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COMMENT/OPPOSITION
(Re: Petition for Certiorari and Prohibition With Urgent
Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction dated 25 March 2015)
Private Respondent JEJOMAR ERWIN S. BINAY, JR., by
counsel, most respectfully opposes the Petition for Certiorari and
Prohibition With Urgent Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction dated 25 March
2015, on the following presentation:
PREFATORY
The instant Petition for Certiorari and Prohibition, although filed
pursuant to Rule 65 of the Rules of Court, clearly appears to be
seeking from this Honorable Court the resolution of two (2) purely
legal questions, i.e., (1) the exact interpretation or application of
Section 14 of RA 6770; and (2) whether an impeachable officer may
be subjected to contempt proceedings. Thus, it is respectfully
submitted that the remedy to which Petitioner resorted is erroneous,
and war~ants an outright dismissal by this Honorable Court for utter
lack of merit.
This has been made clear by the I-Ionorable Court in the case of
..
COUNTER-STATEMENT OF FACTS
1. On 5 March 2015, a special panel of investigators namely
Sandy D. Alcantara, Virgillo T. Pattugalan, Peter Kate C. Maningas,
Jose Ronald M. Bersales, Maria Merlinda S. Managhaya-Henson, and
Maria Teresa. L. Lee-Rafols, subn1itted with the Ombudsman a
Complaint dated 3 March 2015 against, among others, Private
Respondent.
2.
The Complaint alleged that Private Respondent along with
others purportedly violated several provisions of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
during the procure1nent of the five phases of the Makati City I--Iall
Parking Building. A copy of said Complaint was attached as Annex
"B" of Private. Respondent's Petition for Certiorari dated 11 March
2015.
3.
On 9 March 2015, Petitioner Ombudsman ordered, an1ong
others, Private Respondent to file his count.er-affidavit within ten
(10) days from receipt of the said Order. A copy of the said Order was
attached as Annex "C" of Private Respondent's Petition for Certiorari
dateci 11March2015.
4.
On 10 March 2015, without waiting for the counteraffidavit of Private Respondent, Petitioner Ombudsman issued the
assailed Joint Order, whereby Private Respondent was suspended for
six (6) months, due to the alleged anon1alies that occurred during the
five (5) phases of the procurement and construction of the Makati
City Hall. Parking Building. The assailed Joint Order directed the
Departn1ent of Interior Local Government (DILG) to immediately
implement the preventive suspension of Private Respondent.
2
Ibid.
5.
On 11 March 2015, Private Respondent received a copy of
the assailed Joint
for
. Order and on the same date filed his Petition
.
Certiorari with Extremely Urgent Application for Tenzporary Restraining
Order and/or Writ of Preliminary Injunction.
6.
On 16 March 2015, Public Respondent granted Private
Respondent's application for the issuance of a Temporary
Restraining Order (TRO), aftached as Annex "B" to Private
Respondent's Amended and Supplenzental Petition for Contempt dated
18 March 2015, to wit:
"In view of the seriousness of the issues raised in the Petition
for Certiorari and the possible repercussions on the electorate who
will unquestionably be affected by the suspension of their elective
official, the Court resolves to grant petitioner's prayer for a
Temporary Restraining Order for a period of sixty (60) days from
notice hereof, conditioned upon the posting by petitioner of a bond
in the amount of FIVE HUNDRED THOUSAND PESOS
(PS00,000.00).
Meanwhile, let the hearing of the application for the issuance
of a writ of preliminary injunction be set on March 30, 2015 and
March 31, 2015 all at 2:00 o'clock on the afternoon, and the
Respondents, Hon. Conchita Carpio-Morales, in her capacity as the
Ombudsman and the Department of Interior and Local
Government, are hereby ORDERED to file their Comment on the
Petition for Certiorari filed by herein petitioner within an
inextendible period of ten (10) days from receipt of a copy hereof.
SO ORDERED."
7.
Shortly upon receipt of the Public Respondent's Resolution
dated 16 March 2015, Private Respondent posted a cash bond in the
amount of Five Hundred Thousand Pesos (PhP 500,000.00) in
compliance with said Resolution as shown by Private Respondent's
Ex-Parte Compliance duly stamped received by the Honorable Court,
attached as A1u1ex "C" of Private Respondent's Petition for Conternpt.
8.
However, despite due notice and receipt of Public
Respondent's Resolution dated 16 March 2015, granting Private
Respondent's application for the TRO on the Joint Order preventively
suspending him, Petitioner, and those acting under her, nevertheless
willfully and maliciously ignored and refused to comply with the
Public Respondent's directive.
9.
On 17 March 2015, as Private Respondent's Petit-ion for
Contenzpt was on its way to being filed, Private Respondent, through
counsel, received a copy of the Manifestation filed by Petitioner in the
Petition pending before Public Respondent and docketed as CA-G.R.
SP No. 139453. A copy of the Manifestation dated 17 March 2015 was
attached as Annex "E" of Private Respondent's Amended and
Supplernental Petition for Contempt.
10. In her Manifestation, Petitioner Ombudsman simply
conveyed her own opinion to Public Respondent, i.e. that the
Temporary Restraining Order is already moot and academic and thus
without legal effect.
11. On 19 March 2015, Private Respondent filed an Amended
and Supplemental Petition for Contempt dated 18 March 2015,
impleading Petitioner as respondent in the conten1pt case.
GROUNDS
l.
B.
THE
PETITIOlV
IS
FATALLY
DEFECTIVE FOR FAILURE OF
PETITIONER TO FILE A MOTION
FOR RECONSIDERATION OF THE
ASSAILED RESOLUTIONS.
C.
THE
PETITIO~NCONSTITUTES
WILLFUL FORUM-SHOPPING ON
THE PART OF PETITIONER.
6
II.
THE PRESENT PETITION
DISMISSED FOR UTTER
MERIT.
MUST
LACK
BE
OF
A.
PUBLIC
RESPONDENT
HAS
JURISDICTION
OVER
THE
PETITION
FOR
CERTIORARI,
ASSAILING PETITIONER'S JOINT
ORDER DATED 10 MARCH 2015
AND
THE
AMENDED
AND
SUPPLEMENTAL PETITION FOR .
CONTEMPT DATED 17 MARCH 2015.
B.
C.
PUBLIC
RESPONDENT
HAS
JURISDICTION
TO
REQUIRE
PETITIONER OMBUDSMAN, EVEN
IF SHE IS AN IMPEACHABLE
OFFICER, TO FILE HER COMMENT
TO THE CONTEMPT CASE FILED
AGAINST HER.
UL
DISCUSSION
I.
1.5
However, it must be pointed out that while the power of
the Ombudsman to investigate may not be restrained, such power is
not without li1nits. As discussed above, Section 1, Article VIII of the
Constitution specifically vests in the Supre1ne Court and the lower
courts the Judicial Pmuer, which includes the duty of the courts of
justice to settle actual conhoversies involving rights which are legally
demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.
10
11
THE
PETITION
IS
F'ATALLY
DEFECTIVE FOR FAILURE OF
PETITIONER TO FILE A MOTION
FOR RECONSIDERATION OF THE
ASSAILED RESOLUTIONS.
Julie's Franchise Corporation, et al. vs. Ruiz, et al., G.R. No. 180988, 28 August 2009.
12
\,
certiorari
is
prerogative
writ,
never
13
C.
THE
PETITION
CONSTITUTES
WILLFUL FORUM-SHOPPING ON
THE PART OF PETITIONER.
14
II.
THE PRESENT PETITION
DISMISSED FOR UTTER
MERIT.
A.
MUST
LACK
BE
OF
PUBLIC
RESPONDENT
HAS
JURISDICTION
OVER
THE
PETITION
FOR
CERTIORARI,
ASSAILING PETITIONER'S JOINT
ORDER DATED 10 MARCH 2015
AND
THE
AMENDED.
AND
15
SUPPLEMENTAL
PETITION FOR
' , :. C0MTEMPT DATED 17 MARCH 2015.
16
17
18
prosecutory
powers
granted
by
the
Constitution to the Ombudsn1an but upon
practicality as well. It is within the context of
this well-entrenched policy that the Court
proceeds to pass upon the validity of the
preventive suspension order issued by the
01nbudsman.
While it is an established rule in
administrative law that the courts of justice
should respect the findings of fact of said
adminishative agencies, the courts 1nay not
be bound by such findings of fact when
there is absolutely no evidence in support
thereof or such evidence is clearly,
manifestly and patently insubstantial; and
when there is a clear showing that the
administrative agency acted arbitrarily or
with grave abuse of discretion or in a
capricious or whimsica1_ manner, such that
its action may amount
... to an excess or lack of
jurisdiction." (Emphasis supplied)
2.6 Undoubtedly, based on the foregoing, it is clear that the
courts, including Public Respondent, has jurisdiction to review the
acts of the Office of 01nbudsman and issue an injunctive relief if
warranted.
2.7 In fact in the case of Garcia, Jr. vs. Court of Appeals, G.R.
No. 185132, 24April 2009, the Supreme Court considered the Public
Respondent Court of Appeals to have acted with grave abuse of
discretion when it failed to act on the prayer for injunctive relief
inade by Petitioner Garcia as regards his preventive suspension
order. After making such pronouncen1ent, the Supre1ne Court then
referred the matter of determination of the validly of the suspension
order to the Court of Appeals, thus:
"In this case, for the CA to defer action on
petitioners' application for an injunctive relief
pending the filing of respondents' con1111ent is
to foreclose altogether the very remedy
sought by petitioners when they questioned
the alleged illegal preventive suspension. This
is so, because the Ombudsman's Order is
19
B.
21
1. Right in Esse
2.13 It is a inatter of judicial notice that Private Respondent is
the duly elected Mayor of the City of Makati having been
overwhelmingly elected to serve as such until 2016. Hence, Petitioner
has a clear and unmistakable mandate to act as the local chief
executive of Makati City for the duration of his term.
2.14 However, Petitioner asserts that Private Respondent has
no clear right to the public office of the Mayor of Makati City since
there is allegedly "no vested right in public office, nor an absolute
right to hold office." 4
2.15 Nonetheless, the fact that Private Respondent was elected
as Mayor of Makati City, he is entitled to hold such office and
discharge its functions for the duration of his term and he inay not,
without valid cause, be ren1<Jved therefrom or prevented fro1n
occupying the saine. This is so because" although public office is not
property under Section 1 of the Bill of rights of the Constitution, and
one cannot acquire vested right to public office, it is nevertheless, a
protected right." (Namil vs. COMELEC, G.R. No. 150540, 28 October
2003.
22
xxx
PHASE III
78. On 21 September 2.010, Mayor Jejomar
Erwin Binay, Jr. (Mayor Binay, Jr.) issued the
Notice of Award. On 28 September 2010, the
Contract was executed by the City of Makati
represented by Mayor Binay, Jr. and
Hilmarc' s represented by Efren Canlas.
Xxx
PHASE IV
93. On the (sic) 18 August 2011, the
Contract was executed by the City of Makati
represented by Mayor Binay, Jr. and
Hilmarc' s represented by Efren Canlas.
Xxx
PHASE V
106. On 13 September 2012, the Contract was
executed by the City of Nlakati represented by
Mayor Binay, Jr. and Hilmarc' s represented
by Efren Canlas with a contract amount of
P141,649,366.00." (Underscoring supplied)
2.19 In this case, it can be taken judicial notice of that Private
Respondent was first elected as inayor of the City of Makati on June
28, 2010 and subsequently re-elected on May 14, 2013. Undoubtedly,
23
xxx
xxx
24
25
26
27
30
')
l__
C.
PUBLIC
RESPONDENT
HAS
JURISDICTION
TO
REQUIRE
PETITIONER OMBUDSMAN, EVEN
IF SHE IS . AN IMPEACHABLE
OFFICER, TO FILE HER COMMENT
TO THE CONTEMPT CASE FILED
AGAINST HER.
31
32
33
xxx
xxx
34
order was issued, that is, that Private Respondent is the Mayor of
Makati City.
2.49 Hence, she was duty-bound to comply with the TRO
issued by Public Respondent and her failure to do so inakes her liable
for contempt.
Petitioner Ombudsman is not exetiq!t from
contempt proceedings.
2.53 This has been made clear by the Honorable Court in the
case of Philippine Guardians Brotherhood, Inc. vs. Commission on
Electiolls (G.R. No. 190529, 22 March 2011), which is on all fours with
the instant case. In the said case, the l-Ionorable Court found the
COMELEC (comprising of impeachable officers) guilty of indirect
contempt for having failed to comply with its Status Quo order. In
making such finding, the Honorable Court pronounced:
11
35
36
xx xx
xx xx
is
.
a tduty. Contempt under Rule.. Tl of the Rules of Court is a special
civil action that cannot be converted into a criminal action. (Sevilla v.
Borreta, A.M. No. RTJ-04-1836, July 14, 2004)
"'
xxx
xxx
23.
For their utter failure to comply with
the I--Ionorable Court's Resolution granting the
application for TRO, it is imperative that
contempt proceedings be commenced against
Respondents for their . contu1nacious and
willful disobedience ..to the Honorable Court's
lawful order.
A copy of the M1mifestntio11 dated 17 March 2015 is attached as Annex "E" of the l\111e11ded nlllf
S11pple111e11tnl Petitio11 for Co11telllpf
41
"
24.
Such
willful,
deliberate
and
contumacious
acts
and
01nissions
of
Respondents in craftily refusing compliance
with the TRO is a patent and willful contempt
of court as it constitutes disobedience of or
:resistance to a lawful wid!, process, order, or
judgment of a court, 8 and hnproper conduct
tending, directly o't indirectly, to impede,
obstruct, or degrade the administration of
justice. 9
xxx
xxx
xxxx
2 Section
42
III.
PETITIONER FAILED TO SHOW THAT
SHE IS ENTITLED TO ANY INJUNCTIVE
RELIEF.
3.1 In the case of Los Banos Rural Bank, Inc., vs. Pacita 0.
Africa, et. al., C.R. No. 143994, 11 July 2002, the Supre1ne Court held,
thus:
"A writ of preliminary injunction is issued to
preserve the status quo ante, upon an
applicant's showing of two important requisite
conditions; nainely, (1) the right to be
protected exists prima facie, and (2) the acts
sought to be enjoined are violative of that
right. It must be proven that the violation
sought to be prevented would cause an
irreparable injustice."
3.2 In the instant case, Petitioner miserably failed to meet
such requirements.
3.3 It must be pointed out that in support of her application
for an injunctive relief, Petitioner 1nerely alleged that as
Ombudsman, she "has the clear legal right - if not solen1n duty - to
preserve the integrity of the Office of the Ombudsman and its legal
proceedings, by ensuring that its Suspension Order is given full
force and effect and not circumvented." Moreover, petitioner has a
clear legal right not to be subjected to contempt proceedings."
3.4 Obviously, such allegations are not sufficient to establish
her Right in Esse. First, as previously pointed out, the Constitution
expressly grants the courts, including Public Respondent, the
judicial power to review the Ombuds1nan' s acts and orders to
determine if there has been grave abuse of discretion amounting to
lack or excess of jurisdiction. Thus, it is beyond cavil that Public
Respondent has the power and jurisdiction over orders and findings
of the Office of the Ornbudsman in adn1inistrative cases (Fabian vs
Desierto, G.R. No. 129742, 16Septerr1ber1998)
3.5 Second, Petitioner herself failed to show the
01nbudsman's clear right under RA 6770 that she had to ask for its
43
determination, thus:
"5.5 Petitioner seeks to take this opportunity
to obtain a ruling, on behalf of the institution
she represents, that will clarify once and for all
the extent to which respondent Court of
Appeals and lower courts may interfere with
the On1buds1nan' s investigations. Index anirni
senna est - speech is the index of intention. The
language of the law, when clear and
unainbiguous, should be given effect. Indeed
the principle verba legis non est recedendum from the words of the statute there should be
nor departure - is "well-entrenched in this
jurisdiction. Given these universally accepted
rules of statutory construction, it is high time
that this Honorable Court decide, once and for
all, exactly what the law means when it
categorically states that No writ of injunction shall be issued by
any court to delay an investigation being
conducted by the Ombuds1nan under this Act,
unless there is a prima facie evidence that the
subject 1natter of the investigations is outside
the jurisdiction of the Office of the
Ombudsman."
3.6 Clearly, that Petitioner had to ask for clarification from
this Honorable Court as to the On1buds1nan' s rights and the
interpretation of Section 14 of RA 6770, underscores the fact that she
has no clear and legal right to be protected in the instant case.
3.7 On the other hand, as earlier pointed out, the fact that
Petitioner is an in1peachable officer does not auton1atically result in
her being exe1npt from a contempt proceeding since in conten1pt,
especially in civil contempt as in the instant case, the purpose is
1nerely to compel her to obey th'e lawful order of the courts and not
to remove her from office.
3.8 Undoubtedly, the foregoing would show that Petitioner
failed to establish a clear legal right that rnust be protected by an
injunctive writ. In the case of Power Sites and Signs, Inc. vs. United
Neon, G.R. No. 163406, 26 November 2009, the Supren1e Court held
44
45
MARIA PATRICIA L.
Roll of Attorneys No. 49629
IBP No. 960973/Lifetime/Makati City
PTR No. 4760047 /1-8-15/Makati City
MCLE No. IV-001877 / 4-24-13/Pasig City
Petitioner
Ombuds1nan Building, Aghain Road
North Triangle, Dilimau
1101 Quezon Ci~y
.,/:''\
"
"
EXPLANATION
'
46