Get real
Philippine Daily Inquirer, 18 April 2015


Say you are an elected public official. You are committing acts of graft and corruption and robbing your constituents blind, but no one has caught on yet, so you haven’t been charged. Your term ends. You get reelected.

According to the doctrine of condonation, as viewed by our Supreme Court, your reelection has wiped the slate clean. You are home free. No administrative charges can any longer be brought against you for what you did in the previous term. Why? Because the Supreme Court assumes that the electorate had full knowledge of your misdeeds when it cast its votes and still voted you back. Vox populi, vox dei—something like that.

Adding grist to the condonation mill, the Supreme Court also says (although 37 years later) that condonation is “sound policy,” because it protects the reelected official from being “hounded” by his political enemies during his new term.

So if you have any smarts, even if the Ombudsman gets wind of what you are doing, or charges are brought against you during your term, all you have to do is delay the proceedings (not hard, given our justice system), so you can run for reelection. If you win, again you are home free. The condonation doctrine applies.

The message, therefore, that this condonation doctrine as interpreted by our Supreme Court sends out to all elective public officials (over 400,000) in this country is: Enjoy yourself, make hay, but also make sure you are reelected, and your infractions will be condoned. Think of the cycle that produces: Official makes hay, spends some of that on reelection, so he/she can make more hay and be reelected again, ad infinitum. Think of the increase in corruption and vote-buying that engenders. And if the people get screwed, as they surely will, that is of no moment to the Supreme Court, because it assumes that the people know what their errant officials are doing.

Is this crazy or what?

Yet, it is this doctrine that is the basis of the Court of Appeals’ decision to disallow the Ombudsman’s order for the preventive suspension of the mayor of Makati, and that is being discussed in the Supreme Court in connection with the same case. (By the way, may I ask: Why was Justice Presbitero Velasco so active in the oral arguments in Baguio City? Hadn’t he recused himself in the case against Elenita Binay?)

I think it is high time the Supreme Court reexamined its stand on this condonation doctrine. Why?

First, because its current stand condoning public officials’ actions as long as they get reelected appears to be in direct opposition to the 1987 Constitution’s mandate, as expressed in any number of provisions, such as: “The prime duty of the government is to serve and protect the people,” “the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption,” and “public office is a public trust…. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency and act with patriotism and justice and lead modest lives.” (emphasis supplied)

Second, it would seem that this condonation doctrine, which was copied from the United States, was copied erroneously. The Supreme Court justices, and also the interested Reader, should read Miguel U. Silos, “A Reexamination of the Doctrine of Condonation of Public Officers,” 84 Phil. L.J., 2009, for an excellent and exhaustively researched treatise on the subject.

In his Philippine Law Journal article, Silos quotes from the precedent-setting Supreme Court decision in the 1959 Pascual case (as a reminder, this case was under the 1935 Constitution, which, unlike the 1987 Constitution, has no express policy toward public office): “In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting… The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term to which we fully prescribe.”

Except that it seems there was a misreading on the part of the ponente, because there really was no “weight of authority.” Silos quotes from the same source that the Supreme Court decision cites: “It cannot apparently be said that there is a decided weight of authority on either side of the question…. As will be seen from this annotation, the cases, numerically considered, are nearly evenly divided.”

So, the Supreme Court erred.

There’s more: Silos states that under US jurisprudence, there is an accepted exception to the rule on condonation, and that is the situation where an incumbent is reelected into the same office! This is known as the “own-successor” theory, and “this exception has been accepted even by courts that have habitually ruled in favor of condonation.” Here, the weight of authority truly applies.

Therefore, had the Supreme Court done its homework properly in 1959, there would be no question that there are pros and cons to condonation, and the rule cannot be applied as simplistically as has been done in the Philippines. And even if that doctrine were accepted with open arms, it would be clear that under the own-successor exception, the Binay case does not qualify for condonation.

In the words of Silos, the Supreme Court in the Pascual case decided to adopt a doctrine that had not been decided with authority in the United States, whence it came, and ignored a very important exception to the doctrine—where a public official succeeds himself. And it has ended up protecting public officials rather than the public.