3 justices: SC shouldn’t have abandoned condonation doctrine in Junjun Binay case

The Supreme Court should have not re-examined and abandoned the controversial condonation doctrine in ruling on the case of dismissed Makati Mayor Junjun Binay, according to three justices.

In a 10-page concurring and dissenting opinion released Friday, Associate Justice Lucas Bersamin said it was a “plain error” to have touched on the issue of condonation in deciding whether the Court of Appeals had erred in stopping the Ombudsman from preventively suspending Binay, son of Vice President Jejomar Binay.

First appearing in Philippine jurisprudence in 1959, the condonation doctrine clears a public official of any administrative liability in the past if he or she is re-elected. Binay served as mayor in 2010 and was re-elected in 2013.

The Ombudsman suspended Binay over allegations of overpricing in the construction of the Makati City Hall Building II, the last three phases of it carried out from 2010 to 2013 during his tenure as Makati mayor. The first two phases of the construction was done before 2010, during his father's tenure.

"This controversy does not call for the revisit of the doctrine, and does not warrant its eventual abandonment,” said Bersamin in his opinion, referring to the younger Binay's suspension.

"For the Court to persist in the re-examination, as it does now, and to announce its abandonment of the doctrine despite the lack of the premise of justiciability is to indulge in conjecture or in unwarranted anticipation of future controversies. We should refrain from the re-examination,” he added.

Joining Bersamin in his concurring and dissenting opinion were Associate Justices Jose Perez and Teresita Leonard-De Castro.

Bersamin said the question of grave abuse of discretion on the part of the CA could be settled not by re-examining and overturning the doctrine of condonation, but by reference to Section 24 of Republic Act No. 6770 or the Ombudsman Act of 1989.

Section 24 sets the following conditions for the Ombudsman to preventively suspend a public officer or employee pending an investigation: if the evidence of guilt of strong; and if (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, (b) the charges would warrant removal from the service, or (c) the respondent's continued stay in office may prejudice the case filed against him.

In issuing a writ of preliminary injunction last April 6 in favor of Binay, the CA "erroneously" relied on the condonation doctrine, Bersamin said.

He said condonation should only apply in case of the re-election of a public office sought to be removed, and not while he or she is undergoing investigation like in Binay’s case.

"Condonation necessarily implies that the condoned act has already been found to have been committed by the public officer," he said. "Hence, condonation applies to the penalty or punishment imposed after the conduct of an administrative investigation."

Bersamin said the doctrine could not be applied to the preventive suspension of Binay because the preventive suspension pending the conduct of an investigation was not yet a penalty in itself but "a mere measure of precaution to enable the disciplining authority to investigate the charges by precluding the respondent from influencing the witnesses against him.”

Distinguishing the difference between the two, Bersamin said a preventive suspension is imposed during an investigation while a suspension is a penalty served after the final disposition of the case.

Since at the time Binay was merely seeking relief against his preventive suspension, the application of the condonation doctrine was "irrelevant and unnecessary," Bersamin said.

In its decision, the high court abandoned the condonation doctrine but clarified its application was “prospective,” meaning it would apply only in future cases.

The SC said it did not commit grave abuse because it merely followed settled precedents on condonation, which "at that time unwittingly remained good law," when it granted Binay a relief.

In the same ruling penned by Associate Justice Estela Perlas-Bernabe, the SC also struck down both Section 14, Par. 2 of RA 6770.

The SC deemed as "vague" Section 14, Par. 2 of RA 6770, which prevents a court, apart from the SC, from hearing any appeal or application for remedy against the decision or findings of the Ombudsman on pure question of law.

The SC said the portion of the law was vague for two reasons: It is unclear what the phrase "application for remedy" or the word "findings" refer to; and it does not specify what procedural remedy is solely allowable to the SC except that it may be taken only on a question of law.

SC also declared as "ineffective" Section 14, Par. 1 of RA 6770, which prohibits any court, apart from the SC, from issuing a writ of injunction to delay an investigation being conducted by the Office of the Ombudsman.

In its decision, the SC said the provision "encroached on the SC's constitutional rule-making authority, specifically in defining the scope of injunctions and restraint orders as provisional and ancillary to a court's subject matter jurisdiction and as inherent in a court.”

The SC said Congress violated the separation of powers when it eliminated a provisional remedy included in the Court's rules by limiting the power of all courts, except the SC, to issue injunctions over Ombudsman probes. —KBK, GMA News