Get real
Philippine Daily Inquirer, 21 November 2015


Well, the Supreme Court has reexamined its stand on the condonation doctrine and found it wanting. The condonation doctrine (see my column of April 18), adopted in 1959, says that if you are a public official and have committed misdeeds, your reelection wipes the slate clean because it is assumed (heroically) that the electorate had full knowledge of your misdeeds when they cast their votes, and they still voted you back. No administrative charges can be brought against you.

This was the defense of Junjun Binay against Ombudsman Conchita Carpio Morales’ order suspending him as mayor of Makati, and this is the basis of the Court of Appeals’ decision granting a temporary restraining order (or was it a writ of preliminary injunction?) that he sought. Morales would have none of it, and she rushed to the Supreme Court for succor, pointing out the silliness of the doctrine, because, after all, “most corrupt acts by public officers are shrouded in secrecy and concealed from the public.”

While she was at it, she also cited Republic Act No. 6770 (the Ombudsman Act of 1989):  “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 prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

So why, Morales asked the Supreme Court, is the CA raining on her parade? Understand, Reader, that this is a lay version of what went on. As I have said repeatedly, I am no lawyer but I do understand English.

Well, the Supreme Court did give her succor, by striking down the condonation principle, agreeing with her that: “Misconduct committed by an elective official is easily covered up, and is almost unknown to the electorate when they cast their votes.” Duh. Remember, Reader, it took the high court 56 years to accept this reality.

But it could be a pyrrhic victory for Morales, with regard to the Binay case. Because the Supreme Court said its abandonment of the doctrine should be prospective in application. If that is interpreted to apply to all ongoing cases—in other words, not yet decided—that is fine. But if it applies to all cases brought up after Nov. 10, 2015 (when the decision was promulgated), we are done for. That depends on the high court. I hope it takes the high road, because for it to say that prior to its abandonment, the condonation principle should be recognized as a “good law,” is the outside of enough. We should not accept that doctrine one minute longer than necessary.

Besides which, if you can imagine, the Supreme Court (not this one) stretched the doctrine beyond all recognition. Not only did it not realize that the “own-successor theory” is an exception to the principle (meaning that if you are reelected to the same office, the condonation doctrine does not apply, so Binay should not have been able to use it as a defense), but somehow, acts performed after reelection connected to whatever misdeed was done before reelection are also condoned!

Which is why Binay claims that the acts he performed in 2013 after his reelection should be condoned, even if, as the Ombudsman’s investigation shows, they were made in disregard of existing rules of the Commission on Audit. It makes your head spin, how the judiciary can rationalize.

Do you know how many cases—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 by this condonation doctrine? Well, from July 2013 to December 2014, there were 109 such cases.

In connection with this, as I earlier mentioned, the Ombudsman also brought to the Supreme Court’s attention Section 14 of the Ombudsman Act, presumably because what Binay and the CA were doing went against it.  What the Ombudsman wanted essentially was independence from the judiciary other than the high court. And why not?  RA 6770, she said, insulates her from judicial intervention, particularly from injunctive relief traditionally obtainable from courts. These work, according to her, just as effectively as direct harassment or political pressure would. Doesn’t that strike a sympathetic bell?

How did the Supreme Court react? My goodness. It said that the second paragraph of Section 14 was unconstitutional, while the policy against the issuance of provisional injunctive writs by courts other than itself to enjoin an investigation conducted by the Office of the Ombudsman (under the first paragraph) is declared ineffective, until the high court corrects the situation.

The Supreme Court apparently thinks that the Ombudsman’s independence is only from the executive branch, and not from the judiciary. Good grief. Why? Because “courts are apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to all.” Hello! Where have these justices been? Don’t they remember the scandals in the CA, don’t they remember the high court’s directives to the regional trial court judges to be more sparing in their use of TROs?  How can they act so holier-than-thou?

Does this jibe with or detract from the constitutional provisions that give the Ombudsman awesome powers and responsibilities, as protector of the people, in order to ensure that “public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency…”?  What do you think, Reader?