Professional Documents
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DECISION
PERLAS-BERNABE, J.:
The Case
The Facts
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the
release of funds for the remaining balance of the September
13, 2012 contract with Hilmarc's for Phase V of the Makati
Parking Building project in the amount of
P27,443,629.97;47 and
I.
A common requirement to both a petition for certiorari and
a petition for prohibition taken under Rule 65 of the 1997
Rules of Civil Procedure is that the petitioner has no other
plain, speedy, and adequate remedy in the ordinary course of
law. Sections 1 and 2 thereof provide:
x x x x
x x x x (Emphases supplied)
II.
x x x x
x x x x
x x x x
xxxx
RULE 45
Appeal from Court of Appeals to Supreme Court
RULE 45
Appeal from Court of Appeals to Supreme Court
x x x x
RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party
desiring to appeal by certiorarifrom a judgment, final order
or resolution of the Court of Appeals, the Sandiganbayan,
the Court of Tax Appeals, the Regional Trial Court or other
courts, 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 injunction or other provisional remedies
and shall raise only questions of law, which must be
distinctly set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the same
action or proceeding at any time during its pendency.
(Emphasis and underscoring supplied)
D. Consequence of invalidity.
III.
x x x x
x x x x
x x x xChanRoblesVirtualawlibrary
x x x x
x x x x cralawlawlibrary
x x x x
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in
the Rules of Court?
JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will
correct me if I will be mistaken under the rubric of what is
called provisional remedies, our resident expert because
Justice Peralta is not here so Justice Bersamin for a while.
So provisional remedy you have injunction, x x x.
x x x x
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5,
subparagraph 5 of Article VIII of 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 read that provision?
JUSTICE LEONEN:
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
constitutional organ?
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII
Sections 1 and 2 which we've already been discussed with
you by my other colleagues, is that not correct?
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the
power of Congress, is that not correct?
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the
Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a
separate case or is it part of litigation in an ordinary case?
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not
correct?
JUSTICE LEONEN:
In order to preserve the power of a court so that at the
end of litigation, it will not be rendered moot and
academic, is that not correct?
JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph,
unconstitutional?
x x x x
JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to
Dismiss under Rule 16?
JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court
shall have the power to issue the supplemental pleading
called the bill of t particular [s]? It cannot, because that's part
of procedure...
JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash,
is that not correct?
JUSTICE LEONEN:
So what's different with the writ of injunction?
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other
words, when they create a special agrarian court it has all
procedures with it but it does not attach particularly to that
particular court, is that not correct?
JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the
concept of a TRO? It was a Rule. A rule of procedure and
the Rules of Court, is that not correct?
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not
exist unless it is [an] ancillary to a particular injunction in a
court, is that not correct?
IV.
In other words, the law sets forth two (2) conditions that
must be satisfied to justify the issuance of an order of
preventive suspension pending an investigation, namely:
(1) For one, it has been widely recognized that the propriety
of removing a public officer from his current term or office
for misconduct which he allegedly committed in a prior term
of office is governed by the language of the statute or
constitutional provision applicable to the facts of a particular
case (see In Re Removal of Member 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 prosecuted or
removed from office for any act he may have committed
prior to his election to office" (see State ex rel. Rowlings v.
Loomis).252 On the other hand, the Supreme Court of
Oklahoma allows removal from office for "acts of
commission, omission, or neglect committed, done or
omitted during a previous or preceding 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 interpretation of the phrase "in office."
On one end, the Supreme Court of Ohio strictly construed a
removal statute containing the phrase "misfeasance of
malfeasance in office" and thereby declared that, in the
absence of clear legislative language making, the word
"office" must be limited to the single term during which the
offense charged against the public officer occurred (see State
ex rel. Stokes v. Probate Court of Cuyahoga
County)254 Similarly, the Common Pleas Court of Allegheny
County, Pennsylvania decided that the phrase "in office" in
its state constitution was a time limitation with regard to the
grounds of removal, so that an officer could not be removed
for misbehaviour which occurred; prior to the taking of the
office (see Commonwealth v. Rudman)255 The opposite was
construed in the Supreme Court of Louisiana which took the
view that an officer's inability to hold an office resulted from
the commission of certain offenses, and at once rendered him
unfit to continue in office, adding the fact that the officer had
been re-elected did not condone or purge the offense
(see State ex rel. Billon v. Bourgeois).256 Also, in the
Supreme Court of New York, Apellate Division, Fourth
Department, the court construed the words "in office" to
refer not to a particular term of office but to an entire tenure;
it stated that the whole purpose of the legislature in enacting
the 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
misconduct for a previous one (Newman v. Strobel).257
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 decided
under the 1935 Constitution, which dated provisions do not
reflect the experience of the Filipino People under the 1973
and 1987 Constitutions. Therefore, the plain difference in
setting, including, of course, the sheer impact of the
condonation doctrine on public accountability, calls
for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
x x x x
x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary
x x x x
E. Consequence of ruling.
With this, the ensuing course of action should have been for
the CA to resolve the main petition for certiorari in CA-
G.R. SP No. 139453 on the merits. However, considering
that the Ombudsman, on October 9, 2015, had already found
Binay, Jr. administratively liable and imposed upon him the
penalty of dismissal, which carries the accessory penalty of
perpetual disqualification from holding public office, for the
present administrative charges against him, the said CA
petition appears to have been mooted.313 As initially
intimated, the preventive suspension order is only an
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, dissolves -
upon the termination of the office's process of investigation
in the instant administrative case.
F. Exceptions to the mootness principle.
V.
SO ORDERED.chanroblesvirtuallawlibrary