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BY: _ _ __

REPUBLIC OF THE PHILIPPINES


SUPREME COURT 2DIS MAR 25 PM 5: 08
MANILA

CONCHITA CARPIO MORALES, 9171c ~(.. \.) -2:J


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iri her capacity as the Ombudsman, G.R. No. - - - - - -
Petitioner, For: Certiorari and
Prohibition, with
- versus - Prayer for Temporary
Restraining Order
CO.URT OF APPEALS (SIXTH and/or Writ of
DIVISION) and JEJOMAR Preliminary Injunction
ERWIN S. BINAY, JR.,
Respond(jnts.
x---------------------------------------------x

PETITION FOR CERTIORARI


AND PROHIBITION
.
[With Urgent Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction] '

Petitioner CONCHITA CARPIO MORALES, in her capacity as the


Ombudsman, and by counsel, the Office of the Solicitor General, unto this
Honorable Court, respectfully state:

PREFATORY

The Office of the Ombudsman was conceptualized during the


deliberations of the Constitutional Commission in 1986 "in 'answer to the
crying need of our people for an honest and responsive govemment." 1 To
become an effective "guardian of"the guardians" T a public office tasked to
investigate and prosecute public officials and empioyees - the Office of the
Ombudsman was given a wide array of powei:s, functions and duties, made
efficacious by its constitutionally-protected independence and autonomy,
'
including the following:

(1) Investigate on its own, or on complaint by !any person, any act or


omission of any public official, employee, 6ffice or agency, when
such act br omission appears to be illegal, unjust, improper, or
inefficient.
1
Sponsorship Remarks of Commissioner Jose Nolledo, Record of the Deliberation of the l 986
Constitutional Commission (R.C.C.) No. 40, 26 July 1986, p. 267 .

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PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 2of31
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(2) Direct the officer concerned to take appropriate action against a


public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.

(3) Direct the officer concerned, in any appropriate. case, and subject to
such limitations as may be provided by law, to furnish it with copies
of documents relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on Audit
for appropriate action.

(~) Request any government agency for assistance and information


necessary in the discharge of its responsibilities, and to examine, if
necessary, pertinent records and documents. '

(5) Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law. 2

This Petition for certiorari and prohibition seeks to protect the


institutional independence of the Office of the Ombudsman in the discharge
of its mandate from the unconstitutional interference of respondent Court of
Appeals (Sixth Division) (hereafter, Court of Appeals). This Petition is
triggered by respondent Court of Appeals' unwarranted intervention in what
should have otherwise been a regular administrative proceeding before the
Office of the Ombudsman.

The intervention of the Court of App~als has resulted in chaos and


total confusion of the people of Makati and those transacting official
business with the city government.

NATURE OF THE PETITION


'

1. This is a Petition for certiorari3 and prohibitidn 4 filed under


Rule 65 of the Rules of Court, with urgent pr,ayer for the issuance of a
temporary restraining order (TRO) and/or writ df preliminary injunction. It
assails respondent Court of Appeals' grave abuse of discretion, amounting
to lack or excess of jurisdiction, in issuing the /;Resolution dated 16 March.
2015 (First Resolution) in CA-G.R. SP. No. 13:9453, and Resolution dated
20 March 2015 (Second Resolution) in CA-G.R.)SP. No. 139504.

2
Article XI, Section 13, Paragraphs 1,3,4,5 & 8, Constitution.'
3
Pursuant to Section l, Rule 65, Rules of Court.
4
Pursuant to Section 2, Rule 65, Rules of Court.
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PETITION
Office ofthe Ombudsman vs. Court ofAppeals, et al.
Page 3of31

1.1. Respondent Court of Appeals issued the First


Resolution in CA-G.R. SP. No. 139453, "Jejomar Erwin S.
Binay, Jr. v. Hon. Conchita Carpio-Morales et al., " for
Certiorari with Prayer for Temporary Rstraining Order and
Writ of Preliminary Injunction, the dispositive portion of which I

reads:
...
In view of the seriousness of the issues raised in the
Petition for Certiorari and the possible repercussions on the
electorate who will unquestionably be affected by
suspension of their elective official, the Court resolves to
grant petitioner's prayer for a Temporary Restraining
Order for a period of sixty (60) days from notice hereof,
conditioned upon the posting by petitioner of a bond in
the amount of FIVE HUNDRED THOUSAND PESOS
(PS00,000.00).

Meanwhile, let tQ.e hearing of the application for


issuance of a writ of preliminary injunction be set on March
30, 2015 and March 31, 2015 all at 2:00 o'clock on (sic)
the afternoon, and the Respondents, Hon. Conchita Carpio-
Morales, in her capacity as the Ombudsman, and the
Department of Interior and Local Government, are hereby
ORDERED to file their Comment on the Petiti9n for
Certiorari filed by herein petitioner within an inextendible
period of ten ( 10) days from receipt of a copy hereof.

SO ORDERED. 5

A certified true copy of the First Resolution is attached


hereto as Annex "A."

1.2. Respondent Court of Appeals later issued the


Second Resolution in CA-G.R. SP. No: 139504, "Jejomar
Erwin S. Binay, Jr. v. Manuel A. Roxas, II et al.," for contempt,
directing petitioner to comment on the Amended and
Supplemental Petition for Contempt (Petition for Contempt)
filed by respondent Binay. Among other~ things, the Petition
for Contempt alleges that herein petitioher defied the First
Resolution of respondent Court of
:/Appeals when she
manifested that the said First Resolutiort was rendered moot
because such First Resolution was issued hnly after petitioner's
Joint Order dated 10 March 2015 6 (Suspension Order) in the
adjudication proceedings on the case against Binay et al. had
already been served and implemented.

5
Emphasis in the original; citations omitted. .
6
A copy of the Suspension Order is attached hereto as Annex "C": 1
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PETITION
Office of the Ombudsman vs. Court of Appeals, et .a/.
Page 4of31
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A certified true copy of the Second Resolution is attached


hereto as Annex "B." A certified true copy f petitioner's
Suspension Order is attached hereto as Annex "C."

2. In view of the extreme urgency of the matters involved in this


case and the grave and irreparable injury that may be suffered both by
petitioner and the institution she represents - the Office of the Ombudsman,
as well as the chaos and total confusion of the people of Makati and those
transacting official business with the city government, petitioner prays,
before the matter can be heard on notice, for the IMMEDIATE issuance of a
TRO and/or Writ of Preliminary Injunction enjoining respondent Court of
Appeals from conducting further proceedings in the cases from which the
assailed Resolutions emanated in order to allow this Honorable Court
sufficient time to resolve the constitutional and legal issues proffered hereip.
I

3. The First Resolution and Second Resolution being assailed


(collectively referred to as the '~Questioned Resolutions") of respondent
Court of Appeals are tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction because they were issued in violation of the
constitutionally-guaranteed independence of the Office of the Ombudsman, 7
the nature of the position of the Ombudsman, and the express provision of
Section 14 of Republic Act (R.A.) No. 6770 or the Ombudsman Act of 1989,
reading:

Section 14. Restrictions. - No writ of injunction shall be issued


by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence that
the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.

No court shall hear any appeal o; application for remedy


against the decision or findings of the .Ombudsman, except the
Supreme Court, on pure question of law. [emphasis and underscoring
supplied] '

4. Respondent Court of Appeals having: committed grave abuse of


discretion, defined as "the arbitrary or despotic'/ exercise of power due to
passion, prejudice or personal hostility; or the ;:whimsical, arbitrary, or a
capricious exercise of power that amounts to ~n evasion or a refusal to
perform a positive duty enjoined by law or to acj at all in contemplation of
law," 8 petitioner submits that certiorari lies. ii
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7
Section 5, Article XI, 1987 Constitution.
8
lagua vs. Court of Appeals, G.R. No. 173390. 27 June 2012.
11!1 Ill

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PETITION
Office of the Ombudsman vs. Court ofAppeals. et al.
Page5of31

5. On the other hand, there being a need to prevent the unlawful


and oppressive exercise of authority and to provide for a fair and orderly
administration of justice, " 9 petitioner submits that prohibition lies.

6. Petitioner has no appeal or any other plain, speedy, and


adequate remedy in the ordinary course of law except via this Petition.

7. While as a rule, certiorari will not lie unless the lower court
has, through a motion for reconsideration, been given a cha~ce to correct its
errors, this rule admits of certain exceptions, such as in this case where (a)
10
the Questioned Resolutions are contrary to the Constitution, and the law,
(b) there is extreme urgency for relief and any further delay would
irreparably prejudice. petitioner and the public as well, 11 ( c) the issues
involved are, as in this case, pure questions of law, 12 (d) the error is patent
or the disputed order is void, 1 or (e) where public interest is involved. 14 All
these exceptions are present in this case.

TIMELINESS OF THE PETITION

8. Petitioner received a copy of the First Resolution on 16 March


2015, while it received a copy of the Second Resolution on 20 March 2015.

9. Pursuant to Section 4, Rule 65 of the Rules o~ Court, petitioner


has sixty (60) days from notice of the issuances being assailed to file a
petition for certiorari and prohibition. Hence, the instaht Petition is filed
well within the reglementary period .
...

THE PARTIES

10. Petitioner CONCHITA CARPIO MORALES is .the


incumbent Ombudsman. The Office of the Ombudsman is an independent
. I

constitutional body created under Article XI, '.Section 5 of the 1987

9
Vergara vs. Rugue, G.R. No. L-32984, 26 August 1977. ii
10
Pefianco vs. Moral, G. R. No. 132248, 19 January 2000; Quiamh'ao vs. NLRC, G.R. No. 91935, 04
March 1996; and Alfante vs. NLRC, G.R. No. I 22655, I 5 December I 997.
11
Siok Ping Tang vs. Subic Bay Distribution, G.R. No. 162575, :PS December 2010; Domdom vs.
Sandiganbayan, G.R. No. 182382-83. 24 February 2010; Diamond Bifilders Conglomeration vs. Country
Bankers Insurance Corporation, G.R. No. 171820, 13 December 2007; Star Paper Corporation vs.
Espiritu, G.R. No. 154006, 02 November 2006; Aguilar vs. Manila Banking Corporation, G.R. No.
15791 I, 19 September 2006; Romy's Freight Service vs. Castro, G.R. No. 141637: 08 June 2006.
12
Spuses Sombilon vs. Garay, G.R. No. 179914, 16 June 2014. ;
13
14
National Housing Authority vs. Court of Appeals, G.R. No. 144275, 05 July 200 I.
HPS Software and Communication Corporation vs. Philippine long :Distance Telephone Company, G. R.
Nos. 170217 & 170694, 10 December2012.

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PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 6of31

Constitution. Being sued in her official capacit:y as Ombudsman, petitioner


is exempt from payment of filing fees and other court fees, pursuant to
Section 21, Rule 141 of the Rules of Court. Petitioner may be served with
pleadings, orders, decisions and other court processes at her office at Agham
Road, Diliman, Quezon City, and at the office of her counsel, Office of the
Solicitor General, at Amorsolo Street, Legaspi Village, Makati City.

11. Respondent COURT OF APPEALS is a statutory court


created under Chapter I of Batas Pambansa Bilang 129. It issued the
Questioned Resolutions in relation to the pending cases docketed as CA-
G.R. SP. No. 139453 and CA-G.R. SP. No, 139504. It may be served with
summons, pleadings, orders, decisions and other court processes at the Court
of Appeals, Maria Orosa Street, Ermita, Manila.

12. Respondent JEJOMAR ERWIN S. BINAY, JR. is the duly-


elected Mayor of Makati City. By virtue of the Suspension Order issued by
petitioner, he was preventively suspended for ~ix (6) months in connection
with the pending complaints against him et al. for Grave Misconduct,
Serious Dishonesty and Conduct Prejudicial to the Best Interest of the
Service. He is the petitioner in t}Je Petitions a quo. He may be served with
summons, pleadings, orders, decisions and other court processes at his
residence at 8514 Caong Street, Brgy. San Antonio, Makati City or through
his. counsel on record Atty. Claro F. Certeza of Subido Pagente Certeza
Mendoza & Binay Law Offices, 5/F Prince Building, 11 7 Rada Street,
Legaspi Village, 1129 Makati City.

STATEMENT OF FACTS AND


ANTECEDENT PROCEEDINGS

13. On 10 March 2015, acting on the pray~r of the Special Panel of


Investigators of the Office of the Ombudsman which conducted a fact-
finding investigation or case build-up following the filing in July 2014 of a
complaint against respondent Binay et al. for Plunder by Renato Bondal and
Nicolas Enciso VI, and a related complaint which was thereafter filed,
petitioner issued the Suspension Order placing respondent Binay, together
with twenty (20) other public officers and ~mployees of the City
Government of Makati, under preventive suspension until the adjudication
of the administrative cases against them is terminated, but for not more than
six (6) months, without pay.

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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 7 o/31

14. Respondent Binay is one of the respondents in four


administrative cases 15 for Grave Misconduct, Serious Dishonesty and
Conduct Prejudicial to the Best of the Service pending before the Office of
the Ombudsman. The cases involve serious allegations of, among others,
corruption or irregularities in the procurement of services, and the
disbursements of public funds for, the construction of the Makati City Hall
Parking Building (Parking Building). The allegations are detailed in the
Complaint dated 03 March 2015 filed by the SpeciaLPanel of Investigators.

A copy of the Complaint dated 03 March 2015 and its annexes are
attached hereto as Annex "D" and "Annex D-1", respectively.

15. Respondent Binay is also one of the respondents in four


criminal complaints before the Office of the Ombudsman for: ( 1) violation
of Section 3(e) of R.A. No. 3019 and Malversation of Public Funds
involving the Design, Architectural and Engineering Services of MANA
Architecture & Design Co. (MANA) for the construction of the Parking
Building; 16 (2) violation of Section 3(e) of R.A. No. 3019 and two counts of
Falsification of Public Documents under Article 171 of the Revised Penal
Code for the Phase III of the construction of the Parking Building by
Hilmarc's Construction Corporation (Hilmarc's); 17. (3) violation of Sec~ion
3(e) ofR.A. No. 3019 and two counts of Falsification of Public Documents
for the Phase IV of the construction of the Parking Building by Hilmarc's; 18
and (4) violation of Section 3(e) of R.A. No. 3019 and two counts of
Falsification of Public Documents for the Phase V of the construction of the
Parking Building by Hilmarc's. 19

16. On 11 March 2015, the Office of the Ombudsman personally


served a copy of the Suspension Order by delivering it at the Office o( the
City Mayor. A staff of respondent Binay, Maricon Ausan, received the
Suspension Order at 10:50 a.m. on 11 March 2015. A copy of the personal
delivery receipt dated 11 March 2015 acknowledged and signed by Ausan is
attached hereto as Annex "E." Therefore, as of 11 March 2015, respondent
Binay had received the. Suspension Order, hence, was preventively
suspended on even date.

17. Further, on 16 March 2015, at aroun4 8:30 a.m., in compliance


with the directive of herein petitioner for it to implement the Suspension
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15
Special Panel of Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0058), Special Panel of
Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0061 )i Special Panel of Investigators vs.
Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0062), and Special Panel bf Investigators vs. Jejomar Erwin S.
Binay Jr. (OMB-C-A-15-0063). .i
Special Panel of lnvf!;stigators v. Jejomar Erwin S. Binay Jr. (OMB~i:-C-15-0059).
16

17
Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-C-C-15-0062).
Special Panel ofInvestigators v. Jejomar Erwin S. Binay Jr. (QMB~C-C-15-0063).
18

Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-~-C-15-0064).


19

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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
PageBo/31

Order within five (5) days from receipt (a copy of the Ombudsman's
Indorsement to the DILG is attached hereto as Annex "F"), the DILG,
though NCR Regional Director Renato L. Brion, caused the implementation
of the Suspension Order. A copy of the Suspension Order was posted on the
wall of the Makati City Hall, after diligent efforts to have it personally
received by respondent Binay failed, given that all the gates of the Makati
City Hall were closed and sealed that even some City emp'loyees could not
enter the building.

18. The Suspension Order having been served on respondent Binay


and duly implemented by the DILG, Director Brion administered the oath of
office of Vice Mayor Romulo V. Pefia Jr. as Acting Mayor at around 9:47
a.m. on 16 March 2015. All these developments were duly reported by
Director Brion to herein petitioner by a Memorandum dated 16 March 20,15
in compliance with the directive. A. copy of Director Brion's Compliance
Report is attached hereto as Annex "G."

19. Following the issuance of the Suspension Order, respondent


Binay filed a Petition for Certiorari with respondent Court of Appeals, with
an application for TRO, to assail the said Suspension Order. Petitioner,
however, received a copy of the Petition for ~ertiorari only on 19 March
2015.

20. Hours following the assumption as .Acting Mayor of Vice


Mayor Pefia, or around noon of 16 March 2015, respondent Court of
Appeals issued the First Resolution granting respondent Binay's prayer for a
TRO, on which same day copy thereof was served on petitioner only at 1:20
p.m.

21. The following day or on 17 March 2015, herein petitioner filed


a Manifestation of even date (Manifestation) with respondent Court of
Appeals, manifesting that the First Resolution was silent on what act
respondent Court of Appeals was restraining, and that the Office of the
Ombudsman had not yet received a copy of the Court of Appeals petition of
herein respondent Binay. Petitioner stated in the! same Manifestation that
considering the prior service and implementation bf the Suspension Order,
"there is ... no more act to be restrained by the t~mporary restraining order as
it had become moot and academic." A copy of the)Manifestation is attached
hereto as Annex "H." Parenthetically, to date, herein petitioner has not
received any TRO issued by respondent Court of Appeals indicating that
herein respondent Binay had complied with the condition for its issuance.

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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 9 o/31

22. Respondent Binay thereafter filed before respondent Court of


Appeals a Petition for Contempt against DILG Secretary Manuel Roxas II,
Director Brion, Philippine National Poiice (PNP) officials and Acting Mayor
Pefia. The core argument of respondent Binay's Petition for Contempt
against the immediately named respondents was that they deliberately
refused to obey respondent Court of Appeals' First Resolution, thereby
allegedly impeding, obstructing or degrading the administration of justice.

23. After the filing of herein petitioner's Manifestation, herein


respondent Binay filed before the Court of Appeals an Amended and
Supplemental Petition for Contempt, 20 impleading herein petitioner (along
with Secretary of Justice Leila M. De Lima) as an additional respondent,
anchored on the opinion of herein petitioner contained in her Manifestation
that the restraining order mentioned in respondent Court of Appeals First
Resolution was moot. A copy of the Amended and Supplemental Petition for
Contempt is attached hereto as Annex "I."

24. On 20 March 2015, respondent Court of ~ppeals issued and


petitioner received a copy of the Second Resolution directing her to
Comment on the Amended and Supplementary Petition for Contempt filed
by respondent Binay. Herein petitioner received a copy of the Amended and
Supplemental Petition for Contempt only on 23 March 2015.

25. To date, the people of Makati City, as well as those transacting


official business with the City government and the general public are in total
confusion as a result of the issuance of the First Resolution by respondent
Court of Appeals.

26. The therein petitioner insists that a "TRO" having been issued
by respondent Court of Appeals, herein petitioner committed contempt of
court when she submitted her Manifestation that the TRO was moot.
Petitioner submits that respondent Binay conveniently ignores and glosses
over the documented facts that when respondent Court of Appeals First
Resolution was issued, the Suspension Order had priorly, been served on him
on March 11, 2015 and was fully implemented otj 16 March 2015 at 8:30 in
the morning. This much is evident in Binay's A{nended and Supplemental
Petition for Contempt, in which he glaringly omits to mention the
aforestated documented facts.

27. Respondent Court of Appeals' Secohd Resolution orders herein


petitioner "to file Comment on the Petition/Atj:iended and . Supplemental
Petition for Contempt . . . within an inextendib'1e period of three (3) days
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A copy of the Amended and Supplemental Petition for Contempt isattached hereto as Annex "I."
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PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page!Oo/31

from receipt [t]hereof." Such order, under the unassailable documented


facts of the case, undermines her status as an impeachable officer and
compromises the independence of the Office of the Ombudsman, the
independent body that she heads, and which derives its mandate from no less
than the Constitution.

28. Hence, the filing of the instant Petition for the Honorable Court
to intervene in the patently unlawful acts being committed by respondents.

ISSUES
I

I. WHETHER OR NOT RESPONDENT COURT OF


APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT ISSUED THE FIRST
QUESTIONED RESOLUTION CONSIDERING THE
CONSTITUTIONALLY GUARANTEED
INDEPENDENCE OF THE OFFICE OF THE
OMBUDSMAN AND SECTION 14 OF R.A. NO. 6770
WHICH PROSCRIBES THE ISSUANCE OF ANY
INJUNCTIVE WRIT THAT WOULD DELAY THE
INVESTIGATION BEING CONDUCTED BY THE
OMBUDSMAN

II. WHETHER OR NOT HEREIN PETITIONER, AS AN


IMPEACHABLE OFFICIAL, CAN, UNDER THE
UNASSAILABLE DOCUMENTED FACTS OF THE
CASE, BE SUBJECT OF CONTEMPT
PROCEEDINGS BY RESPONDENT COURT OF
APPEALS IN THE DISCHARGE OF HER
FUNCTIONS AND DUTIES AS THE PRESENT
OMBUDSMAN.

GROUNDS FOR THE PETITION

I. THE OFFICE OF THE ;\OMBUDSMAN'S


INDEPENDENCE WAS GRAVEL't UNDERMINED
BY RESPONDENT COURT OF APPEALS WHEN IT
ISSUED THE FIRST RESOLUTION AGAINST THE
PREVENTIVE SUSPENSION OF RESPONDENT
BINAY .

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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page I I of 31
____________________________________________________________ ... _______ _

II. THE SECOND RESOLUTION IS ILLEGAL AND


IMPROPER FOR '"HAVING BEEN ISSUED
AGAINST AN IMPEACHABLE. OFFICER, WHO
MAY NOT, UNDER THE UNASSAILABLE
. I

DOCUMENTED FACTS, BE SUBJECTED TO


CONTEMPT PROCEEDINGS.

III. THE QUESTIONED RESOLUTIONS ISSUED BY


RESPONDENT COURT OF APPEALS WILL
CREATE A DANGEROUS PRECEDENT FOR
OTHER PUBLIC OFFICIALS AND EMPLOYEES
UNDER INVESTIGATION OR PROSECUTION TO
THWART OR DELAY SUCH INVESTIGATION OR
PROSECUTION

IV. THE FIRST RESOLUTION WAS ISSUED WITH


GRAVE ABUSE OF DISCRETION, AMOUNTING
TO LACK OR EXCESS OF JURISDICTION,
CONSIDERING THAT IT IS TOTALLY BEREFT OF
LEGAL BASIS.

A. RESPONDENT BINAY HAS NO CLAIM


OF RIGHT IN ESSE TO HIS PUBLIC
POSITION AS MAYOR OF MAKATI CITY
THAT CAN JUSTIFY HIS HOLDING ON
TO THE POSITION OF A CITY MAYOR

B. THE DETERMINATION BY THE OFFICE


OF THE OMBUDSMAN THAT
RESPONDENT BINA Y SHOULD BE
PREVENTIVELY SUSPENDED WAS A
LAWFUL EXERCISE OF DISCRETION
THAT CANNOT BE THE SUBJECT OF
ANY INJUNCTIVE WRIT.;

i
GROUNDS IN SUPPORT OF THE APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION I

I. PETITIONER HAS A CLEAR :LEGAL RIGHT


ENTITLED TO PROTECTION BY WAY OF AN
INJUNCTIVE WRIT;

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PETITION
Office of the Ombudsman vs. Court qfAppeals, et al.
Page 12of31
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II. PETITIONER STANDS TO SUFFER GRAVE AND


IRREPARABLE INJURY IF AN INJUNCTIVE WRIT
IS NOT ISSUED

III. THERE IS AN URGENT NEED TO IMMEDIATELY


RESTRAIN RESPONDENT COURT OF APPEALS
FROM FURTHER ACTING ON THE CASES
INCLUDING IMPLEMENTING THE ASSAILED
RESOLUTIONS, AND RESPONDENT BINA Y FROM
DISCHARGING THE DUTIES AND FUNCTIONS
OF A MAYOR.

DISCUSSION

I. THE OFFICE OF THE


OMBUDSMAN'S INDEPENDENCE
WAS GRAVELY UNDERMINED BY
RESPONDENT COURT OF
APPEALS WHEN IT ISSUED THE
FIRST RESOLUTION AGAINST
THE PREVENTIVE SUSPENSION
OF RESPONDENT BINAY.

29. The Office of the Ombudsman is an independent body created


by the 1987 Constitution to curb corruption and abuse in government. It was
deliberately "constitutionalized" and placed outside the ambit of the political
branches of government to, in the words of Commissioner Florenz
Regalado, free it from "the insiaious tentacles of politics." 21 Putting the
Office of the Ombudsman beyond the reach anil influence of the very same
public officials and employees that it is tasked to investigate and ,prosecute is
the best guarantee of its efficacy. As this Honorable Court, observed:

Taking all this into consideration, the Ombudsman is in a league of


its own. It is different from other investigatory and;prosecutory agencies
of the government because the people under its jurisdiction are public
officials who, through pressure and influence, can qt1ash, delay or dismiss
investigations directed against them. Its function is critical because public
interest (in the accountability of public officers and employees) is at
stake. 22

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21
n Record of the Constitutional Commission (Vol. 2), 26 July 1986, p. 294.
.
Office of the Ombudsman vs. Samaniego, G.R. No. 175573. 11 Septerryber 2008.

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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 13of31

30. In order to further ensure the independence of the Office of the


Ombudsman, its charter - R.A. No. 6770 - likewise insulated it from
judicial intervention. This is clearly indicated in Section 14 of the said law:
Section 14. Restrictions. - No writ of injunction shall be issued
by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence that
the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.

No court shall hear any appeal or application. for remedy


against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law. [emphasis and underscoring
supplied]

31. Verily, therefore, the texts of the 1987 Constitution and of R.A.
No. 6770 leave no room to doubt the spirit that animates them. The need to
make the Office of the Ombudsman practically supreme in its own sphere -
the fight against graft and corruption - is so paramount that even apolitical
bodies like courts of law are prohibited from interfering with the exercise of
its investigative functions.

3 2. Without doubt, the broad investigatory powers of the Office. of


the Ombudsman, exercised pursl!ant to "its constitutional mandate a:;;
23
protector of the people," will be rendered .illusory once unscrupulous
public officials and employees are able breach its mantle of ,protection.

33. Wisely, the Framers and the legislators were able to recognize,
undoubtedly with the benefit of past experience, that an injunctive writ from
a court, obtained through fair means or foul, can undermine the
independence of the Office of the Ombudsman just as effectively as direct
harassment or political pressure would; and so, erring on the side of caution,
it had been decided that the protection to be accorded to the Office of the
Ombudsman in the performance of its constitutiortal duty should be broad
enough to cover even the injunctive reliefs traditionally obtainable from the
courts.

34. The foregoing only serve to highlight the patent and grave error
of respondent Court of Appeals when it issued the!,. Questioned Resolutions.
Even as the 1987 Constitution and R.A. No. 6770,: as well as a long line of
jurisprudence acknowledge the independence 'bf the Office of the
Ombudsman, respondent Court of Appeals ignored the sam~. recklessly
interfering with an ongoing investigation against respondent Binay.
Respondent Court of Appeals' actions, directed as they were at an

23
Cabrera vs. Marcelo, G.R. Nos. 157419-20. 13 December 2004.
1):
PETITION
' ' Office of the Ombudsman vs. Court qf Appeals, et al.
Page 14of31

independent constitutional body, constitute grave abuse of discretion and


should be restrained and undone.

35. Further it bears emphasis that the preventive suspension


ordered by the Office of the Ombudsman against respondent Binay is
integral to the ongoing process of administrative adjudication' against him.
Placing a public officer or employee facing an administrative complaint
under preventive suspension is an aid to investigation made available to the
Office of the Ombudsman by express provision of Section 24 of R.A. No.
6770, to wit:

SECTION 24. Preventive Suspension. - The Ombudsman or his


Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of guilt
is strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance
of duty; (b) the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against
him.
,
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than six months,
without pay, except when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.

Similarly, Section 9, Rule III of the Rules of Procedure of the Office . .


of the Ombudsman in administrative cases provides:

SECTION 9. Preventive Suspension. - Pending investigation, the


respondent may be preventively suspended without pay if, in the judgment
of the Ombudsman or his proper deputy, the evidence of guilt is strong
and (a) the charge against such .. officer or employee involves dishonesty,
oppression or gross misconduct, or gross neglect irt the performance of
duty; or (b) the charge would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the just, fair and
independent disposition of the cas~ filed against him. ,,
, , ~ tj .;

The preventive suspensioh ;hal~ c6ntinu~ until the case is


terminated; however, the total period of preventive shs'pensjon should not
exceed six months. Nevertheless, when the delay in the disposition of the
case is due to the fault, negligence or any cause attributable to the
respondent, the period of such delay shall not be counted in computing the
period of suspension herein provided.

-~

..
PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 15of31

24
36. As this Honorable Court explained in Ombudsman vs. Pelino,
preventive suspension is merely a "preventive measure," or a "preliminary
step in an administrative investigation." While not imposed in all
administrative cases as a matter of course, preventive suspensions are
resorted to when the prevailing circumstances of a particular case so
warrant, as when there is a need to "prevent the accused from using ]}is
position and the powers and prerogatives of his office to influence potential
witnesses or tamper with records which may be vital in the prosecution of
the case against him. " 25

37. In this case, respondent Binay was placed under preventive


suspension pending the resolution of the administrative complaints against
him (but not to exceed six months) for good reason - ttte cases involve
anomalies in the procurement and payment for the Parking Building of the
Makati City Hall. Needless to state, practically all the documentary evidence
relevant to the case are in the custody of the city government, in the same
way that potential witnesses - whether friendly or adverse - are currently in
the City's employ. There is, therefore, an imperative need to guard such.
evidence and witnesses against possible tampering and intimidation; hence,
the preventive suspension against respondent Binay and his co-respondents,
who are likewise incumbent officials of the city government.

38. Without doubt, therefore, ~pre~ntive su~ens.ion ~mposed by


the Office of the Ombudsman on respoildenf Ilinay is not oniy permissible
under the law but necessary given the pr.evailing circumstan~es of the case.
The Suspension Order was dictated by prudence and the need to preserve the
integrity of the ongoing administrative adjudication.

39. By seeking to restrain the preventive suspension of respondent


Binay, respondent Court of Appeals in effect is setting aside the
determination of the Office of the Ombudsman that the remedy of preventive
suspension is timely, proper and necessary in the course of the
administrative adjudication of the cases against him. The net effect of
respondent Court of Appeals' acts" is to delay and interfere with the ongoing
administrative cases against respondent Binay and,. worse, compromise the
pending proceedings by granting him continued access to evidence and
witnesses that bear heavily on the resolution of his: case. Respondent Court
of Appeals cannot substitute the Office of the Ompudsman' s judgment for
26
its own. This is precisely the kind of interference that the law proscribes.
l

,, ,;

40. Given then the independence vested ljy the 1987 Constitution
on the Office of the Ombudsman, and in view of: the express mandate of
R.A. No. 6770, particularly Section 14 thereot respondent Court of
24
G.R. No. 179261, 18 April 2008.
2s Id.
26
Garcia vs. Mojica, G.R. No. 139043, I 0 September 1999.
,,
.r
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PETITION
Office of the Ombudsman vs. Court qfAppeals, et al.
Page 16of31
---------------------------------------------------------------------

Appeals' First Resolution should be regarded for what it is: an act tainted by
grave abuse of discretion. Indeed, if the Office of the Ombudsman's
constitutionally-guaranteed independence were to mean anything, it would
have to include the freedom to conduct administrative proceedings openly,
decisively and without undue interference. If the directive in Section 14 of
R.A. No. 6770 is to be respected, respondent Court of Appeals should be
prevented from further delaying, compromising and interfering with the
ongoing resolution of the cases against respondent Binay. '
..
41. When it deprived the Office of the Ombudsman the right to
avail of a legally-recognized remedial measure - preventive suspension -
respondent Court of Appeals gravely abused its discretion and wantonly
ignored the independence and mandate of the Office of the Ombudsman.
2
Instead of according it the ''highest deference" .7 that it deserves, the
Suspension Order was capriciously and whimsically disturbed by respondent
Court of Appeals, unmindful of how such act would delay the investigation
and adversely affect the ability of the Ombudsman to resolve the complaints
against respondent Binay with justice, decisiveness and dispatch.

II. THE SECOND RESOLUTION IS


ILLEGAL AND IMPROPER FOR
HAVING BEEN ISSUED
AGAINST AN IMPEACHABLE
OFFICER, WHO MAY NOT,
UNDER THE . UNASSAILABLE
DOCUMENTED FACTS, BE
SUBJECTED TO CONTEMPT
PROCEEDINGS.

,. "' .
. .
f' ( I t
.,. I

42. After issuing the First Resolution, \Vhicji in itself is already an


undue interference with the investigation being conducted by the Office of
the Ombudsman, respondent Court of Appeals aggravated its error of
jurisdiction by issuing the Second Resolution.

43. It bears emphasis that the current predicament of Makati City


can be traced to the issuance by respondent Court of Appeals of the First
Resolution. Because of the First Resolution, which was belatedly issued
after the Suspension Order had already been fully implemented, there are
now two local officials claiming to be the Mayor! of the .City. Worse, the
tenor and text of the First Resolution was so vague and ambiguous as .to
what act it seeks to restrain and to whom the directive addressed, that it is
left so much room for varying interpretations, especially in light of the
context that was prevailing when it was issued. :

v .
Office of the Ombudsman vs. Evangelista, G.R. No. 177211. 13 March 2009.

--~ y

"
I
.,
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PETITION
Office of the Ombud~man vs. Court of Appeals, et al.
Page 17of31
---------------------------------------------------------------------

44. Despite the fact, however, that it was respondent Court of


Appeals which, so to speak, sowed confusion in Makati City, it issued the
Second Resolution directing petitioner to answer the contempt charges filed
against her by respondent Binay.

45. The Petition for Contempt filed by respondent Binay is his


attempt to further becloud or obfuscate the legal status and effect of the First
Resolution, in light of the earlier implementation of the Suspension Order
and the swearing in of an Acting Mayor in his stead. Respondent Binay
sought to avail of the contempt powers of respondent Court of Appeals in
order to force and compel those who hold different opinions to submit to his
position on the controversy.

46. What respondent Binay forgets, however, is that petitioner is an


impeachable officer2 who cannot be subjected by respondent Court of
Appeals to contempt proceedings, for official acts cCYmmitted in the
discharge of her functions and dties. Such immunity,, common to all
impeachable officers, is but another manifestation of the intent of the 1987
Constitution to make the Office of the Ombudsman a truly independent body
insulated from politics.

47. As an impeachable officer, petitioner can only be subjected to


criminal proceedings after she steps down from office. 29 Otherwise, the
constitutional guarantee against her removal from office except through the
extraordinary process of impeachment would be rendered nugatory.
Allowing a criminal charge to proceed against an impeachable officer would
indirectly expose her to the risk of being removed from office through
means other than that ordained by the 1987 Constitution. 30 This Honorable
Court made this rule very clear in In re: Gonzalez: 31

It is important to underscore the rule of constitutional law here


involved. This principle may be succinctly formulated in the following
terms: A public officer who under the Constitution is required to be a
Member of the Philippine Bar as a qualification for the office held by him
and who may be removed from office only by impeachment, cannot be
charged with disbarment durin~ the incumbency of such public ~fficer.
Further, such public officer, during his incumbency, cannot be
charged criminally before the Sandiganbayan or any other court with
any offense which carries with it the penalty of removal from office,
or any penalty service of which would amount to removal from office.
[emphasis and underscoring supplied]

28
Sec. 2, Article XI, 1987 Constitution. ,
29
See Office of the Ombudsman vs. CA and Mojica, G.R. No. 146486, 04 March 2005.
30
See Lecaroz vs. Sandiganbayan, G.R. No. 130872, 25 March 1999.
31
A.M. No. 88-4-5433, 15 April 1988.

~ '-~
I

PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 18of31
---------------------------------------------------------------------

48. Considering the foregoing, petitioner, as an impeachable


officer, should not have been required, at the very outset, to comment on
respondent Binay's Petition for Contempt. Respondent Court of Appeals
should have refrained from acting on the Petition for Conterp.pt against
petitioner is concerned, because of the principle that "proceedings for
32
punishment of indirect contempt are criminal in nature. " Under Rule 71 of
the Rules of Court, contempt carries with it the punishment of fine or
imprisonment - penalties which petitioner, being an impeachable officer,
cannot be subjected to during her term.
,
49. A cursory reading of the penalties imposable. for indirect
contempt would show why petitioner should be immune therefrom:

SECTION 6. Punishment if Found Guilty. - If the accused


is thereupon adjudged guilty of contempt committed against a
superior court or judge, he may be fined not exceeding one
thousand pesos or imprisoned not more than six (6) months, or
both; if adjudged guilty of contempt committed against an inferior
court or judge, he may be fined not exceeding one hundred pesos
or imprisoned not more than one ( 1) month, or both, and if the
contempt consists in the violation of an injunction, he may also be
ordered to make complete restitution to the party injured by such
violation.

SECTION 7. Imprisonment Until Order Obeyed. - When


the contempt consists in the omission to do an act which is yet in
the power of the accused to perform, he may be imprisoned by
order of a superior court until he performs it.

50. It is clear from the foregoing that petitioner runs the risk of
being imprisoned, possibly for an indefinite period, if she is cited for
contempt. In that case, she will be., for all intents and purposes, removed
from office and prevented from discharging her mandate. This is precisely
the evil sought to be prevented by the 1987 Constitution when it designated
a very limited class of public officials as removable only by impeachment.
Needless to state, there is a paramount need to shield these public officials,
including petitioner, from the threat of removal froin office by means other
than impeachment, because of the significance of the public functions they
exercise.

51. Respondent Court of Appeals' Second Resolution was,


therefore, issued with grave abuse of discretion. Qiven the immunity from
criminal proceedings that impeachable officers like!petitioner enjoys (and it
has been established supra that a contempt . proceedings is criminal in
nature), respondent Court of Appeals should riot eve have directed

32
Soriano vs. Court <~(Appeals, G. R. No. 128938, 04 June 2004.

~
PETITION
Office of the Ombudsman vs. Court ofAppeals. et al.
Page 19of31
---------------------------------------------------------------------

petitioner to comment on respondent Binay's Petition for Contempt. In


doing so, it violated the clear mandate of the 1987 Constitution and
undermined the independence of petitioner, who: as an impeachable officer,
should be able to perform her duties and functions free fr0m the threat of
criminal or other punitive sanctions.

III. THE QUESTIONED RESOLUTIONS


ISSUED BY RESPONDENT COURT
OF APPEALS WILL CREATE A
DANGEROUS PRECEDENT FOR
OTHER PUBLIC OFFICIALS AND
EMPLOYEES UNDER
INVESTIGATION OR
PROSECUTION TO TRW ART OR
DELAY SUCH INVESTIGATION OR
PROSECUTION

52. IN SUM, respondent Court of Appeals allowed itself to be an


instrument of respondent Binay in his maneuvers to delay or even
compromise the administrative cases against him before the Office of the
Ombudsman. In issuing the Questioned Resolutions, re~pondent Court of
Appeals paved the way for future respondents to rightfully suppose that the
Ombudsman's criminal and administrative jurisdiction over them can be
trumped by a judicial injunction. This is unfortunate, because the clear
language of the law - both in the 1987 Constitution and in R.A. No. 6770 -
points to the clear intention of the Framers and the legislators to give the
Ombudsman a wide latitude of action, without being hampered by injunctive
writs. Respondent Court of Appeals is now in the process of eroding
whatever protective mantle of independence was originally bestowed upon
the Office of the Ombudsman since its inception.

53. Petitioner implores this Honorable Court to immediately


intervene and contain the damage wrought by the actions of respondent
Court of Appeals. While this ongoing controversy involving respondent
Binay represents only one case out of the thousands that the Office of the
Ombudsman handles, it suffices to say that c"urr~nt developments, if not
managed properly, would adversely affect public int~rest. '
... 1f t

54. What we seek to avoid is the "Binay Case" wittingly or


unwittingly creating a "template" for other future'i respondents in criminal
and administrative cases to pattern their strategies after. Respondent Court of
Appeals' First Resolution can pave the way for other respondents in cases
before the Office of the Ombudsman to repair to the courts - especially one
perceived to be sympathetic - in order to halt or simply derail the
investigation against them. If the Ombudsman asserts her independence,

\
'""

' ~ ;
.,

PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 20of31

adverse parties can simply follow respondent Binaf s tack and charge her
for contempt.

55. Petitioner seeks to tak~ this opportunity to obtain a ruling, on


behalf of the institution she represents, that will clarify once and for all the
extent to which respondent Court of Appeals and lower courts may interfere
with the Ombudsman's investigations. Index animi sermo est- speech is the
index of intention. 33 The language of the law, when clear and unambiguous,
should be given effect. Indeed, the principle verba legis non est recedendum
- from the words of the statute there should be no departure - is "well-
entrenched in this jurisdiction."34 Given these universally accepted rules of
statutory construction, it is high time that this Honorable Court decide, once
and for all, exactly what the law means when it categorically states that -

No writ of injunction shall be issued by any court to delay an


investigation being conducted by the Ombudsman under this Act,
unless there is a prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the Ombudsman. 35

56. Without a categorical ruling, the strategy employed by


respondent Binay in challenging the Ombudsman's investigation against him
might open the floodgates for similar reliefs to be requested from the Court
of Appeals. This would, needless to state, slowly but surely diminish the
independence of the Office of the Ombudsman, which the Framers of the
1987 Constitution fought hard for, guided by lessons from past failed
experiments in creating and maintaining an anti-graft body. The "Binay
Case" should not set a dangerous precedent on how the Ombudsman's
power to investigate anomalies in government can be thwarted.

IV. THE FIRST RESOLUTION WAS


ISSUED WITH GRAVE ABUSE OF
DISCRETION, AMOUNTING TO
LACK OR EXCESS OF
JURISDICTION, CONSIDERING
THAT IT IS TOTALLY BEREFT OF
LEGAL BASIS.
j

A. Respondent Binay has no claim of:right


in esse to his public position as Mayor
of Makati City ~that can justif} his
holding on to the position of a; City
Mayor r

33
TJDCORP vs. CSC, G. R. No. 182249, 05 March 2013.
34
Republic vs. Camacho, G.R. No. 185604, 13 June 2013.
35
Section 14, R.A. No. 6770 .

...

..
PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 21of31
---------------------------------------------------------------------

36
57. In his Petition for Certiorari dated 10 March 2015, respondent
Binay alleges that he is "entitled to injunctive relief since he has a clear and
unmistakable right to hold public office, having validly won by a landslide
vote in the 2010 and 2013 local elections. " 37 This claim of a right to public
office is bereft of legal basis.

58. In ruling, however, that the Suspension drder should be


restrained due to the "possible repercussions on the electorate who will
unquestionably be affected by suspension of their elective official," 38
respondent Court of Appeals appears to have lent credence to respondent
Binay's claim. It is a basic tenet in the country's constitutional system,
however, that "public office is a public trust," and that there is no vested
right in public office, nor an absolute right to hold office. No proprietary title
attaches to a public office, as public service is not a property .right. 39 Thus,
the basis that respondent Binay claims for his application for TRO does not
exist; respondent Court of Appeals' issuance of the First Resolution was
therefore tainted with grave abuse of discretion.

59. In jurisprudence, at the most, this Honorable Court has upheld


public officers' right to due process in the protection of their security of
tenure, which, in a limited sense, is analogous to property. Such fundamental
right to security of tenure, however, cannot be ipvoked against a preventive
suspension order which is merely a preventive measure, not imposed as a
penalty. 40 Hence, there being no right, respondent Binay cannot claim any
right against, or damage or injury that he is bound to suffer from the
issuance of the preventive suspension order, since there is no vested right to
a public office, or even an absolute right to hold it. 41

60. To reiterate, the purpose of preventive suspension is to enable


the disciplining authority to investigate charges against respondent by
preventing him from intimidating or in any way influencing witnesses
42
against him. From the foregoing purpose, it is clear that the laws on public
accountability give a premium to the protection of the service rather than to
the interests of the individual office holder. 43

61. While respondent Binay vehemently argues that the preventive


suspension order (which, by law, is immediately exe~utory) was issued to his

36
A copy of the Petition for Certiorari is attached hereto as Annex "J".
37
Paragraph 7.5 of the Petition for Certiorari ..
38
First Resolution, p. 5.
39
CSC vs. Javier, G.R. No. 173264, 22 February 2008.
4
Carabeo vs. CA, G.R. Nos. 178000 and 178003, 04 December 2009.
41

42
Carabeo vs. CA, G.R. Nos. 178000 and 178003, 04 December 2009.
CSC vs. Alfonso. G.R. No. 179452, 11 June 2009.
43
Carabeo vs. CA, G.R. Nos. 178000 and 178003, 04 December 2009.
,,

, ...
PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page 22of31

"damage" and "prejudice," 44 it is unclear how exactly the exercise of the


Ombudsman's constitutional powers has caused him "irreparable injury." It
bears emphasis that in cases of preventive suspension, the suspended official
is only barred from performing the functions of his office; he does not vacate
and lose title to his office as loss of office is a consequence that only results
45
upon an eventual finding of guilt or liability. So much so that, if the
investigation is not finished and a decision is not rendered within the
prescribed period, the suspension will be lifted and the respondent will
automatically be reinstated. 46

62. Respondent Binay stands charged before the Office of the


Ombudsman with, among others, Grave Misconduct, Serious Dishonesty
and Conduct Prejudicial to the Best Interest of the Service, in connection
with the expenditure of over PhPI .3 billion of public funds. Assuming he
has any right to remain in office, in view of the seriousness of the charges,
respondent should allege and prove that he is personally entitled to an
injunctive relief grounded on his personal rig~t, not merely on "possible
repercussions on the electorate" and definitely something more substantial
than that he "won by a landslide vote in the 2010 and 2013' local elections."
Failing such, his application for injunctive relief, especially against an
independent constitutional body like the Office of the Ombudsman, should
have been given scant consideration; but respondent Court of Appeals, by its
whimsical, capricious and injudicious exercise of discretion, granted it
nonetheless. This is the very epitome of grave abuse of discretion.

B. The determination by the Office of the


Ombudsman that respondent Binay
should be preventively suspended was a
lawful exercise of discretion that cannot
be the subject of any injunctive writ.

63. The authority of the Ombudsman to conduct administrative


investigations is beyond cavil. R.A. No. 6770. intended to bestow on said
office full administrative disciplinary authority, which entails the power to
place under preventive suspension public officers and empfoyees pending an
47
investigation, as provided in Section 24 of the said law.

64. Under the statute, two requisites must concur to render the
preventive suspension order valid: ( 1) that irt the judgment of the
Ombudsman or the Deputy Ombudsman, the evidence of guilt is strong; and
(2) either: (a) that the offense charged involves dishonesty, oppression or

44
Paragraph 7.4 of the Petition for Certiorari.
45
Aldovino vs. Come/ec, G.R. No. 184836, 23 December 2009 ..
Board of Trustees ofthe GS!S vs. Velasco, G.R. No. 170463, 02 Febr~ary 2011
46
47
Ombudsman vs. CA and Magbanua, G.R. No. 168079, 17 July 2007. '
... .(

'
PETITION
Office of the Ombudsman vs. Court qfAppeals, et al.
Page 23of31

grave misconduct or neglect in the performance of duty; (b) the charge


would warrant removal from the service; or (c) the respondent's continued
stay in office may prejudice the case filed against him. 48

65. In the light of these well-defined parameters, it cannot be


doubted that respondent Court of Appeals, or any court for that matter,
cannot substitute its own judgment for that of the Ombudsman on the issue
of whether or not the issuance of a preventive suspension order is proper,
without a clear showing of grave abuse of discretion. 49 Such judgment rests
on the Ombudsman, who is in the best position to determine whether a
respondent public officer or employee's continued stay in office would be
detrimental to the integrity of the pending administrative pr9ceedings.

66. In fact, even this Honorable Court, on more than one occasion,
showed restraint and upheld its policy not to interfere with the Ombudsman's
exercise of its investigatory and prosecutory powers; this rule having been
based on the respect for the initiative and independence inherent in said
office, which is "beholden to no one, acts as the champion of the people and
the preserver of the integrity of the public service. " 50

67. Hence, when respondent Court of Appeals began to wander into


an area expressly reserved for the Ombudsman, the former already came
dangerously close to abusing its discretion; when it issued the First
Resolution without grounding the same on any action evincing grave abuse
of discretion on the Ombudsman's part, its undue intrusion became
complete. The law is very clear and unequivocal: an injunctive writ may
issue against the investigatory authority of the Ombudsman only when grave
abuse of discretion or lack of jurisdiction is established.

There is no grave abuse of discretion on


petitioner's part.

68. Petitioner never committed grave abuse of discretion. In fact,


perusal of the First Resolution ~ould reveal various indicia that it was
actually respondent Court of Appeals which gravely abused its discretion. In
its First Resolution, respondent Court of Appeals made no mention of "lack
of jurisdiction" or "grave abuse of discretion" on the Ombudsman's part in
the issuance of the Suspension Order. It did not cdtegorically state that any
of the requisites for the valid issuance of the S<lspension Order was not
complied with. Most importantly, it did not justify its act of giving more
weight to its own judgment on the propriety of implementing the Suspension
Order, instead of deferring to the Ombudsman who, under Section 24 of
48
Office of the Ombudsman vs. Evangelista, G.R. No. 177211, 13 March 2009.
Office of the Ombudsman vs. Capulong, G.R~No. 201643, 12 March 2014.
49
50
Office of the Ombudsman vs. Evangelista, G.R. No. 177211, 13 March 2009; Casing vs. Ombudsman,
G.R. No. 192334, 13 June 2012; Araullo vs. Office of the Ombudsman, G.R. No. 194157, 30 July 2014

. . ..
c,
PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 24of31

R.A. No. 6770, is given the power to suspend a public official pending
investigation if "in his judgment" the evidence presented before him tends
to show that the official's guilt h5 strong and if the further requisites
51
enumerated in Section 24 are present.

69. It bears to note that in the cases filed against respondent Binay,
petitioner exercised her judgment and found the evidence of guilt to be
strong on the basis of the evidence presented in the complaint, which
included sworn statements of alleged losing bidders and members of the
Makati Bids and Awards Committee (attesting to irregularities in the
procurement subject of the complaint), documents negating the purported
publication of bids, disbursement vouchers, checks and official receipts.
Consideration of the foregoing pieces of evidence suffices to justify the
issuance of the Suspension Order, since the said remedy is merely a
preliminary step in an administrative investigation. 52 It does not even require
prior notice nor hearing. 53 At such initial stage, there is no requirement that
there be a finding of substantial evidence of guilt to warrant the issuance of
an order for preventive suspension. All that is needed is that the requisites
under Section 24 be complied with.

70. As far as the first requirement - "evidence of guilt ,is strong" -


is concerned, petitioner was able to establish the same in the Suspension
Order. As to the second requisite, 54 there is likewise no dispute that .all the
enumerated circumstances are present, as clearly ~xplained in the
Suspension Order:

As regards the second requisite, all the circumstances enumerated


therein are likewise present. The Complaint charges respondents
[including respondent Binay] with Grave Misconduct, Serious Dishonesty
and Conduct Prejudicial to the Best Interest of the Service. If proven true,
they constitute grounds for removal from public service under the Revised
Rules on Administrative Cases in the Civil Service. Moreover, since the
respondents' respective positions give them access to public records and
influence on possible witnesses, respondents' continued stay in officer
may prejudice the cases filed against them. 55

71. Considering that the Suspension Order was issued in


consonance with the requirements of the law, there is absolutely no evidence
that petitioner gravely abused her discretion. H~r actions were merely in line
with the performance of her constitutionally enshrined authority. There
being no grave abuse of discretion on the part of petitioner: there is no legal
51
Ombudsman vs. Va/eroso, G.R. No. 167828, 02 April 2, 2007; emphasis supplied.
52
Quimbo vs. Gervacio, G.R. No. 155620, 09 August 2005
53
Hagadvs. Gozo-Dadole, G.R. No. 108072, 12 December 1995 i
54
Either: (a) that the offense charged involves dishonesty, oppression or'grave misconduct or neglect in the
performance of duty; (b) the charge would warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him
55
Suspension Order, p. 9. ..
PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page25 o/31
---------------------------------------------------------------------

ground for respondent Court of Appeals to countermand her .directive to


preventively suspend respondent Binay pending the resolution of the
administrative cases against him. ..

Petitioner has jurisdiction over the subject


matter of respondent Binay's case.

72. At all events, even conceding that the legality or propriety of


the issuance of a preventive suspension o:rder can be: reviewed by respondent
Court of Appeals by way of a petition for certiorari, it remains a fact that,
under the law, such power of review does not carry with it the power to
restrain the enforcement, effectivity and implementation of the preventive
suspension order. To reiterate, Section 14 of R._A. No. 6770 is clear on this
matter:

No writ of injunction shall be issued by any court ' to delay an


investigation being conducted by the Ombudsman under this Act,
unless there is a prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the Ombudsman.
[emphasis and underscoring supplied]

73. Clearly, then, an injunctive writ cannot be issued to delay the


investigation of the Ombudsman (and it has been discussed supra that a
preventive suspension order is integral to the Ombudsman's investigations).
Even when a preventive suspension order is submitted to respondent Court
of Appeals' review, the latter has no power to restrain the enforcement of the
same during the pendency of such review, unless there is prima (acie
evidence that a matter lies outside the jurisdiction of the Ombudsman.
Without doubt, in this case, petitioner was acting within the scope of her
jurisdiction when she acted on respondent Binay's case.
I

74. Subject matter jurisdiction is conferred by law, not by the


consent or acquiescence of any or all of the parties. 56 In this case, the subject
matter of the complaints against respondent Bin;ay was well within the
Ombudsman's jurisdiction. Under Section 13 of R.A. No. 6770, the
Ombudsman has the authority to act on complaints filed in any form or
manner against officers or employees of the Government, or of any
subdivision, agency or instrumentality thereof, inclUding government-owned
or controlled corporations, and enforce their ~dministrative, civil and
criminal liability in every case where the evidence warrants in order to
promote efficient service by the Government to the ;people.

56
Cojuangco vs. Republic, G.R. No. 180705, 27 November 2012
PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page 26 o/31

75. Respondent Binay never raised the issue of "lack of


jurisdiction" in his Petition before respondent Court of Appeals. He never
averred that the subject matter of the administrative complaints against him
is outside the jurisdiction of the Office of the Ombudsman. To be sure,
respondent Binay, being the Mayor of Makati City, is a public officer ov~r
whom the Ombudsman may exercise administrative or disciplinary
jurisdiction.

76. Thus, jurisdiction-wise, petitioner was acting within the scope


of her administrative disciplinary functions when she issued the order
placing respondent Binay under preventive suspension. Hence, no injunctive
writ should have issued to restrain the exercise of her investigatory
functions. Consequently, when respondent Court of Appeals issued its First
Resolution, it did so in wanton violation of the law and in utter disregard of
the independence and autonomy of the Office of the Ombudsman. Without a
doubt, it committed grave abuse of discretion.

GROUNDS IN SUPPORT OF THE APPLICATION FOR


TEMPORARY RESTRAINING ORDER AND/OR WRIT OF
PRELIMINARY INJUNCTION

Petitioner adopts and repleads, by reference, all the foregoing


allegations in support of her application for the issuance of a TRO and/or a
writ of preliminary injunction, and further alleges the following grounds:

I. PETITIONER HAS A CLEAR


LEGAL RIGHT ENTITLED TO
PROTECTION BY WAY OF AN
INJUNCTIVE WRIT.

77. Petitioner has a clear legal right that she has an interest in
protecting, and which can only be preserved during the pendency of the
Petition if an injunctive writ is issued by this Honorable Court. A "clear
legal right" means one clearly founded on or ; granted by law or is
enforceable as a matter of law. 57

78. As discussed supra, the institution that petitioner heads - the


Office of the Ombudsman - is an independent body'that derives its mandate
from no less than the 1987 Constitution. The independence granted to the
Office of the Ombudsman is further fleshed dut in R.A. No. 6770,
particularly Section 14 thereof, which proscribes tHe issuance of injunctive
writs that would delay an investigation that it is conducting. '
I

Boncodin vs. National Power Corporation Employees Consolidated U~ion (NECU), 503 SCRA 611, 623
57

(2006) .

.
' -.
PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 27of31

79. The acts of respondents significantly bear on the capacity of


petitioner and the Office of the Ombudsman to act on res:pondent Binay's
pending administrative case with the independence expressly accorded to
them by statute and the Fundamental Law. By respondent Court of Appeals'
First Resolution, the administrative case against respondent Binay is placed
in jeopardy, because his continued stay in the premises of the Makati City
Hall endangers the integrity of the evidence and witnesses that may be found
therein. Petitioner has the clear legal right - if not solemn duty - to preserve
the integrity of the Office of the Ombudsman and its legal proceedings, by
ensuring that its Suspension Order is given full force and effect and not
circumvented.

80. Moreover, petitioner has a clear legal right not to be subjected


to contempt proceedings. As discussed above, contempt is criminal in nature
and punishable by imprisonment that can even be extended indefinitely - a
penalty that cannot be countenanced insofar as petitioner, an impeachable
officer under the 1987 Constitution, is concerned. As an impeachable officer,
petitioner cannot be removed from office except by impeachment; she can
likewise not be removed indirectly by subjecting her, to criminal or
administrative proceedings that carry penalties akin to removal from office.
The continuation of the contempt proceedings before respondent Court of
Appeals would undermine the status of petitioner as a public official
removable only by impeachment; she therefore has a clear legal right to pray
that such proceedings be restrained.

II. PETITIONER STANDS TO SUFFER


GRAVE AND IRREPARABLE
INJURY IF AN INJUNCTIVE WRIT
IS NOT ISSUED.

81. Unless restrained by this Honorable Court, the acts of


respondent Court of Appeals woukt continue to erode the independence and
authority of petitioner as Ombudsman and the Office of the Ombudsman as
an institution. As the "people's watchdog," the Office of the Ombudsman is
only as strong and effective as the public it seeks to protect trusts it and finds
it credible. Being prevented from conducting its own investigation in a
manner it deems best operates to erode the people's faith i:h the Ombudsman.
Also, respondent Binay's continued access to doci.1ments and witnesses at
City Hall - which is what the Suspension Order precisely seeks to restrain -
compromises and endangers the integrity of the pending administrative case
against him.

82. On the other hand, being haled to court on pain of contempt


undermines the Ombudsman's stature as an impeachable officer of an
PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 28of31

independent constitutional body. It likewise exposes her to similar forms of


intimidation and harassment from other public officers that she may .
investigate in the future. Being made to explain and justify her official
actions before respondent Court of Appeals tarnishes petitioner's integrity
and casts serious doubt on the independence and autonomy of her office.

83. Clearly, from the fo:r:_egoing, petitioner stands to suffer grave


and irreparable injury from the continued acts of respondent Court of
Appeals. It also bears to mention that equal (if not greater) injury stands to
be sustained by the people of Makati City, the legal system and the Rule of
Law itself if this Honorable Court would not wield its authority judiciously
and restrain the contested and questionable acts of respondent Court of
Appeals.

III. THERE IS AN URGENT NEED TO


IMMEDIATELY RESTRAIN
RESPONDENT COURT OF
APPEALS FROM FURTHER
ACTING ON THE CASES
INCLUDING IMPLEMENTING THE
ASSAILED RESOLUTIONS, AND
RESPONDENT BINAY FROM
DISCHARGING THE DUTIES AND
FUNCTIONS OF A MAYOR.

84. In light of the grave and irreparable injuries discussed above,


there is more than ample ground for this Honorable Court to immediately
grant injunctive relief in favor of petitioner. There is an urgent need to
affirm what . it means for a constitutional agency to be declared
"independent" and what it means for an impeachable officer to be
"removable only by impeachment." The constitutional questions raised in
this Petition cannot be suffered to languish for long; the integrity of the
Fundamental Law cannot endure periods of prolonged doubts and
uncertainti es.

85. The legal and judicial system is likewise in a state of limbo


today, with members of the legal profession divided sharply on which side
(between Acting Mayor Pefia and respondent Binay) is in the right. The
prevailing state of confusion, arising from the issuance of the First
Resolution by respondent Court of Appeals f1:nd respondent Binay's
continuous misrepresentation and .discharging of Jhe functions of a city
mayor on the basis of such First Resolution, MUST: BE RESOLVED at the
soonest possible time and in the most decisive manner.

J'
PETITION
Office of the Ombudsman vs. Court qf Appeals, et al.
Page 29 of3/

86. Lastly, there is a profound need for this Honorable Court to


immediately issue an injunctive writ to restrain respondent Court of Appeals
from continuing with the proceedings in the cases below, and to restrain
respondent Binay from continuing to represent himself as the city mayor.

PRAYER

.. .
WHEREFORE, petitioner respectfully prays that this Honorable
Court:

1. Immediately ISSUE a Temporary Restraining Order and/or Writ of


Preliminary Injunction (1) enjoining respondent Court of Appeals
from conducting further proceedings in CA-G.R. No. 139453 arid
CA-G.R. No. 139504, further enjoining the said court from
implementing the Resolutions dated March 16, 2015 and March
20, 2015, until further notice or orders from this Honorable Court;
and (2) enjoining respondent Binay from continuing to
misrepresent himself as the City Mayor of Makati City and
discharging functions as such;

2. After due notice and hearing, render judgment and issue a: (a) writ
of certiorari ANNULLING the questioned Resolution dated 16
March 2015, and (b) writ of prohibition COMMANDING
respondent Court of Appeals (Sixth Division) to desist from further
proceeding with the Amended and Supplemental Petition for
Contempt as against Ombudsman Conchita Carpio Morales.

Other reliefs just and equitable under the premises are likewise prayed
for.

Makati City for the City of Manila, Metro Manila, Philippines, 25


March 2015.

II Signatories to follow//

...
Roll No. 44957
IBP Lifetime Roll No. 08505
MCLE Compliance No. IV-0016556

:--t+-8!Y7ll \:l.~J*T-
'tIE,RMES L. OCAMPO
Assistant Solicitor General
Roll No. 40169
IBP Lifetime Roll No. 09135
MCLE Compliance No. IV-0016556

,/j/v{ J( ~
RAYMUND I. RIGO DON
Senior State Solicitor
Roll No. 39730
IBP Lifetime Roll No. 013395, 2/12/15
MCLE Compliance No. IV-0019451

OFFICE OF THE SOLICITOR GENERAL


134 Amorsolo Street, Legaspi Village,
Makati City

Copy furnished:

ATTY. CLARO F. CERTEZA


ATTY. MARIA PATRICIA L. ALVAREZ
SUBIDO PAGENTE CERTEZA MENDOZA & BINA Y,
Counsel for Respondent
5th Floor, Prince Building, 117 Rada St.
Legaspi Village, 1129 Makati City

COURT OF APPEALS
Ma. Orosa Street,
Ermita Manila
(CA-G.R. SP No. 139453 &
CA-G.R. SP No. 139504)

'
.'.' <'I

JEJOMAR ERWIN S. BINAY


8514 Caong Street, Brgy. San Antonio
Makati City

EXPLANATION

The foregoing Petition is being served by registered mail on


respondents due to lack of time and personnel to effect personal service.

/l--A f-~
'
RAYMUND I. RIGODON

....

~
VERIFICATION AND CERTIFICATION
OF NON-FORUM SHOPPING ,

I, CONCHITA CARPIO MORALES, of legal age, Filipino, and with


Office address atthe Office of the Ombudsman, Agham Road, Diliman, Quezon
City, after having been duly sworn to in accordance with law, hereby depose and
state that:

1. I am the Ombudsman of the Republic of the Philippines and the petitioner


in the case entitled "Conchita Carpio Morales v. Court ofAppeals (Sixth Division)
and Jejomar Erwin S. Binay, Jr. ";

2. I have caused the preparation of and have read the foregoing petition;

3. I have read and understood the.. contents thereof and the same are true of
my own personal knowledge or based on authentic records;

4. I have not commenced any action or proceeding involving the same


issues and the same parties in any court, tribunal, or quasi-judicial agency;

5. Should I hereafter learn that a similar action or proceeding has been filed
or, is pending before the Honorable Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or quasi-judicial agency, I undertake to
promptly inform the Court of that fact within five (5) days therefrom, as well as of
the status thereof.

IN WITNESS WHEREOF, I have set my hand and affixed my signature


this 25th day of March 2015 in Quezon City, Philippines.

co
Ombudsman

SUBSCRIBED AND SWORN TO before me this 25th day of March 2015


at Quezon City, Philippines,
.
affiant personally exhibited ,to me her Office of the
[,

Ombudsman I.D. No. 110110 issued in Quezon _City, Philippines.

;j
:MARIBETll\TAY'fAYON-PADIOS
budstnan '
in\stering Officer

Ji

r"'_...._ . ~- . ,
i OFFICE OF THE OMBUDSMAN
HUMAN RESOURCE MANAGEMENT DIVISION

!1tit
CERTIFIED
By: PH.~~? 5~'.l-HJ- ~ i ! p~ IWllBl!flln'i.
! Date: CONCHITA CAP.PIO MORALES
OMllllllSMAtl

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/' . . f . J."
(__e,_.,.,,-lt;... ~~<-.J.;,__:j__.':>;- '.fM..
';t CONCHITA CARPIO MGJU.Lm;
CJmluachman :

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TlN no.
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Blood T}'.oe '
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In cu:ic nf am:ryuncy. plcaac nolifi.


Name
EUGENIO T. MORALES! JR.
Address
19 Carpio Compound, Soldier' Hill, Munrinlupa Cilr

Tel. No.
(02) 809-82911

'~
Sitmillun: nflluldc1

(. ,...,
Republic of the Philippines)
Quezon City )S.S.

AFFIDAVIT OF SERVICE

I, JbSELITO B. BELLEZA, as Administrative Aide II of the Office of Legal


Affiars, Office of the Ombudsman, with postal address at Office of the Ombudsman,
Ombudsman Bldg., Agham Road, Government Center, North Triangle, Quezon City,
under oath, hereby depose and say:

That on 25 March 2015, I served copies of the Petition for Certiorari and
Prohibition dated 25 March 2015 in G.R. entitled "Conchita Carpio Morales vs
Court of Appeals (Sixth Division) and Jejomar Erwin S. Binay, Jr. " pursuant to Section
13, Rule 13 of the 1997 Rules of Civil Procedure, in the following manner, to wit:

ADDRESSEES

COURT OF APPEALS
Padre Faura, Manila

JEJOMAR ERWIN S. BIN{\Y, JR. By Registered Mail


8514 Caong St., Brgy. San Antonio Registry Receipt No. \\ ";'.'/ o
G>~
Makati City 3--~i;-l.S

r
ATTY. CLARO F. CERTEZA By Registered Mail
Subido Pagente Certeza Mendoza & Binay Law Offices Registry Receipt No. \I ~1
~c..'f'b
5/F Prince Building, 117 Rada Street 6-J.b.-!5
Legaspi Village, 1129 Makati City

by depositing copies of the pleading on 25 March 2015 with the Central Post Office,
Quezon City, as evidenced by the registry receipt numbers indicated above, after the
names of the party-addressees, which original receipts are attached to the original of the
aforesaid Petition for Certiorari and Prohibition, and with instructions to the postmaster
to return the mail to the sender after ten(lO) days, if undelivered to the party-addressee
concerned. :

25 March 2015, Quezon City, Philippines.

JOS~L~LLEZA
' Affiant
,;

SUBSCRIBED AND SWORN to before me this 25th day of March 2015, affiant
exhibiting to me his Office of the Ombudsman I.D. No. 940123, bearing his photograph
and signature. '

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Republic of the Philippines )


Quezon City ) S.S.

VERIFIED DECLARATION

I, JOSELITO B. BELLEZA, hereby declare that the Petition for


Certiorari and Prohibition dated 25 March 2015 of the Office of the
Ombudsman filed via registered mail on 25 March 2015 in G.R. No. - - -
entitled "Conchita Carpio Morales vs. Court ofAppeals (Sixth Division) and
Jejomar Erwin S. Binay, Jr. " hereto submitted electronically in accordance
with the Efficient Use of Paper Rule is complete and true copy of the
document filed with tiie Supreme Court.

,SELIT~
Administering Aide II

SUBSCRIBED AND SWORN TO before me this 25th day of March


2015 affiant exhibiting his competent evidence of identity, to wit: Office of
the Ombudsman Employee's ID No. 940123 bearing his photograph and
signature and signed by the Honorable Conchita Carpio Morales,
Ombudsman.

MA. . ~~

-~ . -1'1