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First term (2010-2013)

November 10, 2015 | Perlas-Bernabe, J. | Condonation Doctrine i. On Sept. 21, 2010, issued Notice of Award for Phase III
of the project to Hilmarc’s Construction, and
consequently, executed corresponding contracts, without
PETITIONER: Conchita Carpio-Morales in her capacity as Ombudsman the required publication and lack of architectural design,
RESPONDENTS: CA, 6th Division and Jejomar Erwin S. Binay, Jr. and approved release of funds therefor;
ii. On August 11, 2011, the same was done (but for Phase
SUMMARY: Binay, Jr. et al. was accused of the crime of plunder and violation of IV); and
the Anti-Graft and Corrupt Practices Act in a complaint filed before the OMB. iii. On August 11, 2011, the same was done (but for Phase
OMB’s investigation led to filing 6 criminal and 6 administrative charges. OMB V).
alleged that Binay, Jr. was engaged in anomalous activities attending the b. Second term (2013-2016)
procurement and construction of the Makati Parking Building Project committed i. On July 3 and 4, 2013 approved release of funds for the
during his previous and present terms as city mayor of Makati (2010-2013 and remaining balance of the contract with Hilamrc’s fro
2013-2016, respectively). The OMB issued a preventive suspension order, and was Phase V;
enforced against Binay, Jr. In response, Binay, Jr. filed a petition for certiorari ii. On July 24, 2013, approved the release of funds for the
before the CA asking for the nullification of the order and prayer for TRO and/or remaining balance of the contract for the design and
WPI. CA granted the TRO and WPI on the basis of the condonation doctrine. architectural services.
Hence, the petition before the SC. The SC ruled that the condonation doctrine is 4. The OMB created another Special Panel of Investigators to conduct
bereft of any legal basis in our jurisdiction. preliminary investigation and administrative adjudication on the OMB
DOCTRINE: The Condonation Doctrine is bereft of any legal bases (Constitutional cases.
and statutory). 5. On March 10, 2015, OMB issued the subject preventive suspension
order, placing Binay, Jr. et al. on preventive suspension. The OMB ruled
The doctrine of stare decisis does not preclude the Court from revisiting existing that: (a) evidence of Binay, Jr. et al.’s guilt is strong; (b) Their continued
doctrine. The stare decisis rule shall not operate when there are powerful stay in office may prejudice the investigation relative to the OMB cases.
countervailing considerations against its application. Jurisprudence, after all, is not 6. Consequently, the OMB directed the DILG through Sec. Roxas to
rigid, atemporal abstraction; it is an organic creature that develops and devolves immediately implement the order. Sec. Roxas caused the implementation of
along with the society within which it thrives. the said order. A copy of the said order was posted on the wall of the
Makati City Hall after failing to serve it personally as the points of entry to
the city hall were closed.
7. Binay, Jr. filed a petition for certiorari before the CA seeking for the
nullification of the preventive suspension order and with a prayer for the
issuance of a TRO and/or WPI to enjoin its implementation. Binay, Jr.
1. A complaint/affidavit was filed by Atty. Bondal and Enciso VI before the
primarily argued that he could not be held administratively liable on
OMB against Binay, Jr. and other public officers and employees of the
the basis of the condonation doctrine.
City of Makati (Binay, Jr. et al.), accusing them of Plunder and violation
8. CA issued the following resolutions:
of R.A. 3019 (The Anti-Graft and Corrupt Practices Act).
a. Mach 16, 2015 Resolution: granting the prayer for TRO;
2. OMB conducted a fact-finding investigation, and as a result the Special
b. April 6, 2015 Resolution: granting the prayer for WPI, enjoining
Panel of Investigators filed a complaint against Binay, Jr. et al. charging
the implementation of the preventive suspension order.
them with 6 administrative and 6 criminal cases for violating R.A. 3019. c. Hence, the petition before the SC.
3. The OMB complaint alleged that Binay, Jr. was involved in anomalous
activities attending the procurement and construction phases of the Makati
ISSUE: Whether the CA gravely abused its discretion in issuing the TRO and
Parking Building Project, committed during his previous and present
eventually, the WPI enjoining the implementation of the preventive suspension order
terms as City Mayor of Makati: against Binay, Jr. based on the condonation doctrine. (NO, but the doctrine was
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RULING: - Similarly, April 6, 2015 CA Resolution (directed issuance of assailed WPI)
WHEREFORE, the petition is PARTLY GRANTED . Under the premises of this was based on the condonation doctrine citing the case of Aguinaldo v.
Decision, the Court resolves as follows: Santos. The CA held that Binay, Jr. has an ostensible right to the final relief
xxx xxx xxx prayed for (i.e., the nullification of the preventive suspension order, finding
(b) The condonation doctrine is ABANDONED, but the abandonment is that the Ombudsman can hardly impose preventive suspension against
PROSPECTIVE in effect; Binay, Jr. given that his re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous activities
relative to the Makati Parking Building project from 2007 to 2013.
RATIO: Moreover, the CA observed that although some of the alleged acts were
RE: CONDONATION DOCTRINE AS BASIS OF CA’s INJUNCTIVE WRITS committed beyond his previous term (i.e alleged payments on July 4, and
a. Subject matter of CA’s injunctive writs is the preventive suspension 24, 2013), still Binay, Jr. cannot be held administratively liable based on
order the cases of Salalima v. Guingona, Jr., and Mayor Garcia v. Mojica,
- A preventive suspension is not a penalty but only a preventive measure. wherein condonation doctrine was applied although payments were
- Its purpose is to prevent the official (accused) from using his position made after the official’s election (for the current term), reasoning that
and the powers and prerogatives of his office to influence potential the payments were merely effected pursuant to contracts executed
witnesses or tamper with records which may be vital in the prosecution before such re-election.
of the case against him - The SC said (though not yet ruling on whether to adhere or not to the
- Section 24 of RA 6770 sets forth two (2) conditions that must be condonation doctrine) CA was not precluded from considering the
satisfied to justify the issuance of an order of preventive suspension condonation doctrine since it was based on subsisting jurisprudence.
pending an investigation, namely:
o (1) The evidence of guilt is strong; and c. Origin of the Condonation Doctrine
o (2) Either of the following circumstances co-exist with the - Condonation has been defined as a victim’s express or implied
first requirement: (a) The charge involves dishonesty, forgiveness of an offense, especially by treating the offender as if there
oppression or grave misconduct or neglect in the had been no offense.
performance of duty; (b) The charge would warrant - The said doctrine –which connotes in the same sense the complete
removal from the service; or (c) The respondent's extinguishment of liability – is not based on statutory law, but is a
continued stay in office may prejudice the case led against jurisprudential creation (originating from the 1959 case of Pascual
him v. Hon. Provincial Board of Nueva Ecija under the 1935
- The preventive suspension shall continue until the case has terminated Constitution).
by the OMB but not more than 6 months, without pay, except when the o In the Pascual case the Court recognized that there was no legal
delay in the disposition of the case by the OMB is due to the fault, precedent on the issue at that time, so the Court resorted to
negligence or petition of the respondent. American authorities. It also recognized that cases from said
jurisdiction were conflicting due to the differences in statutes and
b. Basis of CA’s injunctive writs is the condonation doctrine constitutional provision, and partly on the divergence of views
- OMB’s non-compliance with the requisites of Sec. 24 (RA 6770) was with respect to the matter. Without going into the variables of
not the basis for the issuance of the assailed injunctive writs. these conflicting views the Court ruled that “the weight of
- It was the ruling in the case of Governor Garcia, Jr. v. CA that served authorities xxx seems to incline toward the rule denying the
as basis for the issuance of the assailed March 16, 2015 CA Resolution right to remove one from office because of misconduct during a
(granting Binay’s prayer for TRO). The ruling in Governor Garcia, prior term, to which we fully subscribe.”
Jr. states: "if it were established in the CA that the acts subject of the - The Court found this conclusion in Pascual problematic as it
administrative complaint were indeed committed during petitioner uncovered that there is really no established weight of authority in
[Garcia's] prior term, then, following settled jurisprudence, he can no the US favoring the said doctrine. At least, 17 states in the US have
longer be administratively charged." abandoned the condonation doctrine.

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- The OMB aptly demonstrated how the doctrine is not uniformly - Notable cases after Pascual:
applied across all state jurisdictions: o Lizares v. Hechanova – first applied the condonation doctrine
o It has been widely recognized that the propriety of removing a citing Pascual;
public officer from his current term or office for misconduct which o Ingco v. Sanchez et al. – clarified that the doctrine does not apply
he allegedly committed in a prior term is governed by the language to criminal cases;
of the statute o constitutional provision applicable to the facts of a o Aguinaldo v. Santos – decided under the 1987 Constitution.
particular case (e.g. Texas statute allows removal only for act Condonation doctrine was applied although re-election merely
committed during present term; SC of Oklahoma allows removal supervened the pendency of the proceedings;
for act or omission committed during the previous or preceding o Salalima v. Guingona – reinforced the doctrine by stating that the
term; and some states’ statutes were silent or unclear). same is justified by sound policy;
o Condonation depended on whether or not public officer was o Mayor Garcia v. Mojica - stated that as long as contract was
successor in the same office for which he has been administratively entered into during prior term, acts done to implement the same
charged. This is the “own-successor theory”, which is recognized (done during the succeeding term) do not negate the application of
in numerous States as an exception to the condonation doctrine. the doctrine;
Each term of re-elected incumbent is not regarded as separate and o Salumbides, Jr. v. Office of the Ombudsman – doctrine may be
distinct, but rather, regarded as one and continuous. applied even if the administrative complaint was not filed before
o Some States took into consideration the continuing nature of the the reelection, and even if the alleged misconduct occurred four
offense (e.g. a public officer charged with malversation was denied days before elections (wth diba); and
the defense of condonation because the large sum is still retained o Governor Garcia, Jr. – it would have been prudent for the
by him). appellate court to have issued the TRO against preventive
- At any rate, the US cases are only persuasive in the Court’s decision- suspension in light of the condonation doctrine.
- The doctrine of stare decisis does not preclude the Court from revisiting Court’s observation on cited cases: basis of condonation was and still the
existing doctrine. The stare decisis rule shall not operate when there are postulates of Pascual. Legality of such doctrine was never tested against
powerful countervailing considerations against its application. existing legal norms.
- Jurisprudence, after all, is not rigid, atemporal abstraction; it is an
organic creature that develops and devolves along with the society - As stated, Pascual was decided under the context of the 1935 Constitution
within which it thrives. which was silent with respect to public accountability, or of the nature
- Considering the foregoing, the Court recognized that since the time of of public office being a public trust (closest provision was Sec. 2, Art. II:
Pascual, the legal landscape has radically shifted. The case was decided “the defense of the State is a prime duty of government and in the
under the 1935 Constitution (which did not reflect the experiences of fulfillment of this duty all citizens may be required by law to render
Filipinos under the 1973 and 1987 Constitutions). All these call for the personal military or civil service”).
judicious re-examination of Pascual. - 1973 Constitution - approach on dealing with public officers changed
d. Testing the Condonation Doctrine o Inclusion of an entire article for accountability of officers (Art
- Pascual’s ratio: XIII). Sec. 1 thereof states: “public office is a public trust.”
o Each term is separate and distinct. Penalty may not be extended Accordingly, “public officers and employees shall serve with the
beyond the term in which the public officer was elected. highest degree of responsibility, integrity, loyalty and efficiency,
o Re-election to office serves as a condonation of previous and shall remain accountable to the people.”
misconduct. - Post- martial law rule - Under the 1986 Constitution it was set forth in the
o Courts may not deprive the electorate of their right to elect an Declaration of Principles and State Policies: “the State shall maintain
officer (for it is assumed that they know the life and character of honesty and integrity in the public.” This is an overarching reminder that
the candidate). every instrumentality of government should exercise their official functions
only in accordance with the principles of the Constitution which embodies
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the parameters of the people's trust. The notion of a public trust connotes - In fact, Sec. 40(b) of the LGC precludes condonation since in the first
accountability. (Belgica) place, an elective official who is meted with the penalty of removal could
- The same mandate was found in Revised Administrative Code and also in not be re-elected to any elective post.
the Code of Conduct and Ethical Standards for Public Officials and - The Court finds infirm the presumption in Pascual that the electorate in re-
Employees. electing an official are assumed to have full knowledge of his life and
- For local elective officials, like Binay, Jr., the grounds to discipline, character (for there is no statute or procedural rule that supports it). It is
suspend or remove an official are stated in Section 60, of R.A. 7160 (Local contrary to human experience, for most corrupt acts are shrouded in
Government Code of 1991): secrecy and are easily covered up, and is almost always unknown to the
electorate. Thus, there could be no condonation of an act that is
(a) Disloyalty to the Republic of the Philippines; unknown.
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or e. On CA’s alleged abuse of discretion
dereliction of duty; - The injunctive writs were issued on the basis of settled jurisprudence
(d) Commission of any offense involving moral turpitude or an offense
punishable by at least prision mayor;
supporting the condonation doctrine, which at that time, remained “good
(e) Abuse of authority; law”. Therefore, CA cannot be said to have gravely abused its discretion.
(f) Unauthorized absence for fifteen (15) consecutive working days,
except in the case of members of the sangguniang panlalawigan,
sangguniang panlunsod, sanggunian bayan, and sangguniang
(g) Application for, or acquisition of, foreign citizenship or residence or
the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.

- Related also to this provision is Section 40(b) of the LGC which states that
those removed from office as a result of an administrative case shall be
disqualified from running fron any elective local position.
- In the same sense, Section 52 of the Revised Rules on Administrative
Cases in the Civil Service (RRACCS) provides that the penalty of
dismissal from service carries the accessory penalty if perpetual
disqualification from holding public office.
- In contrast, Section 66(b) of the LGC states that the penalty of suspension
shall not exceed the unexpired term of the elective local official nor
constitute a bar to his candidacy for as long as he meets the qualifications
required for the office. BUT, nothing therein states that the
administrative liability therefor is extinguished by the fact of re-
- Reading the Constitution together with the cited legal provisions leads
this Court to the conclusion that the condonation doctrine is
- Public office is a public trust and the corollary requirement of
accountability to the people at all times is inconsistent with the
condonation doctrine. Election is NOT a mode of condoning an
administrative offense (for there is no constitutional or statutory basis to
support such notion).

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