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Why bother with electing local officials if they could be easily removed?

(Article published in the Feb 21, 2007 issue of Manila Standard Today)  

       One of my partners at Romulo Mabanta Buenaventura Sayoc & De Los Angeles, Atty. Jacinto “Jack” Jimenez, for some perverse reason reads my column regularly, if not religiously, and I, even more perversely appreciate it, and, in fact, encourage him to do so.

       My long time friend, way back from our pre-law days at the Ateneo College of Arts and Sciences working for our bachelor’s degree in the early sixties, Jack makes it his mission to call my attention to mistakes that every now and then arise in my reading of the law.  I, on the other hand, seize those moments as my opportunity to licentiously ask him to lead me to the recent law and jurisprudence that I missed. In effect, he is my willing researcher for a corrective column that I then pass off as product of my own diligence.

       Routinely, Jack comes up with the latest of the latest.  That explains why he was consistently at the top of our law class and is known to generations of Ateneo law students and professors as the “Walking SCRA.”  And just as routinely, I somehow disagree with his reading both of legal texts and horoscopes.  That explains why he missed the top spot in our law class only by a hair and I count my class rank from the bottom; why he was, when we took the bar, third placer losing to the first and second only by a nose while I was among those brought up the rear; and why he is more senior to me in our law firm.

       After reading my article agreeing with Senator Alfredo Lim’s privilege speech that correctly pointed out that it was the top enforcers of still President Gloria Macapagal Arroyo, and not the lowly policemen, who ought to take responsibility for the brutality and “over-kill” at the Iloilo capital attack on Governor Tupaz, Jack directed me to In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, 497 SCRA 636, suggesting that I should revise my thinking accordingly.  I have no problems with revising my views, as a general proposition, but I am afraid the Datumanong case detracts nothing from the validity of Senator Lim’s position that it is the commanders who are to blame for the foot soldiers’ reprehensible conduct in Iloilo.

       In Datumamong, an appointive public official sought to have then Justice Secretary Simeon A. Datumanong cited by the Supreme Court in contempt of court for issuing on 05 October 2001 a Memorandum Order where the official was “ordered DROPPED/DISMISSED from the service effective” upon the addressee’s receipt of the order.

       The appointive public official had previously been charged at the Office of the Ombudsman with dishonesty, falsification of official documents, grave misconduct, gross neglect of duty, violation of office rules and regulations, and conduct prejudicial to the service.  On 28 March 1994, he was found guilty and was ordered dismissed from the service. 

       The appointive public official, after the usual motion for reconsideration was denied, went to the courts for relief.  On 02 March 2000, the Court of Appeals affirmed the decision of the Ombudsman.  As expected, the appointive public official raised his case to the Supreme Court.  It was at this point that Datumanong issued his memorandum order.

       “Inasmuch as,” said Datumanong “the Order dismissing you from the service is not subject of any injunction or restraining order from the Supreme Court, the same is immediately executory.”  As earlier stated, Datumanong thereupon dismissed the appointive public official from the service.

       The issue raised by the appointive public official was whether such memorandum constituted contempt of the Supreme Court.  Easily, the question was answered in the negative. For several reasons.First, unlike in the recent removals, such as those of Governor Tupaz and Mayor Peewee Trinidad, “it was only after the Court of Appeals rendered its decision on March 2, 2000 that Secretary Datumanong issued the memorandum and after ascertaining that no injunction or restraining order was issued by the [Supreme] Court.”

       Second, on 28 March 2005, the Supreme Court decided the appeal against the appointive public official, thus confirming the correctness of the Order of the Ombudsman that Datumanong implemented.

       And third, on 15 September 2003, another Simeon, namely then Ombudsman Simeon V. Marcelo signed Administrative Order No. 17 aligning Section 7. Rule III of the Office of the Ombudsman with Section 47 of the Uniform Rules on Administrative Cases in the Civil Service.  Henceforth, an appeal from the decision of the Ombudsman “shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal.”

       It was this last reason, I am certain, that moved my friend Jack to goad me into revisiting my statements on the immediacy of the effect of a decision of the Ombudsman.  In response, I call attention to certain aspects of Datumaong.

       First, the timing of the removal.  The court noted that the memorandum order of Datumanong was not “contumacious conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice….If it were otherwise, petitioner should have been dismissed immediately after the Adjudication Bureau of the Office of the Ombudsman rendered its decision…”  What does that say of the recent administration’s rush to remove to local officials before they could get a temporary restraining order from the courts?

       Second, the amendment written by then Ombudsman Sonny Marcelo into the Rules of the Office of the Ombudsman clearly had the intention of aligning the rules of his office with the rules pertaining to cases brought under the Civil Service law.  Indeed, the alignment is justified for the same rules ought to apply on cases that are in pari materia.

       Local elective officials, however, are not of the same genre as appointive officials.  Local elective officials, by definition, are chosen directly by the people themselves in the exercise of their constitutional right of suffrage.  Appointive officials are chosen by an appointing power exercising merely delegated authority.

       And, for that reason, Section 60 of the Local Government Code clearly states that “an elective local official may be removed from office …by order of the proper court.”  Adding fodder to Senator Lim’s cannon, the Local Government Code was enacted after the Ombudsman Act.  Consequently, aside from being a special law, its later enactment suggests its amendment of prior contrary rules on the same specific subject.

       In gratitude to Jack, however, I must revise my restatement of the rule on the effectivity of the Ombudsman’s decision removing a public official from office.  

       If the official is appointive, then the respondent adjudged guilty by the Ombudsman may, in the proper cases, be removed immediately, without prejudice to his right of appeal to the courts.  But, if he or she is an elective local official, as those defended by Senator Lim, he must be given his time to appeal to the courts and, if he does, only the courts may order his or her removal.  The Marcelo amendment of the Rules of the Office of the Ombudsman, which is subordinate legislation,  cannot be construed to amend an express rule issued by the highest lawmaking body of the land.