental Petition for
persisted as a defense of elective officials to escape administrative liability. It is the
Contempt (CA-G.R. SP No. 139504) within an inextendible period of three (3) days
first time that the legal intricacies of this doctrine have been brought to light; thus,
24
from receipt hereof. (Emphasis and underscoring
supplied)ChanRoblesVirtualawlibrary

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment,
wherein she may properly raise her objections to the contempt proceedings by
virtue of her being an impeachable officer, the CA, in the exercise of its sound
judicial discretion, may still opt not to give due course to Binay, Jr.'s contempt
petition and accordingly, dismiss the same. Sjmply put, absent any indication that
the contempt petition has been given due course by the CA, it would then be
premature for this Court to rule on the issue. The submission of the Ombudsman on
this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this

Decision, the Court resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is

declared UNCONSTITUTIONAL, while the policy against the issuance of provisional
injunctive writs by courts other than the Supreme Court to enjoin an investigation
conducted by the Office of the Ombudsman under the first paragraph of the said
provision is DECLARED ineffective until the Court adopts the same as part of the
rules of procedure through an administrative circular duly issued
therefor;cralawlawlibrary

(b) The condonation doctrine is ABANDONED, but the abandonment

is PROSPECTIVE in effect;cralawlawlibrary

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S.
Binay, Jr.'s (Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of
the Office of the Ombudsman's supervening issuance of its Joint Decision dated
October 9, 2015 finding Binay, Jr. administratively liable in the six (6)
administrative complamts, docketed as OMB-C-A-15-0058, OMB-C-A-15-0059,
OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and OMB-C-A-15-0063;
and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment,
the CA is DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No.
139504 with utmost dispatch.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C.J. Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez,
Reyes, and Leonen, JJ., concur.
Velasco, Jr., Peralta, and Jardeleza, JJ., no part.
Brion, J., no part/ on leave.
Mendoza, J., on leave.
Bersamin, J., please see my concurring & dissenting opinion.

25
 8. At all events, there is no condonation because private respondent committed the
acts subject of the complaint after his re-election in 2013, as was argued by petition
in public respondent Court of Appeals.
CONCURRING AND DISSENTING OPINION
9. As mentioned earlier, there is no condonation. The assailed act (i.e. payment), by
private respondent's own admission during the proceedings before public
respondent Court of Appeals, took place during the period of June and July 2013,
BERSAMIN, J.: which was after his re-election in May 2013.1

The Ombudsman again discussed the doctrine of condonation at some length in her
I am writing this separate opinion to memorialize my concurrence with the Memorandum as the fourth and last argument presented on the issue of the
declaration of the ineffectiveness of the first paragraph of Section 14 of Republic Act propriety of the temporary restraining order and the writ of preliminary
No. 6770, and of the unconstitutionality of the second paragraph thereof. The main injunction.2 She reiterated, however, that the doctrine was only a matter of defense
opinion has been written well by our esteemed colleague, Associate Justice Estela that was relevant only in imposing an administrative penalty on the respondent
M. Perlas-Bernabe, who has exhibited her scholarly bent once again. But let me public elective official, to wit:
assure my colleagues in the Majority that if I submit this concurrence, I do not
mean to diminish in any way or degree the forcefulness and correctness of the 165. Thus, in deciding that the evidence of respondent Binay's guilt is strong,
justification for the declaration. I simply want to underscore that Section 14 of petitioner did not take into consideration the so-called "condonation doctrine" the
Republic Act No. 6770 should be struck down for authorizing the undue interference way respondent Court of Appeals did in its Third Resolution. The condonation
with the prerogatives of the courts of law to adopt whatever means were allowed by doctrine is applicable and relevant only to the imposition of an administrative
law and procedure to exercise their jurisdiction in the cases properly cognizable by penalty, not to the issuance of a preventive suspension, the latter being merely a
them. preliminary step in an administrative investigation.

My dissent focuses on the main opinion's re-examination of the doctrine of 166. Since a preventive suspension does not hold a public officer liable, it will not be
condonation. This controversy does not call for the revisit of the doctrine, and does affected by any "condonation" that the electorate may extend to the public officer.
not warrant its eventual abandonment. For the Court to persist in the re- Verily, for purposes of aiding an investigation, a public officer may be preventively
examination, as it does now, and to announce its abandonment of the doctrine suspended even as, ultimately, he or she will be exonerated from administrative
despite the lack of the premise of justiciability is to indulge in conjecture or in liability due to the condonation doctrine. CONDONATION IS A MATTER OF DEFENSE
unwarranted anticipation of future controversies. We should refrain from the re- - to be positively alleged and to be weighed according to the evidence - during the
examination. administrative proceedings, and not at the very preliminary stage thereof.3

The Ombudsman's supplemental petition raised condonation for the first time but I agree with the Ombudsman. The question of grave abuse of discretion on the part
only to support her insistence that the CA could not validly rely on the doctrine of of the CA could be settled not by re-examining and overturning the doctrine of
condonation to justify its issuance of the injunction. She maintained then that condonation but by reference to Section 24 of the Republic Act No. 6770. It would
condonation was a matter of defense to be properly raised only in the appropriate be plain error for us to determine whether the Court of Appeals (CA) gravely abused
administrative proceeding, viz: its discretion or not on the basis of the doctrine of condonation.

6. It must be further emphasized that the condonation doctrine is irrelevant in the The general investigatory power of the Ombudsman is decreed by Section 13 (1),
Ombudsman's determination of whether the evidence of guilt is strong in issuing Article XI of the 1987 Constitution,4 while her statutory mandate to act on
preventive suspension orders. Said doctrine does not go into the heart of subject- administrative complaints is founded on Section 19 of Republic Act No. 6770, viz.:
matter jurisdiction. Neither can it oust the Ombudsman of her jurisdiction which she
has already acquired. Private respondent's claim of condonation doctrine is equally a Section 19. Administrative complaints. — The Ombudsman shall act on all
matter of defense which, like any other defense, could be raised in the proper complaints relating, but not limited, to acts or omissions which:
pleading, could be rebutted, and could be waived.
1. Are contrary to law or regulation;cralawlawlibrary
As a defense, condonation should be passed upon after a decision on the
administrative proceedings, not this early in the proceeding. 2. Are unreasonable, unfair, oppressive or discriminatory;cralawlawlibrary

7. The condonation doctrine, however, cannot abate the issuance of a preventive 3. Are inconsistent with the general course of an agency's functions, though in
suspension order, precisely because an order of preventive suspension does not accordance with law;cralawlawlibrary
render a respondent administratively liable. A respondent may be preventively
suspended, yet may be exonerated in the end. 4. Proceed from a mistake of law or an arbitrary ascertainment of
26
facts;cralawlawlibrary As regard the second requisite, all the circumstances enumerated therein are
likewise present. The Complaint charges respondents with Grave Misconduct,
5. Are in the exercise of discretionary powers but for an improper purpose; or Serious Dishonesty and Conduct Prejudicial to the Best Interest of the Service. If
proven true, they constitute grounds for removal from public service under the
6. Are otherwise irregular, immoral or devoid of Revised Rules on Administrative Cases in the Civil Service. Moreover, since the
justification.ChanRoblesVirtualawlibrary respondents' respective positions give them access to public records and influence
on possible witnesses, respondents' continued stay in office may prejudice the cases
In line with the power to investigate administrative cases, the Ombudsman is filed against them. Thus, their preventive suspension without pay for a period of six
vested with the authority to preventively suspend respondent public officials and (6) months is in order.
employees pursuant to Section 24 of Republic Act No. 6770, which provides:
When he assailed the preventive suspension order by petition for certiorari in the
Section 24. Preventive Suspension. — The Ombudsman or his Deputy may CA, Binay, Jr. alleged that the preventive suspension order was illegal and issued
preventively suspend any officer or employee under his authority pending an with grave abuse of discretion because: (1) it contravened well-settled
investigation, if in his judgment the evidence of guilt is strong, and (a) the charge jurisprudence applying the doctrine of condonation; and (2) evidence of his guilt
against such officer or employee involves dishonesty, oppression or grave was not strong. He prayed that a temporary restraining order or writ of preliminary
misconduct or neglect in the performance of duty; (b) the charges would warrant injunction be issued to enjoin the implementation of the preventive suspension
removal from the service; or (c) the respondent's continued stay in office may order.
prejudice the case filed against him.
The CA heeded Binay, Jr.'s prayer for injunctive reliefs chiefly on the basis of the
The preventive suspension shall continue until the case is terminated by the Office doctrine of condonation. In the resolution promulgated on March 16, 2015, the CA,
of the Ombudsman but not more than six (6) months, without pay, except when the citing the pronouncement in Garcia, Jr. v. Court of Appeals,8 granted Binay, Jr.'s
delay in the disposition of the case by the Office of the Ombudsman is due to the application for the temporary restraining order, holding as follows:
fault, negligence or petition of the respondent, in which case the period of such
delay shall not be counted in computing the period of suspension herein provided. In Garcia v. Court of Appeals (GR No. 185132, April 24, 2009), the Supreme Court
held that suspension from office of an elective official, whether as a preventive
It is important to note, however, that the Ombudsman has no authority to issue the measure or as a penalty will undeservedly deprive the electorate of the services of
preventive suspension order in connection with criminal investigations of the person they have conscientiously chosen and voted into office.
government officials or employees because such authority rests in the courts in
which the criminal cases are filed.5 The Supreme Court in said case likewise found serious and urgent the question,
among other matters, of whether the alleged acts were committed in the previous
Under Section 24, supra, two requisites must concur to render the preventive term of office of petitioner therein. This is because if it were established that the
suspension order valid. The first requisite is unique because it can be satisfied in acts subject of the administrative complaint were indeed committed during
only one way, which is that the evidence of guilt is strong in the judgment of the petitioner's prior term, then following settled jurisprudence, he can no longer be
Ombudsman or the Deputy Ombudsman. But the second requisite may be satisfied administratively charged. It further declared imperative on the part of the appellate
in three different ways, namely: (1) that the offense charged involves dishonesty, court, as soon as it was apprised of the said considerable grounds, to issue an
oppression or grave misconduct or neglect in the performance of duty; or (2) the injunctive writ so as not to render moot, nugatory and ineffectual the resolution of
charge would warrant removal from the service; or (3) the respondent's continued the issues in the certiorari petition. (Garcia, supra)
stay in office may prejudice the case filed against him or her.6
The Supreme Court also declared that it would have been more prudent on the part
Respondent Jejomar Erwin S. Binay, Jr., along with other officers and employees of of the CA, on account of the extreme urgency of the matter and the seriousness of
the City of Makati, were administratively charged in the Office of the Ombudsman the issues raised in the certioraripetition, to issue a TRO while it awaits the
with grave misconduct, serious dishonesty, and conduct prejudicial to the best respective comments of the respondents and while it judiciously contemplates on
interest of the service.7 In her joint order dated March 10, 2015, the Ombudsman whether or not to issue a writ of preliminary injunction. It pointed out that the basic
stated that the requisites for the issuance of the preventive suspension order purpose of a restraining order is to preserve the status quo until the hearing of the
against Binay, Jr. and his corespondents were satisfied, specifically: application for preliminary injunction. That, it is a preservative remedy for the
protection of substantive rights and interests. (Garcia, supra)
The first requisite is present in these cases, as shown by the supporting evidence
attached as Annexes to the Complaint. These Annexes include, among other things, In view of the seriousness of the issues raised in the Petition for Certiorari and the
sworn statements of alleged losing bidders and of some members of the Makati City possible repercussions on the electorate who will unquestionably be affected by
BAC attesting to the irregularities in the subject procurement; documents negating suspension of their elective official, the Court resolves to grant petitioner's
the purported publication of bids; and disbursement vouchers, checks, and official prayer for a Temporary Restraining Order for a period of sixty (60) days
receipts showing disbursement of public funds by the city government. from notice hereof, conditioned upon the posting by petitioner of a bond in the
amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00)9
27
 Clearly then, the rule is that a public official cannot be removed for administrative
In ultimately granting the writ of preliminary injunction through its April 6, 2015 misconduct committed during a prior term, since his reelection to office operates as
resolution, the CA, relying on the doctrine of condonation adopted in Garcia, Jr.; a condonation of the officer's previous misconduct to the extent of cutting off the
Joson III v. Court of Appeals;10Aguinaldo v. Santos;11 and Salalima v. Guingona, right to remove him therefor. The foregoing rule, however, finds no application
Jr.,12 explained: to criminal cases pending against petitioner for acts he may have committed during
the failed coup.14
Garcia was simply an echo of teachings in Joson v. Cowl of Appeals (G.R. No.
160652, February 13, 2006) where the High Court declared that suspension from while in Salalima, the Court maintained that:
office of an elective official would deprive the electorate of the services of the
person they have voted into office. xxx [A]ny administrative liability which petitioner Salalima might have incurred in
the execution of the retainer contract in O.P. Case No. 5469 and the incidents
Along this line, the concept of condonation, as advocated by petitioner and opposed related therewith and in the execution on 6 March 1992 of a contract for additional
by public respondent Ombudsman, will assume resonance. repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450
are deemed extinguished by his reelection in the 11 May 1992 synchronozed
Premised on Aguinaldo, Salalima and Garcia, petitioner asserted that the public elections. So are the liabilities, if any, of petitioner members of the Sangguniang
respondent Ombudsman can hardly impose preventive suspension of petitioner, Panlalawigan ng Albay,who signed Resolution No. 129 authorizing petitioner
given his election in 2010 and re-election in 2013 as Makati City Mayor, relative to Salalima to enter into the retainer contract in question and who were reelected in
his perceived illegal participation in anomalous activities for the Makati City Hall the 1992 elections. This is, however, without prejudice to the institution of
Building II project from 2007 to 2013. appropriate civil and criminal cases as may be warranted by the attendant
circumstances, xxx15
xxxx
It is clear to me that, based on the language and the factual milieu of Aguinaldo and
To reiterate, there was no disagreement that petitioner was elected in 2010 and re- Salalima, which both cited Pascual v. Provincial Board of Nueva Ecija,16 and of other
elected as City Mayor of Makati in 2013. The acts constitutive of the charges in the akin rulings,17 condonation shall apply only in case of the re-election of a public
Complaint pertained to events from November 8, 2007, when City Ordinance No. officer who is sought to be permanently removed from office as a result of his
2007-A-015 appropriated P1,240,000,000.00 as supplemental budget for 2007. misconduct, not while such public officer is undergoing investigation. Condonation
From this budget, P400,000,000.00 was allocated for the parking building. It was necessarily implies that the condoned act has already been found to have been
allegedly during this time that a Negotiated Contract for the architectural and committed by the public officer. Hence, condonation applies to the penalty or
engineering services were negotiated and approved. Disbursements allegedly punishment imposed after the conduct of an administrative investigation. Under the
favored Hilmarc and MANA amidst irregularities in the bidding process during the circumstances, the pronouncements in Aguinaldo, Salalima and the others could not
term of petitioner as City Mayor of Makati. be applicable to the preventive suspension order issued to Binay, Jr. pending his
administrative investigation because preventive suspension pending the conduct of
Yet, to subscribe to public respondent Ombudsman's submission that condonation an investigation was not yet a penalty in itself, but a mere measure of precaution to
can only be appreciated by the investigating body after it is ventilated as an enable the disciplining authority to investigate the charges by precluding the
exculpation by petitioner and considered solely by public respondent, following the respondent from influencing the witnesses against him.18
exercise of its investigatory power, will ignore the Court's constitutional power and
duty to evaluate the factual and legal foundations for, nay, impediments to, a It is worth emphasis that preventive suspension is distinct from the penalty of
preventive suspension in an administrative case.13 suspension. The former is imposed on a public official during the investigation while
the latter, as a penalty, is served after the finaldisposition of the case.19 The former
In my view, however, the CA erroneously banked on the pronouncements in Garcia, is not a punishment or penalty for misconduct in office, but a merely preventive
Jr., Joson III, Aguinaldo, and Salalima to espouse the doctrine of condonation as the measure, or a preliminary step in the administrative investigation.20
basis to issue the injunctive writs under its resolutions promulgated on March 16,
2015 and April 6, 2015. In both Aguinaldo and Salalima,the Court applied the As I see it, the CA misconstrued the milieu in Garcia, Jr. and Joson III as an
doctrine of condonation to avoid the imposition of administrative liability upon re- application of the doctrine of condonation. The Court notably stated in Garcia,
elected public officials. Specifically, the Court held in Aguinaldo that: Jr. and Joson III that "suspension from office of an elective official would deprive
the electorate of the services of the person they voted into office" in the context of
Petitioner's re-election to the position of Governor of Cagayan has rendered the determining the propriety of the issuance of the preventive suspension order. In
administrative case pending before Us moot and academic. It appears that after the other words, the statement only served to remind the Ombudsman to issue the
canvassing of votes, petitioner garnered the most number of votes among the preventive suspension orders with utmost caution in view of the gravity of the
candidates for governoer of Cagayan province, xxx effects of suspending an incumbent elective local official. Hence, Garcia,
Jr. and Joson III did not apply the doctrine of condonation.
xxxx
I further underscore that the CA was then only resolving Binay, Jr.'s application for
28
injunctive reliefs against the preventive suspension order issued by the involved; they decline jurisdiction of moot cases. And where the issue has become
Ombudsman. At that point, the CA's application of the doctrine of condonation was moot and academic, there is no justiciable controversy, so that a declaration
irrelevant and unnecessary. thereon would be of no practical use or value. There is no actual substantial
relief to which petitioners would be entitled and which would be negated
A preliminary injunction is an order granted at any stage of an action prior to the by the dismissal of the petition.
judgment or final order requiring a party or a court, agency or a person to refrain
from a particular act or acts.21 The requirements for the issuance of a writ of In short, the Court should excuse itself from exercising jurisdiction because the
preliminary injunction or temporary restraining ordern are clearly set forth in main case, the administrative proceeding against the respondents, has already been
Section 3, Rule 58 of the Rules of Court.22 The sole objective of the writ of decided by the Ombudsman on the merits.
preliminary injunction is to preserve the status quo until the merits of the case can
be heard fully. The writ of preliminary injunction is generally based solely on initial IN VIEW OF THE FOREGOING, I VOTE to PARTIALLY GRANT the petition
and incomplete evidence;23 hence, it should not determine the merits of a case, or for certiorari and prohibition, and, accordingly, SET ASIDE the Resolution
decide controverted facts, for, being a preventive remedy, it only seeks to prevent promulgated on April 6, 2015 by the Court of Appeals.
threatened wrong, further injury, and irreparable harm or injustice until the rights
of the parties can be settled.24 As held in Saulog v. Court of Appeals25 it is sufficient I further VOTE to DISSOLVE the writ of preliminary injunction issued on April 8,
that: 2015 in C.A.-G.R. SP No. 139453; and to AFFIRM the Resolution promulgated on
March 20, 2015 in C.A.-G.R. SP No. 139504.
x x x for the court to act, there must be an existing basis of facts affording a
present right which is directly threatened by an act sought to be enjoined. And while
a clear showing of the right claimed is necessary, its existence need not be
conclusively established. In fact, the evidence to be submitted to justify preliminary
injunction at the hearing thereon need not be conclusive or complete but need only
be a sampling intended merely to give the court an idea of the justification for the
preliminary injunction pending the decision of the case on the merits. This should
really be so since our concern here involves only the proprietary of the preliminary
injunction and not the merits of the case still pending with the trial court.

Thus, to be entitled to the writ of preliminary injunction, the private respondent

needs only to show that it has the ostensible right to the final relief prayed for in its
complaint x x x. (bold emphasis supplied.)

By relying on the doctrine of condonation, therefore, the CA went beyond the

parameters for determining whether or not to issue the injunctive writ. To recall,
Binay, Jr. had filed his petition for certiorari in the CA primarily to assail the validity
of the preventive suspension order. What was raised for the CA to determine was
whether or not the Ombudsman satisfactorily complied with the requisites imposed
by Section 24 of Republic Act No. 6770 to establish that Binay, Jr. and his co-
respondents had the ostensible right to the final relief prayed for in their petition,
which was the nullification or lifting of the preventive suspension order. In this
regard, the CA plainly exceeded its jurisdiction.

In the meanwhile, the Ombudsman found Binay, Jr. administratively liable, and
dismissed him from the service. By such dismissal, the questions raised against the
CA's issuance of the writ of preliminary injunction against the Ombudsman were
rendered moot and academic. I join the Majority in saying that the preventive
suspension order, being an ancillary issuance, was dissolved upon the
Ombudsman's resolution of the administrative charges on the merits. Thus, to dwell
on the preventive suspension of Binay, Jr. and his co-respondents any further would
be superfluous, for, as the Court said in Philippine Savings Bank v. Senate
Impeachment Court:26

It is a rule of universal application that courts of justice constituted to pass upon

substantial rights will not consider questions in which no actual interests are
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