Sunday, April 15, 2007 CA bars delay in penalty suspensions
PENALTY suspensions issued by the Office of the Ombudsman are now deemed final and executory even if under appeal.
A Court of Appeals (CA) resolution, promulgated last March 29, 2007, upheld the validity of Administrative Order (AO) 17 issued last Sept. 15, 2003 by then tanodbayan Simeon Marcelo, on the immediate executory nature of anti-graft penalties.
The appellate court’s ruling was among the subjects discussed in the Mandatory Continuing Legal Education (MCLE) seminar the University of San Carlos College of Law held last Thursday and Friday.
“A public official, once served the penalty, will be deemed placed under suspension even if an appeal is timely filed. Only when the appeal results in the lifting of the suspension can he or she be reinstated,” said Acting Deputy Ombudsman Virginia Santiago, who headed the discussion.
“If this happens, the official concerned will be reimbursed for the income lost, as if he or she had been placed under preventive suspension,” she added.
The resolution, penned by Associate Justice Stephen Cruz for the CA Special 19th division based in Cebu City, also acknowledged that even the High Tribunal recognizes AO 17’s validity.
This, when the Supreme Court (SC) resolved a contempt petition against former justice secretary Simeon Datumanong last Aug. 4, 2006.
No vested right in office
The High Court said that AO 17 and its effect on the anti-graft office’s rules and procedure do not violate the rights of the person holding office.
“Besides, there is no such thing as a vested right in an office, or even an absolute right to hold office. Exempting constitutional offices that provide for special immunity as regards salary and tenure, no one can be said to have any vested rights in an office,” the SC ruling read.
Associate Justice Cruz’s ruling stemmed from the appeal filed by Dr. Doloreich Dumaluan, mayor of Panglao town in Bohol, who was suspended for six months by the anti-graft office.
He was found to have once charged gasoline expenditures of his private vehicles to the government.
In a March 3, 2006 order, Tanodbayan Merceditas Gutierrez prescribed the suspension, which Interior and Local Government Secretary Ronaldo Puno ordered implemented last Jan. 21, 2007.
Dumaluan contested the order by filing a petition for certiorari and prohibition before the CA.
The petition was raffled off to the Special 19th division composed of Associate Justices Isaias Dicdican, Priscilla Baltazar-Padilla and Cruz, who granted an ancillary petition for the issuance of a temporary restraining order last Feb. 1, 2007. Premature, he said.
According to Dumaluan’s petition, his suspension was premature because Sec. 7, Rule III of the Office of the Ombudsman’s Rules of Procedure, as appended to the Ombudsman Act of 1989, gives him 10 days from receipt to file an appeal before the order becomes executory.
Since the order was served only on Jan. 24, he had until Feb. 3 to file an appeal.
And even if the order cited an authority, in this case AO 17, Dumaluan argued that the order contravened the Ombudsman Act and is therefore unconstitutional.
Both the anti-graft office and the private complainants, Municipal Councilors Telesporo Mejos, Dennis Hora and Cereno Hormachuelos, together with the municipal budget officer and the treasurer, contested the petition.
They said the order was already served, executed and implemented as of Jan. 23, 2007, making a restraining order moot and academic.
Likewise, they said, Dumaluan’s citations are outdated.
“Petitioner’s prayer for the issuance of a writ of preliminary injunction is denied for lack of merit. It is without doubt that the Ombudsman has the authority and power to discipline local elective officials,” Associate Justice Cruz said.
Citing the April 5, 2000 case of Lapid vs. CA, the CA said the even earlier Supreme Court ruling in Fabian vs. Desierto, commonly cited in appeals against anti-graft orders, only invalidated that portion of the Ombudsman Act that says appeals against anti-graft rulings should be filed directly before the Supreme Court.
It had no effect on the finality or non-finality of the anti-graft office’s punitive suspension orders.
The Lapid ruling did establish that there was no general legal principle mandating that all decisions of quasi-judicial bodies are immediately executory.
But the more recent AO 17, which has the effect of a law, bolstered by the Supreme Court’s ruling in Datumanong, fills the gap.
“A fortiori, any further discussion on other matters raised in the pleading and of other pleading motions, insofar as pertinent to the issue of the propriety of the issuance of a writ of preliminary injunction is concerned, has become unnecessary,” Associate Justice Cruz added. (KNR)
