Ombudsman’s dismissal, disqualification order vs. Junjun Binay legal –law experts

(Updated 10:31 a.m.) At least two law experts affirmed on Friday the legality of the dismissal and disqualification order issued by the Office of the Ombudsman against suspended Makati Mayor Junjun Binay.

 

In a phone interview with GMA News Online, lawyer Trixie Cruz-Angeles of the Integrated Bar of the Philippines (IBP) said the Office of the Ombudsman has the power to impose administrative penalty against a public official despite the absence of any case before the court.

 

“Yes pwede iyon, because it’s an administrative penalty. The Ombudsman has the power to impose administrative penalties, without prejudice to the results of the investigation on the criminal aspect of the complaint,” Angeles said.

 

On Friday afternoon, Ombudsman Conchita Carpio-Morales announced that her office found strong evidence to hold Binay guilty of administrative charges of grave misconduct and serious dishonesty over the alleged overpriced construction of the P2.28-billion Makati City Hall Building II, also referred as the Makati parking building.

 

With this ruling, the Ombudsman imposed on Binay the penalty of dismissal from service and perpetual disqualification from holding public office.

The Ombudsman, however, clarified that the order only pertains to the administrative aspect of the complaint and not to the criminal aspect, which includes charges of graft, malversation, falsification of public documents and violation of Republic Act No. 9184 or the Government Procurement Reform Act.

 

Also named as respondents in the criminal aspect of the complaint were Vice President Jejomar Binay and 22 other Makati City government officials.

 

The criminal aspect of the complaint against the Binay father and son and their co-accused is still under preliminary investigation by the Ombudsman Special Panel.

 

Last March, the Ombudsman suspended the younger Binay over the alleged overpricing in the construction of the Makati City Hall Building II. The Court of Appeals, however, issued a temporary restraining order against its implementation. This prompted the Ombudsman to elevate the matter before the Supreme Court.

 

Angeles said the latest order of the Ombudsman must stand amid the issue regarding the legality of the suspension order still pending with the High Tribunal.

 

“Those are two different issues. So yes, pwede pa ring mag-issue ang Ombudsman [ng dismissal and disqualification order],” Angeles said.

‘Dismissal, disqualification stands’
 

In a separate phone interview, University of the Philippines College of Law dean Danilo Concepcion expressed a similar view.

 

“A graft case against a public official has two aspects: the criminal and the administrative. The Ombudsman may find him guilty in the administrative aspect and impose the penalty of dismissal. The administrative penalty of dismissal carries the disqualification to hold public office,” Concepcion explained.

 

Concepcion further stressed that the Ombudsman’s ruling on the administrative aspect of the complaint can come ahead of the decision on the criminal aspect.

 

“This is without prejudice to the filing of a criminal case,” Concepcion said.

 

Concepcion also opined that while Binay’s camp has the right to appeal the Ombudsman’s latest decision before the higher court, the dismissal and disqualification is executory unless the court issues a temporary restraining order (TRO).

 

“The order of the Ombudsman is appealable to the higher court. But I think the dismissal and the disqualification stands unless the court issues a TRO,” Concepcion said.

Appeal

 

Binay family’s spokesperson, lawyer Joey Salgado, had earlier stated that the embattled suspended mayor will appeal the Ombudsman’s latest order before the court.

 

Salgado also maintained that Binay can still run for public office in 2016 with the absence of a final judgment from the court.

 

"Gusto nilang pigilan ang pagtakbo ni Mayor Junjun. Pero nagkakamali sila dahil hanggang walang final judgment sa kaso, pwedeng tumakbo sa eleksyon si Mayor Junjun Binay," Salgado said.

Dean Amado Valdez of the University of the East said Binay can indeed question the matter before the Supreme Court.

"The penalty of perpetual disqualification is penal in nature which only the court or Sandiganbayan can impose. Binay has to question it in the Supreme Court and ask for injunction so that he can reassume the office once the suspension is served," he told GMA News Online.

On the matter of Binay running for office, Valdez said: "Meanwhile, he can file his COC [certificate of candidacy] and argue that the decision is not yet final. If he wins again, he can invoke the Aguinaldo doctrine. Definitely, the order created legal obstacles that have to be resolved," he said.

Other local executives previously dismissed

The Ombudsman has dismissed and perpetually barred from holding public office other local government officials in the past, data gathered by GMA News Research showed.

Among them is Tuguegarao City Mayor Jefferson Soriano, who was found guilty of grave misconduct in 2014. Soriano appealed before the Ombudsman, but the agency affirmed the dismissal. The Court of Appeals, however, reinstated Soriano eight months after his dismissal. The Office of the Ombudsman lowered the penalty to three months suspension.

Masbate Gov. Rizalina Lanete was also dismissed from government service on Friday over the "anomalous utilization of her Priority Development Assistance Fund from 2007 to 2009 totalling P112.29 million." Facing plunder charges, she has been perpetually barred from holding public office.

Quintino Caspillo, Jr., mayor of Talugtug, Nueva Ecija, was removed from his post for nepotism. He elevated his case to the Court of Appeals, but the CA upheld his dismissal from service.

Pantabangan, Nueva Ecija Mayor Lucio Uera was found guilty of grave misconduct and grave abuse of authority for allegedly using "goons" to prevent certain permanent employees to report for work. He filed a motion for reconsideration which was denied by the Ombudsman. The CA later reinstated him to his post.

Cebu City Rep. Rodrigo Abellanosa was found guilty of grave misconduct for his role in the government's scholarship program. He filed a motion for reconsideration, but the Ombudsman upheld their decision. 

In 2006, Ombudsman Merceditas Gutierrez ordered the dismissal and permanent disqualification from office of Iloilo Gov. Niel Tupas allegedly on graft charges. However, the order was unenforceable, the Ombudsman said, because of Tupas' reelection in May 2007. Tupas' case was included in the impeachment complaint filed against Gutierrez before the House of Representatives, with complainants saying she committed grave abuse of discretion in dismissing the governor from service. The complaint was eventually dimissed. —With a report from Mark Merueñas/KG, GMA News