(Article published in the Nov. 22, 2006 issue of Manila Standard Today)
As case law, the Supreme Courtís decision in Manuel Baviera v. Rolando B.Zuleta, et al., G.R. NO. 169098, promulgated 12 October 2006, simply hews to prevailing jurisprudence. On the procedural issue, it reiterated the rule, following what is by now a long line of cases, that the remedy to challenge the resolution of the Ombudsman at the conclusion of a preliminary investigation was to file a petition for certiorari in the Supreme Court under Rule 65 of the Rules of Court, not in the Court of Appeals. On the merits of the case, the Supreme Court, after noting the failure of the petitioner to establish before the Ombudsman the existence of probable cause for violation of Sections 3(a), (e) and (j) of R.A. No. 3019, followed the established rule that in the absence of a clear case of abuse of discretion, the Supreme Court will not interfere with the exercise of the Ombudsmanís discretion, who, based on his own findings and deliberate consideration of the case, either dismisses a complaint or proceeds with it.
for those working in the government who, for doing that is right,
nevertheless face the constant threat of being haled, in fact of being
hauled, to court hanging over their heads like the sword of Damocles, Baviera v. Zulueta is an assurance, at least during the tenure of
Ombudsman Ma. Merceditas N. Gutierrez, of a fair hearing and favorable
outcome. After all, though it
was Hon. Gutierrez who was the winner in that case, her travails exemplify
how easy it is for those unhappy with governmental action to personally
harass and put in jeopardy the future of career civil servants.
Four years after graduating from the Ateneo Law School in 1972, Merceditas Gutierrez joined the government and logged about 27 years in the service by the time Baviera began. Most of those years were at the Department of Justice where, starting 1983, she went up the ladder, from State Counsel, to Assistant Chief State Counsel, and eventually Undersecretary. The decision she was taken to task for in Baviera was made while she was Acting Secretary, when then Secretary Simeon Datumanong was abroad attending a conference in Vienna.
But first, the antecedents. Petitioner was senior officer of a multinational bank who, for reasons too complicated and not relevant to the burden of this item, had a grievance against his employer. To seek redress, he filed complaints with the Bangko Sentral ng Pilipinas, the Securities and Exchange Commission, the Anti-Money Laundering Council, the National Labor Relations Commission, the Department of Justice, and the Bureau of Internal Revenue.
Claiming that the presence and availability of some of the officers of his employer, some of whom were foreigners, is needed to resolve his complaints, he requested the Department of Justice to issue against some named officers a Hold Departure Order (HDO). On 26 September 2003, a Friday, Secretary Datumanong issued HDO No. 0193 which was served on the same day on the Bureau of Immigration. The Bureau of Immigration immediately implemented the HDO with a corresponding order.
The following Sunday, one of the officers named in the HDO went to the Ninoy Aquino International Airport to leave the country for an official conference in Singapore. The bank officer was not permitted to leave on that day. However, he was allowed to leave the next day at 8:15 a.m. via Singapore Airlines SQ-71 just in time for the first day of the conference. On the very same day that the conference ended on 02 October 2003, the said officer came back to the Philippines.
The bank officer was permitted by the Bureau of Immigration to leave because Merceditas Gutierrez, then Acting Secretary of Justice, allowed his departure. Incensed, the petitioner filed against Gutierrez a complaint-affidavit with the Office of the Ombudsman claiming that she violated the Anti-Graft law (R.A. 3019), particularly Sec. 3(a), (e), and (j).
Naturally, Gutierrez submitted a justification of her questioned decision, citing Constitution, law, and regulation. Essentially, she claimed correctly that the Constitution guarantees to all residents, regardless of nationality, the right to travel. Such right cannot be impaired except in the interest of national security, public safety, or public health, as may be permitted by law (Sec. 6, Art. III, Const.).
In a judgment call she had to make, she considered that the bank official meant to leave only for a specific purpose and for a certain period and not for transfer of station. She took into account the official nature of the limited travel intended as well as the obvious absence of intent on the part of the officer to frustrate the results of the investigations being conducted by the various agencies on account of petitionerís complaints. Finally, she also weighed the positive impact that allowing the limited travel would have on foreign investors, assuring them of the rule of law and respect for human rights in the Philippines. In short, she found no legal justification for impairing the bank officerís right to travel.
As previously stated, her judgment call was vindicated by the return of the bank officer on the day that the conference, which was the sole reason for his travel, ended in Singapore. Subsequently, on 17 October 2003, Secretary Datumanong, upon his return and on motion of the persons subject of the HDO, lifted the hold departure order and then ordered the Bureau of Immigration to delete the names of the officials of the bank mentioned therein.
At the Office of the Ombudsman, almost nine months after the questioned decision of Gutierrez, the Ombudsman dismissed the complaint of the petitioner. Motion for reconsideration was denied and petitioner went up to the Court of Appeals.
The rest was predictable. The Court of Appeals dismissed the petition for being the wrong remedy, wrong in the sense that the petition should have been filed with the Supreme Court, not the Court of Appeals. As previously stated, the Supreme Court affirmed the Court of Appeals. What was not a matter of course was that the costs of the suit were adjudged against the petitioner.
It is probably too early to tell that this case signals the Supreme Courtís resolve to, henceforth, provide the civil servants some form of protection against undeserved inconvenience from parties disgruntling against their actuations made in accordance with law and in good faith. After all, a single swallow does not a spring make.
Nevertheless, I am willing to bet that with her vindication by no less than the Supreme Court, Ombudsman Gutierrez will, recalling her experience in this case, look kindly on civil servants haplessly and helplessly dragged to her office for doing what, in conscience and in law, is right and just.