This is a commentary (not really a digest) on the landmark case recently issued by the Supreme

Court En Banc, entitled Carpio Morales v. CA and Binay, Jr., G.R. No. 217126-27, 10
November 2015.
You must be familiar with this case. The media covered it really well in view of the personalities
involved (but we won’t dwell with those people here – the most you’ll get would be the title of
the case). More importantly, this case finally got rid of the pesky old condonation doctrine, albeit
in a scholarly fashion. The case tells us how the condonation doctrine came about, unraveling the
mystery behind it, and why it was subsequently upheld in several SC decisions. Let me try to
point out why you should read this case, even for leisure, to wit: (1) it has a TON of citations on
a wide range of legal topics; (2) it makes reference to foreign laws and doctrines; (3) there is a
clinical dissection of the case of Pascual v. Hon. Provincial Board of Nueva Ecija, 106 Phil. 466
(1959) (hereinafter referred to as “Pascual”) on the condonation doctrine; and (4) in true SC
fashion, the case is Solomonic innature.
Five (5) issues were discussed in this case, namely:

1. 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;
2. Whether the Court of Appeals (“CA”) has subject matter jurisdiction over the subject
matter of the petition;
3. Whether the CA has subject matter jurisdiction to issue a Temporary Restraining Order
(“TRO”) and/or a Writ of Preliminary Injunction (“WPI”) enjoining the implementation
of the preventive suspension issued by Ombudsman against Binay, Jr.;
4. Whether the CA acted in grave abuse of its discretion in issuing said TRO and WPI; and
5. Whether the CA’s directive for the Ombudsman to comment on Binay, Jr.’s petition for
contempt was improper or illegal.

In dispensing the First 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. (Emphasis supplied on
the grounds relied on by the SC in this case, in ruling that no motion for reconsideration was
needed.)
(Score: Ombudsman- 1; Binay, Jr. - 0.)
As to the Second Issue, the discussion revolved around Sec. 14 of Republic Act No. 6770,
otherwise known as the Ombudsman Act (RA 6770), more particularly its 2nd Paragraph states:
“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 orapplication for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.”
Now the SC ruled that the 2nd Paragraph of Sec. 14, RA 6770, is vague, unconstitutional and
invalid. The SC relied on its ruling in the landmark case of Fabian v. Desierto, 356 Phil. 787
(1998), which, in turn, held that the 4th Paragraph of Sec. 27, RA 6770, is void, as it had the
effect of increasing theappellate jurisdiction of the SC without its advice and concurrence,
inviolation of Sec. 30, Art. VI of the 1987 Constitution. This tells us that lawyers should always
be wary of reading RA 6770 since case law has affected itso much – maybe it’s time to update it.

Senate President Salonga (Photo credit: senate.gov.ph)

Interestingly, the SC mentioned the Senate deliberations cited by the Ombudsman, in the crafting
of RA 6770. It quoted the exchanges between Senators Jovito Salonga, Edgardo Angara,
Teofisto Guingona, Jr., and Neptali Gonzales, which merely led the SC to be suspicious on
whether said Senators were talking about Sec. 14, RA 6670, or some other provision. In other
words, while the throwback was appreciatedby the SC, the discussions were not really useful in
this case.
Regardless, the SC still ruled thatthe remedy of Binay, Jr. – the filing of petition for certiorari
pursuant to Rule 65 of the Rules of Court, to assail the Ombudsman’s preventive suspension
order – was valid, citing the cases of Office of the Ombudsman v. Capulong, G.R.No. 201643,
12 March 2014, and Dagan v.Office of the Ombudsman, G.R. No. 184083, 19 November 2013.
It’s just sad that the sorry end of Second Paragraph of Sec. 14, RA 6770 came as collateral
damage in this case. The SC justified its taking up this issue on its own motion, or ex mero motu,
which it canrightfully do, since it is, after all, the SC.
(Score: Ombudsman- 1; Binay, Jr. - 1. Bonus point goes to Sec. 30, Art. VI of the 1987
Constitution)
The Third Issue is where it starts to become more interesting.Here, the Ombudsman’s history
was discussed, citing heavily from the case of Gonzales III v. Office of the President, G.R. No.
196231 and 19232, 28 January 2014 (hereinafter referred to as “Gonzales”). You can imagine the
Ombudsman smiling from ear to ear while reading this portion, but this form of flattery should
lead one to be suspicious.
What can be picked up from the Gonzales case is that the Office of the Ombudsman’s
independence covers thefollowing: (1) it is the creation of the Constitution; (2) it enjoys
fiscalautonomy; and (3) it is insulated from executive supervision and control. Onthis basis, the
SC held that the Ombudsman was meant to be protected frompolitical harassment and pressure,
to free it from the “insidious tentacles of politics.” (Oh, what imagery does this give.) Since the
SC is apolitical, then Gonzales should not be interpreted toshield the Ombudsman from the
judicial review power of the courts. After all, there is no politics in the judiciary, right?
After the Ombudsman, it is now the SC’s turn to give an exhaustive recap of its own history.
Starting from the definition of Judicial Power, the SC went on the discuss its expanded scope
ofjudicial review enunciated in Oposa v. Factoran, G.R. No. 101083, 30 July 1993, then the
evolution of itsrule-making authority in Echegaray v. Secretary of Justice, 361 Phil. 73 (1999).
The SC pointed out that Congress, in relation to RA 6770, has no authority to repeal, alter, or
supplement rules concerning pleading, practice, and procedure, and rules allowing the issuance
of an injunction form part of the court’s inherent power, which (now, citing foreign case law)
enable the judiciary to accomplish itsconstitutionally mandated functions.
The SC ruled that Congress’ passing of the First Paragraph of Sec. 14, RA 6770, which prohibits
the issuance of an injunction, is an encroachment of the SC’s rule-making authority. An
injunction, after all, is merely a provisional and auxiliary relief to preserve rights in esse.
However, the SC noted that it has not consented to this as it has not issued rules of procedure
through an administrative circular. Thus, pending deliberation, the SC declared the First
Paragraph of Sec. 14, RA 6770, as ineffective, “until it is adopted as part of the rules of
procedure through an administrative circular duly issued therefor.” Abangan ang susunod na
kabanata.
Sec. 14, RA 6770 is now beaten and badly bruised. To sum it up: The Second Paragraph was
declared unconstitutional, and the First Paragraph was now deemed ineffective. As such,the CA
was held to have correctly issued the injunctive relief in enjoining thepreventive suspension
against Binay, Jr.
(Score: Ombudsman- 1; Binay, Jr. - 2.)
The Fourth Issue is where the condonation doctrine was taken up. To go right at it, the SC
abandoned the condonation doctrine, but ruled that the CA did not act in excess of jurisdiction in
issuing the WPI, as it did so based on good case law, considering that the abandonment is
prospective in nature.
In abandoning the condonation doctrine, the SC emphasized that this was a jurisprudential
creation that originated in the 1959 Pascual case, which was decided under the 1935
Constitution. It is notable that there was no legal precedent on the issue at that time, and the SC
resorted to American authorities. The SC stated what appears the sole basis forthe condonation
doctrine in Pascual, to wit:
The weight of authorities x x x seems to incline toward the rule denying the right to remove one
from office because of misconduct during a prior term, to which we fully subscribe.

As can be read above, it is clear that no real justification was given for the condonation doctrine,
except that “it seems to incline” towards American authorities. On this regard, the SC made its
own investigation, and found that there was really no established weight ofauthorities in the
United States (“US”). In fact, 17 States in the US have already abandoned the condonation
doctrine, as pointed out by the Ombudsman. The SC went on to adopt the findings of the
Ombudsman in US jurisprudence, with the caveat that said cases are merely “guides of
interpretation.”
Perhaps the greatest victory in this case for the Ombudsman is that it was able to convince the
SC not to adhere to stare decisis, thereby enriching Philippine jurisprudence on this matter. This
is important, as its effects are far-reaching, since we now have additional basis to petition the
abandonment of old ineffective case laws. For this moment of glory, allow us to quote directly
from the case, viz:
Therefore, the ultimate analysis is on whether or not the condonation doctrine, as espoused in
Pascual,and carried over in numerous cases after, can be held up against prevailing legal norms.
Note that the doctrine of stare decisis does not preclude this Court from revisiting existing
doctrine. As adjudged in the case of Belgica, the stare decisis rule should not operate when there
are powerful countervailing considerations against its application. In other words, stare decisis
becomes an intractable rule only when circumstances exist to preclude reversal of standing
precedent. As the Ombudsman correctly points out, jurisprudence, after all, is not a rigid,
atemporal abstraction; it is an organic creature that develops and devolves along with the society
within which it thrives. In the words of a recent US Supreme Court Decision, ‘[w]hat we can
decide, we can undecide.'
In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the
legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935
Constitution, which dated provisions do not reflect the experience of the Filipino People under
the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of course,
the sheer impact of the condonation doctrine on public accountability, calls for Pascual’s
judicious re-examination.”
The SC then proceeded to dissect Pascual, and went on to enumerate the notable cases that
applied Pascual, which included cases issued under the 1987 Constitution. Pascual was tested
under existing laws, to see if there exists legislation to support Pascual, e.g. 1987 Constitution,
Revised Administrative Code, Code of Conductand Ethical Standards for Public Officials and
Employees, Local Government Code of 1991, and Revised Rules on Administrative Cases in
Civil Service. The SC ruled:
"Reading the 1987 Constitution together with the above-cite legal provisions now leads this
Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official’s administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term
of office, or even another elective post. Election is not a mode of condoning an administrative
offense,and there is simply no constitutional or statutory basis in our jurisdiction tosupport the
notion that an official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. In this jurisdiction, liability arising from
administrative offenses may be condoned by the President in light of Section 19, Article VII of
the 1987 Constitution which was interpreted in Llamas v. Orbos to apply to administrative
offenses: xxx …"
The SC made it clear that Pascual has no statutory basis at all. By abandoning the condonation
doctrine, the SC would remove this defense oft-times used by elected officials, of which the SC
was aware of, as it made mention of the databrought forward by the Ombudsman, to wit:
“To provide a sample size, the Ombudsman has informed the Court that ‘for the period of July
2013 to December 2014 alone, 85 cases from the Luzon Office and 24 cases from the Central
Office were dismissed on the ground on condonation. Thus, in just one and a half years, over a
hundred cases of alleged misconduct – involving infractions such as dishonesty, oppression,
gross neglect of duty and grave misconduct – were placed beyond the reach of the Ombudsman’s
investigatory and prosecutorial powers.’ Evidently, this fortifies the finding that the case is
capable of repetition and must therefore, not evade review.”

(Score: Ombudsman– 2; Binay, Jr. - 2. Bonus point goes to the research team of the
Ombudsman, who painstakingly went through American jurisprudence to support their position.)
The Fifth and Final Issue on whether the order to comment directed to the Ombudsman was
illegal, was refused to be resolved on the ground there are no contempt proceedings yet. It is the
claim of the Ombudsman that since she was an impeachable officer, she could be subjected to
contempt. However, no due course has been given to the contempt action, thus, the
Ombudsman’s claim was premature.
(Score: Ombudsman – 2; Binay,Jr. -2. No points in this round.)

So there you have it! The case was Solomonic, in my opinion, as both parties walk away with
something. This review also does not do justice on how well this case was penned by Associate
Justice Estela M. Perlas-Bernabe. So please go read the case on the SC website, or just click
here.
Some final thoughts:

 Expect this case to be taken up in Constitutional law classes on judicial review, SC’s
rule-making power, and the Ombudsman as a constitutional body.
 It is interesting to wait for the SC’s future rules with regard the matter on the issuance of
injunction under Section 14, RA6770. We hope that this actually comes into fruition.
 This case may be cited by practitioners who intend to file a petition at the SC without
prior motion for reconsiderationbefore the CA.
 Lawyers with politician clients should really take note of this case, as it removes a vital
defense in administrative cases filed against them. Good thing that this is prospective in
nature.
 Bar candidates must watch out for this, as it may come out in next year’s Bar Exam in the
subject of Political Law.
 Please read, as well, the Concurring and Dissenting Opinion of Associate Justice Lucas P.
Bersamin, who concurred on the SC’s ruling on the ineffectiveness and
unconstitutionality of the First Paragraph and Second Paragraph, respectively, of Sec. 14,
RA 6770, but dissented on the revisitation on the condonation doctrine. Justice Bersamin
postulates that condonation must apply only after the conduct of anadministrative
investigation, not while such officer is undergoing investigation. As such, the CA,
according to Justice Bersamin, wrongly applied the condonation doctrine, as such, said
doctrine should not have warranted a re-examination by the SC.