Three legal eagles are one in saying that Makati City Mayor Jejomar Erwin “Junjun” Binay Jr. is not yet barred from invoking the condonation doctrine in questioning his dismissal by the Office of the Ombudsman because the Supreme Court decision abandoning the doctrine is prospective and would apply only in future cases.
Former Integrated Bar of the Philippines president Vicente Joyas, former University of the East law dean Amado Valdez and former University of the Philippines law dean Pacifico Agabin on Sunday said that Binay may still question the dismissal order of the Ombudsman last month and take back the mayoralty post by invoking the doctrine, which condones administrative liability of reelected officials for acts committed in previous term.
“He can still invoke the doctrine if the decision of his dismissal is premised on the non-application of the doctrine and Junjun invoked it in that case,” Joyas stressed.
Concurring with the opinion of Joyas, Valdez said the importance of pointing out the “prospective” nature of the recent SC decision abandoning the condonation doctrine, as opposed to being “retroactive.”
According to the law dean, the alleged illegal acts against Binay supposedly happened before the doctrine was struck down by the high court.
“[Being prospective only] means it will only apply on cases committed after the decision. So Binay can still invoke the doctrine,” Valdez said.
Agabin shared Valdez’s view, saying “Yes, he can still invoke the doctrine.”
The legal experts’ statements disputed the opinion of SC spokesman Theodore Te, who believed that Binay could no longer invoke the doctrine against his dismissal, which stemmed from the same charges related to the Makati parking building.
The SC official said that abandonment of the doctrine, as stated in the ruling, would apply in future cases, including possible actions of Binay in questioning his dismissal from government service.
The Ombudsman earlier issued preventive suspension orders against Binay over alleged overpricing in the construction of the Makati City Hall Building II and the Makati City Science High School.
Insisting he could not be administratively charged, Binay invoked the condonation doctrine, which clears a public official of any administrative liability in the past if he or she is reelected. Binay served as mayor in 2010 and was reelected in 2013.
Just the same, the Ombudsman ended up dismissing Binay last month over the Makati City Hall Building II case.
Binay has already filed a motion for reconsideration before the anti-graft body.
But Joyas remained confident that “the dismissal decision may still be reversed” because of the condonation doctrine.
“The Ombudsman should make an inventory of cases in which it disregarded the doctrine and make a deeper look especially when motions for reconsideration are pending in the light of the recent SC decision,” he said.
“They will be doing justice to the officials who were dismissed or suspended in disregard of the doctrine,” he added.
Valdez went as far as to question the Ombudsman’s authority in imposing the penalty of perpetual disqualification.
“I think the more important legal question is whether the Ombudsman can impose it on elective officials,” said Valdez.
“My position is that since it is penal in nature, only the courts can impose dismissal and perpetual disqualification as well,” he added.
Valdez urged Binay to question the Ombudsman’s authority before the Supreme Court and seek an injunction so he can reassume his post once his six-month preventive suspension gets served.
“Definitely, the Ombudsman order created legal obstacles that have to be resolved,” said Valdez.
In its ruling, the SC held that the condonation doctrine, which became part of Philippine jurisprudence in 1959 upon ruling also of the high court, should be abandoned for lack of basis in the 1987 Philippine Constitution and law. The majority, however, ruled that the application of the abandonment should be prospective.
Three justices – Associate Justices Lucas Bersamin, Jose Perez and Teresita Leonardo – De Castro – dissented to this opinion, saying there was no need to decide on the constitutionality of the doctrine in the Binay case.
They said the condonation doctrine was misapplied in the Binay case by the CA in the first place, saying it could only be applied upon decision of the Ombudsman on the administrative case against the mayor.
“This controversy does not call for the revisit of the doctrine, and does not warrant its eventual abandonment. For the Court to persist in the re-examination, as it does now, and to announce its abandonment of the doctrine despite the lack of the premise of justiciability is to indulge in conjecture or in unwarranted anticipation of future controversies,” read the concurring and dissenting opinion penned by Bersamin.