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Pointing the fingers in the right direction

(Article published in the Jan  31, 2007 issue of Manila Standard Today)  

     Senator Alfredo Lim, as usual, hit the bull’s eye in his privilege speech last week. The people who should be to taken task for the Iloilo Capitol attack on Gov. Neil Tupas are not the foot soldiers, i.e. not the policemen from the Regional Mobile Group of Western Visayas, who were seen on television seeming to employ “excessive force” in trying to dislodge the governor and his supporters from his office, just  hours after the announcement of his dismissal by the Ombudsman.

       The real parties who ought to be blamed for the Iloilo debacle, as correctly pointed out by Senator Lim, are their higher-ups who gave the order to attack, those who in a manner of speaking let loose the dogs of war, in utter disregard of the fact that the governor was placed in office by an act of the sovereign people, untainted by any “Hello, Garci” type of scandal.  The policemen’s superiors have to be asked to explain why they gave the order that was, according to Gov. Tupas,  tantamouint to an “attack”, apparently prematurely, way before the order of the Ombudsman dismissing him had became final and executory.

       The good senator, now said to be seeking in the coming local elections to retake his position as Mayor of Manila, has jurisprudence on his side.  As early as four years ago, the Supreme Court, in Lapid v. Court of Appeals (334 SCRA 738) ruled that, pending appeal, the decision of the Ombudsman imposing on a public official a penalty other than public censure or reprimand, suspension of one month or less, or a fine equivalent to no more than month’s salary, is not final and executory.
 










        Manuel M. Lapid, when he was governor of Pampanga, was charged with “dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service by demanding and collecting from various quarrying operators in the province a control fee, control slip or monitoring slip of Php 120.00 per truckload of quarry material, without an enabling ordinance and without issuing receipts for the amounts collected. 

       On 22 November 1999, the Ombudsman found the governor administratively liable for misconduct and meted out the penalty of one (1) year suspension without pay.  The usual motion for reconsideration was filed and was, subsequently, denied on 12 January 2000.  Within the allowable period, the governor appealed to the Court of Appeals. One day after receipt of the petition for review, the Court of Appeals issued a temporary restraining order (TRO).  When the 60-day life of the TRO expired on 19 March 2000 without the Court of Appeals acting on the governor’s prayer for a writ of preliminary injunction, Lapid ran to the Supreme Court. 

       While the case was with the Supreme Court, the Court of Appeals on 22 March 2000 denied the governor’s prayer for injunctive relief. The following day, the Department of Interior and Local Government, implemented the order and installed an office-in-charge to act as governor. 

       The sole issue before the Supreme Court was whether or not the decision of the Office of the Ombudsman imposing the penalty of suspension of one (1) year without pay is immediately effective, despite a pending appeal.

       The Supreme Court analyzed Section 27 of R.A. No. 6770, or the Ombudsman Act of 1989, and noted that orders, directives, or decisions of the Ombudsman imposing the penealty of public censure or reprimand, suspension of not more than one month’s salary are ordained by law to be final and executory.  However, the same section of the law also provides that an appeal of all administrative disciplinary cases may be made within ten (10) days from receipt of notice. 

       The Supreme Court harmonized the two provisions, along the same lines of Section 7 of Rule III of the Rules of Procedure of the Office of the Ombudsman.  It ruled that, except for decisions imposing the punishments specifically mentioned in Section 27 of R.A. No. 6770, an appeal timely filed will stay the immediate implementation of the decision.

        Subsequent cases considered Lapid as binding precedent.   A little over two years later, the Supreme Court decided Lopez v. Court of Appeals, G.R. No. 144573, promulgated September 24, 2002.  Whereas Lapid involved the penalty of suspension of one (1) year, Lopez dealt with the penalty of only six (6) months and one (1) suspension without pay.  Appeal to the Court of Appeals, after the usual motion for reconsideration, was made on 06 March 2000.  Notwithstanding the appeal, implementation was effected two days later on 08 March 2000. 

       The Supreme Court, citing Lapid, made it very clear:  “only orders, directives or decisions of the Office of the Ombudsman imposing the penalty of public censure or reprimand, or suspension of not more than one (1) month, or fine not equivalent to one (1) month salary shall be final and unappealable.  In all other disciplinary cases, the law gives the respondent the right to appeal.  In these cases, finality comes only after the lapse of the period to appeal if no appeal is perfected, or after the denial of the appeal.

           “The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal.  Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory”, explained the Supreme Court.

       In other words, the general rule is that a respondent found guilty by the Office of the Ombudsman in an administrative case is given the right to appeal.  Until that right may be exercised, and, when exercised, the appeal is finally ruled upon, the order of the Ombudsman cannot be implemented.

       Doubting Thomases who argue that the foregoing rulings are not applicable to Governor Tupas because they deal only with suspension and not with dismissal will not find comfort in Office of the Ombudsman v. Pendatun G. Laja and the Court of Appeals, G.R. No. 169241, promulgated May 2, 2006. 

       In Laja, the Supreme Court was confronted with the dismissal of the respondent for dishonesty, neglect of duty and grave misconduct. That puts the facts in all fours with Governor Tupas’ situation.

       The Supreme Court, invoking Lapid and Lopez as binding authority, dismissed the challenge of the Ombudsman.  Again, the court reiterated the rule that “the order dismissing an employee from the service…is not immediately executory considering the pendency of the appeal.”

       The good senator thus has reason to protest against putting all the blame only on those who followed the orders.  He himself was once a struggling cop as well-as a survivor and veteran of several death-defying armed assaults and encounters in the line of duty.

       Without offering excuses for his kin whom he lawyerly advises as obliged only to follow legal orders, he nevertheless calls attention to the graver responsibility of those who gave the attack orders.

       The latter are obviously the more liable ones.  Sitting in the comfort of their offices, immune to the risks and dangers of physical presence on the ground, and intoxicated by the sense of authority at their finger tips, they are prone, and too often succumb, to the allures of the infamous quotation, “what are we in power for?”

       Lucky for Governor Tupas and his supporters, they were made of sterner stuff.  In the case of Laxina, Sr. v. Office of the Ombudsman (471 SCRA 542), the only point won by the appealing public official was that he was wrongfully removed from office before the dismissal became final.  But, to no avail, since he had already stepped down by the time judicial relief came.

        

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