CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE

OMBUDSMAN
v.
COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR ERWIN
S. BINAY, JR.

G.R. Nos. 217126-27, November 10, 2015

PONENTE: PERLAS-BERNABE, J.:

FACTS:

A complaint was filed against Binay and other public officers of the
City Government of Makati charging them with administrative cases
for Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial
to the Best Interest of the Service, and criminal cases for violation of
RA 3019, Malversation of Public Funds, and Falsification of Public
Documents. Binay, Jr. was alleged to be involved in anomalous
activities attending the procurement and construction phases of the
Makati Parking Building project, committed during his previous and
present terms as City Mayor of Makati. The Ombudsman issued a
preventive suspension order, placing Binay Jr., et al., under
preventive suspension for not more than six (6) months without pay,
during the pendency of the OMB Cases. Binay, Jr. filed a petition for
certiorari before the CA seeking the nullification of the preventive
suspension order.

The CA granted Binay, Jr.'s prayer for a TRO, notwithstanding

Peña, Jr.'s assumption of duties as Acting Mayor. Citing Governor
Garcia, Jr. v. CA, it found that it was more prudent on its part to issue
a TRO in view of the extreme urgency of the matter and seriousness
of the issues raised, considering that if it were established that the
acts subject of the administrative cases against Binay, Jr. were all
committed during his prior term, then, applying the condonation
doctrine, Binay, Jr.'s re-election meant that he can no longer be
administratively charged.
Binay’s contention:

a) Phases I and II were undertaken before he was elected

Mayor of Makati in 2010; and Phases III to V transpired during his
first term and that his re-election as City Mayor of Makati for a second
term effectively condoned his administrative liability therefor, if any,
thus rendering the administrative cases against him moot and
academic.

b) In view of the condonation doctrine, as well as the lack of

evidence to sustain the charges against him, his suspension from
office would undeservedly deprive the electorate of the services of
the person they have conscientiously chosen and voted into office.

The Ombudman’s contentions:

a) The condonation doctrine is irrelevant to the

determination of whether the evidence of guilt is strong for purposes
of issuing preventive suspension orders.

b) Reliance on the condonation doctrine is a matter of

defense, which should have been raised by before it during the
administrative proceedings.

c) There is no condonation because Binay, Jr. committed

acts subject of the OMB Complaint after his re-election in 2013.

ISSUE:

Whether the Petition filed before the SC, without resorting to

the filing of a motion for reconsideration, was the Ombudsman’s
plain, speedy, and adequate remedy

RULING:

A common requirement to both a petition for certiorari and a

petition for prohibition taken under Rule 65 of the 1997 Rules of Civil
Procedure is that the petitioner has no other plain, speedy, and
adequate remedy in the ordinary course of law. Sections 1 and 2
thereof provide:
Section 1. Petition for certiorari. - When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

Section 2. Petition for prohibition. - When the proceedings of

any tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in excess
of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any other
plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts r with certainty and praying that
judgment be rendered commanding the respondent to desist from
further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may
require.

In dispensing the issue, the SC ruled that the Ombudsman’s

petition falls under the exceptions that a prior motion for
reconsideration must be filed, citing the case of Republic v. Bayao,
G.R. No. 179492, 5 June 2013, which held as follows:

(a) where the order is a patent nullity, as where the court a quo
has no jurisdiction;

(b) where the questions raised in the certiorari proceedings

have been duly raised and passed upon by the lower court, or are the
same as those raised and passed upon in the lower court;

(c) where there is an urgent necessity for the resolution of the

question and any further delay would prejudice the interests of the
Government or of the petitioner or the subject matter of the action is
perishable;

(d) where, under the circumstances, a motion for

reconsideration would be useless;

(e) where petitioner was deprived of due process and there is

extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial court is improbable;

(g) where the proceedings in the lower court are a nullity for
lack of due process;

(h) where the proceedings were ex parte or in which the

petitioner had no opportunity to object; and

(i) where the issue raised is one purely of law or where public
interest is involved.