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Comment/Opposition: - Versus
Comment/Opposition: - Versus
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COMMENT/OPPOSITION
(Re: Petition for Certiorari and Prohibition With Urgent
Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction dated 25 March 2015)
PREFATORY
1
It must be remembered that the special civil action for certiorari
under Rule 65 of the Rules of Court is intended to correct errors of
jurisdiction or grave abuse of discretion an1ounting to lack or excess
of jurisdiction. Thus, the action for certiorari "will prosper only if
grave abuse of discretion is alleged and proved to exist. The abuse of
discretion must be so patent and gross as to amount to an evasion of
a positive duty or a virtua~ refusal to perform a duty enjoined by law
or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility." (Spouses Castillo vs. Court of Appeals, G.R. No. 189151, 25
January 2012)
In this case, it appears that the instant Petition for Certiorari has
been filed because Petitioner believes that there is a state of confusion
and that 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 Pena and respondent Binay) is in
the right." However, there has been no allegation that Respondent
Court of Appeals exercised specific acts in an arbitrary or despotic
manner by reason of passion or personal hostility. At most,
Petitioner has sought judicial review from the Honorable Court to
settle purely legal issues, and merely to question the judgment of the
court a quo.
2
restrained the implementation of his preventive suspension for six (6)
months, Public Respondent was merely exercising its inherent Judicial
Power. Republic Act 6770 ("The 01nbudsman Act") recognizes such
power of review, when it provides that a court may issue a writ of
injunction in cases of lack of jurisdiction on the part of the Office of
the Ombudsman. 1
On the other hand, Petitioner's allegation that Public
Respondent con1mitted grave abuse of discretion a1nounting to lack
or excess of jurisdiction in requiring the Petitioner Ombudsman, who
is an impeachable officer, to comment on the Petition for Contempt
filed by Private Respondent is without inerit.
This has been made clear by the I-Ionorable Court in the case of
Philippine Guardians Brotherhood, Inc. vs. Commission on Elections
(G.R. No. 190529, 22 March 2011), where the Honorable Court found
the COMELEC (comprising of impeachable officers) guilty of indirect
conten1pt for having failed to comply with its Status Quo order.
' Section 14, RA 6770 Restrictious. - 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
fade 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.
3
..
testilnony as contemptuous of its Discovery Orders and fined him
$90,000.
COUNTER-STATEMENT OF FACTS
2 Ibid.
4
5. On 11 March 2015, Private Respondent received a copy of
the assailed Joint
. Order and on the same date filed his Petition
.
for
Certiorari with Extremely Urgent Application for Tenzporary Restraining
Order and/or Writ of Preliminary Injunction.
SO ORDERED."
5
9. On 17 March 2015, as Private Respondent's Petit-ion for
Contenzpt was on its way to being filed, Private Respondent, through
counsel, received a copy of the Manifestation filed by Petitioner in the
Petition pending before Public Respondent and docketed as CA-G.R.
SP No. 139453. A copy of the Manifestation dated 17 March 2015 was
attached as Annex "E" of Private Respondent's Amended and
Supplernental Petition for Contempt.
GROUNDS
l.
6
II.
UL
7
DISCUSSION
I.
8
office of the writ of certiorari has been
reduced to the correction of defects of
jurisdiction solely and cannot legally be
used for any other purpose.'
9
trial court exercised its power in an arbihary and despotic manner by
reason of passion or personal hostility, certiorari will not lie.
10
.
Respondent Binay cannot be removed for administrative misconduct
committed during a prior term.
11
admits on page 5, paragraph 7 of her Petition, that the issues involved
in this case are pure questions of law.
3 Julie's Franchise Corporation, et al. vs. Ruiz, et al., G.R. No. 180988, 28 August 2009.
12
\,
13
de1nandable as a matter of right, never issued
except in the exercise of judicial discretion.
Hence, he who seeks a writ of certiorari must
apply for it only in the n1anner and strictly in
accordance with the provisions of the law
and the Rules. Petitioner may not arrogate to
himself the determination of whether a
motion for reconsideration is necessary or
not. To dispense with the require1nent of filing
a 1notion for reconsideration, petitioner must
show a concrete, compelling, and valid reason
for doing so, which petitioner failed to do."
(Emphasis supplied)
14
1.20 In the instant case, it is apparent that Petitioner resorted
to the instant Petition in the hope of obtaining a more favorable action
from the Honorable Court after Public Respondent granted Private
Respondent's prayer for a temporary restraining order (TRO).
II.
15
SUPPLEMENTAL PETITION FOR
' , :. C0MTEMPT DATED 17 MARCH 2015.
16
2.4 In fact, Section 14 of RA 6770 itself provides for an
exception when courts may issue an injunctive relief, which is if
there is prima fade evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the
On1budsman. In this case, there was a prirna facie showing to
Respondent Court of Appeals that the 01nbudsman c01nmitted grave
abuse of discretion amounting lack of jurisdiction when she issued
the preventive suspension order.
17
.
and large number of respondents involved, the Petitioner
Ombudsman clearly failed to review the same and simply
lun1ped together all respondents without evaluating the
evidence against each of them, or if she even had
jurisdiction to investigate them ad1ninistratively. This
therefore puts in serious question the Petitioner
On1buds1nan' s motive in issuing the Joint Order.
18
prosecutory powers granted by the
Constitution to the Ombudsn1an but upon
practicality as well. It is within the context of
this well-entrenched policy that the Court
proceeds to pass upon the validity of the
preventive suspension order issued by the
01nbudsman.
2.7 In fact in the case of Garcia, Jr. vs. Court of Appeals, G.R.
No. 185132, 24April 2009, the Supreme Court considered the Public
Respondent Court of Appeals to have acted with grave abuse of
discretion when it failed to act on the prayer for injunctive relief
inade by Petitioner Garcia as regards his preventive suspension
order. After making such pronouncen1ent, the Supre1ne Court then
referred the matter of determination of the validly of the suspension
order to the Court of Appeals, thus:
19
immediately effective and executory, and the
filing of the comment by all of the
respondents will entail considerable time.
Xxx
20
issues. Since we are not a trier of facts,
following our disposition in Benguet
Management Corporation v. Court of Appeals, we
should re1nand this case to the CA for a
speedy resolution on the inerits." (Citations
0111itted and emphasis supplied)
21
1. Right in Esse
22
"4. The negotiation was held on 22 Noven1ber
2007 and the project was awarded to MANA
ARCI--IITECTURE & INTERIOR DESIGN CO.
(MANA) on 23 Nove1nber 2007. On 28
November 2007, MANA, represented by
Orlando M. Mateo, and the City Govern1nent
of Makati, represented by forn1er Mayor
Binay, Sr., entered into the Contract of
Architectural and Engineering Services with a
conhact ainount of Phpll,974,900.00.
xxx
PHASE III
Xxx
PHASE IV
Xxx
PHASE V
23
the conhacts cmnplained of to be irregular were executed prior to or
during Private Respondent's first term as Mayor.
24
that each term is separate fron1 other tenns,
and that the reelection to office operates as a
condonation of the officer's inisconduct to the
extent of cutting off the right to remove hiin
therefor. (43 An1. Jur. p. 45, citing Atty. Gen.
v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A.
[NS] 553). As held in Cmnant v. Bregan [1887]
6 N.Y.S.R. 332, cited in 17 A.L.R. 63 Sec. 559,
50 [NE] 553."
25
pronouncement in the case of Salalima v. Hon. Guingona et al., G.R.
No. 117589-92, May 22, 1996, thus:
26
We thus rule that any administrative liability
which petitioner Salalin1a might have incurred
in the execution of the retainer contract in O.P.
Case No. 5469 and the incidents related
therewith and in the execution on 6 March
1992 of a contract for additional repair and
rehabilitation works for the Tabaco Public
Market in O.P. Case No. 5450 are deen1ed
extinguished by his reelection in the 11 May
1992 synchronized elections. So are the
liabilities, if any, of petitioner inembers of the
Sangguniang Panlalawigan ng Albay, who
signed Resolution No. 129 authorizing
petitioner Salalima to enter into the retainer
contract in question and who were reelected in
the 1992 elections."
27
particular aspect of his life and character.
28
of Private Respondent. As such, his subsequent re-election on May
14, 2013 absolves hiln from any supposed adn1inistrative liability
committed during his first tenn.
29
2.30 It is a matter of record that Petitioner's Joint Order
expressly states that the preventive suspension of Private Respondent
was "imn1ediately executory." In fact, it is Petitioner's submission
that the TRO issued by Public Respondent was already inoot and
academic considering that the suspension order had already been
served upon Private Respondent on 11March2015.
30
')
l__
31
2.36 At the outset, it must be emphasized that Petitioner
Ombuds1nan willfully refused to comply with the Resolution dated 16
March 2015 of the Public Respondent, granting a TRO on the
preventive suspension order against Private Respondent, on the
ground that said TRO had already become inoot and academic since
the suspension or_der had already been ilnplemented.
32
2.43 In the case of Garcia vs. Mojica, G.R. No. 139043, 10
September 1999, the Supreme Court ordered the parties to maintain
the status quo until further orders fr01n it. This led Petitioner Garcia,
who was already preventively suspended then, to issue a
memorandum informing employees and officials of the Office of the
City Mayor that he was assuming the post of inayor effective
immec;liately. Respondent Deputy Ombudsman questioned the same,
arguing that the status quo referred to in the order should be that
where petitioner is already suspended and vice mayor Renatos
Osmefia.is the acting City Mayor. The Supreme Court rejected said
view, and held:
33
~
2.48 The foregoing clearly show that the TRO was not
rendered moot by the fact that Vke Mayor Pefia had been hastily
sworn in as Acting Mayor. The effect of the TRO is the preservation
of the status quo, which Petitioner knows to be the last actual
peaceable uncontested situation before the preventive suspension
34
order was issued, that is, that Private Respondent is the Mayor of
Makati City.
2.53 This has been made clear by the Honorable Court in the
case of Philippine Guardians Brotherhood, Inc. vs. Commission on
Electiolls (G.R. No. 190529, 22 March 2011), which is on all fours with
the instant case. In the said case, the l-Ionorable Court found the
COMELEC (comprising of impeachable officers) guilty of indirect
contempt for having failed to comply with its Status Quo order. In
making such finding, the Honorable Court pronounced:
11
Conte1npt of court applies to all
persons, whether in or out of government.
Thus, it covers governn1ent officials or
35
employees who retired during the pendency
of the petition for conten1pt. Otherwise, a civil
servant may strategize to avail himself of an
early retiren1ent to escape the sanctions from a
contempt citation, if he perceives that he
would be made responsible for a
contumacious act. The higher interest of
effective and efficient administration of justice
dictates that a petition for conte1npt 1nust
proceed to its final conclusion despite the
retirement of the government official or
employee, more so if it involves a former
member of the bench." (citing Curata v .
. Philippine Ports Authority, C.R. Nos. 154211-
12, June 22, 2009, 590 SCRA 214, 345;
emphasis supplied)
36
"The exercise of the power to punish for
contempt has a dual aspect, primarily, the
proper punishment of the guilty party for
his disrespect to the court, and, secondarily,
his compulsory performance of some act or
duty required of him by the court and which
he refuses to perform. Due perhaps to this
two fold aspect of the exercise of the power to
punish the1n, contempts are classified as civil
or crilninal.
xxx xx xx xx xx
37
that he intended to com1nit it. On the
contrary, there is authority indicating that
since the purpose of civil contempt
proceedings is remediaJ, the defendant's
intent in co1nmitiing the contempt is
immaterial. Hence, good faith or the absence
of intent to violate the court's order is not a
defense in civil contempt.
38
sought, or the dominant purpose, and the
proceedings are to be regarded as criminal
when the purpose is. primarily punishment,
and civil when the purpose is primarily
compensatory or remedfal.
39
instituted to preserve and enforce the rights
of a private party to an action and to compel
obedience to a judg1nent or decree intended
to benefit such a party litigant. So a
proceeding is one for civil contempt,
regardless of its form, if the act charged is
wholly the disobedience, by one party to a
suit, of a special order made in behalf of the
other party and the disobeyed order may
still be obeyed, and the purpose of the
punishment is to aid in an enforcen1ent of
obedience. The rules of procedure governing
crilninal contempt proceedings, or crilninal
prosecutions, ordinarily are inapplicable to
civil contempt proceedings. It has been held
that a proceeding for conte1npt to enforce a
remedy in a civil action is a proceeding in that
action. Accordingly, where there has been a
violation of a court order in a civil action, it is
not necessary to docket an independent action
in contempt or proceed in an independent
prosecution to enforce the order. It has been
held, however, that while the proceeding is
auxiliary to the main case in that it proceeds
out of the original case, it is essentially a new
and independent proceeding in that it
involves new issues and n1ust be initiated by
the issuance and service of new process.
40
.
a tduty. Contempt under Rule.. Tl of the Rules of Court is a special
civil action that cannot be converted into a criminal action. (Sevilla v.
Borreta, A.M. No. RTJ-04-1836, July 14, 2004)
"
"'
7A copy of the M1mifestntio11 dated 17 March 2015 is attached as Annex "E" of the l\111e11ded nlllf
S11pple111e11tnl Petitio11 for Co11telllpf
41
24. Such willful, deliberate and
contumacious acts and 01nissions of
Respondents in craftily refusing compliance
with the TRO is a patent and willful contempt
of court as it constitutes disobedience of or
:resistance to a lawful wid!, process, order, or
judgment of a court, 8 and hnproper conduct
tending, directly o't indirectly, to impede,
obstruct, or degrade the administration of
justice. 9
42
III.
3.1 In the case of Los Banos Rural Bank, Inc., vs. Pacita 0.
Africa, et. al., C.R. No. 143994, 11 July 2002, the Supre1ne Court held,
thus:
43
determination, thus:
3.7 On the other hand, as earlier pointed out, the fact that
Petitioner is an in1peachable officer does not auton1atically result in
her being exe1npt from a contempt proceeding since in conten1pt,
especially in civil contempt as in the instant case, the purpose is
1nerely to compel her to obey th'e lawful order of the courts and not
to remove her from office.
44
that where the party's right is unclear and disputed, no writ of
injunction could be issued.
PRAYER
By:
45
MARIA PATRICIA L.
Roll of Attorneys No. 49629
IBP No. 960973/Lifetime/Makati City
PTR No. 4760047 /1-8-15/Makati City
MCLE No. IV-001877 / 4-24-13/Pasig City
Copy furnished:
COURT OF APPEALS
Ma. Orosa Street,
Ermita, Manila
EXPLANATION
'
A copy of the foregoing Connnent/Opposition was served by
registered n1ail due to thne and personnel constraints.
46