Malilong: Not yet final but already executory

THE criminal and administrative charges that Cebu 3rd District Rep. Gwendolyn Garcia recently filed against Gov. Hilario Davide III, Vice Gov. Agnes Magpale and four subordinate officials should hopefully provide more clarity to the “not yet final but already executory” rule of the Office of the Ombudsman.

This is what the rule says: “An appeal shall not stop the decision from being executory.” And a few sentences later, “(a) decision of the Office of the Ombudsman shall be executed as a matter of course.” I am quoting Section 7 of Rule III of the Rules of Procedure of the Ombudsman.

From the reports that I have read about Garcia’s complaint, a similar thing happened in the cases of Provincial Health Officer Cristina Giango and Provincial Budget Officer Emme Gingoyon who, along with Garcia and other officials, were ordered dismissed by the Ombudsman for their role in the bidding of the controversial Cebu International Convention Center construction project.

Giango and Gingoyon appealed. While this was pending, Davide appointed their replacements. The Court of Appeals later modified the Ombudsman decision, finding the dismissed employees guilty but only of simple misconduct and punishing them with three months suspension without pay instead of dismissal. Giango was re-employed but was reassigned to another office but Gingoyon was not, according to Garcia.

I am not sure if she wants Davide and Magpale punished for implementing the dismissal or for refusing to reinstate the budget and the health officers. This is crucial. If it is the former, Davide could plead that he had no choice but to implement the dismissal because the Rules not only provide that the Ombudsman should ensure that its decision shall be strictly enforced and properly implemented but also punish any official who refuses to implement the decision.

“The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine or censure shall be a ground for disciplinary action against said officer,” says Section 7 of the Rules.

The failure to reinstate may be an entirely different matter, however.

I wonder why Magpale was charged and the Provincial Board members who ratified the appointment of the replacements were not. The vice governor presides over the session and does not vote unless she has to break a tie. She therefore cannot be guiltier than the Board members unless she had some other participation in the appointments.

Some quarters are quick to see politics behind the charges because Garcia and Magpale are running for governor in the May 13 elections. I do not think so. I’m sure she is aware of the potential damage it could bring to her candidacy in resurrecting the Cebu International Convention Center issue especially at this point. I would like to believe she filed the cases because she is convinced that her people were wronged and that it is her duty to champion their cause.

Whatever her motives, Garcia’s charges are welcome because they could clear the confusion on the execution of a judgment that is not yet final. For this reason, I hope that the cases will ultimately reach the Supreme Court.

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