(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.
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.
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.
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
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.”
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?
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.
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.