Wednesday, April 29, 2015

NO MORE FORGIVE AND FORGET: It’s about time the Condonation by Re-election doctrine is overturned

By Siesta-friendly

Misgivings about the SC doctrine of condonation (by re-election), a ruling exemplified in Aguinaldo vs Santos (G.R. No. 94115, August 21, 1992)
, have arisen again thanks to Makati City Mayor Junjun Binay’s argument that the Ombudsman’s preventive suspension order against him was wrong because his alleged acts of misconduct occurred in his previous term and was thus condoned once he was re-elected.

The Condonation doctrine

By the way, the Philippine cases on which Aguinaldo vs Santos is based - Pascual v. Provincial Board of Nueva Ecija (L-11959, October 31, 1959) and Lizares v. Hechanova, et al., (G.R. No. L-22059, May 17, 1966) -  were decided before the 1987 Constitution so we chose not to discuss these cases as they were held long before the present Constitution and its stronger language on a public official’s accountability became effective.

There have been other condonation cases post-1987 that have been based on the Pascual and Lizares rulings, but we are choosing Aguinaldo vs Santos as this ruling is the first one held post-1987 and is oft-cited, plus the decisions are all basically the same anyway, i.e., re-election means the condonation of an administrative offense done by the re-elected official during his previous term.

Aguinaldo vs Santos

In March 19, 1990, in an administrative case against Cagayan Governor Rodolfo E. Aguinaldo, the Secretary of Local Government found the governor guilty of disloyalty to the Republic - for involvement in the failed December 1989 coup d'etat - and ordered his dismissal.

Mr. Aguinaldo went to the Supreme Court and filed a petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, questioning the decision of the Secretary of Local Government.

While the SC case was pending, Mr. Aguinaldo filed his certificate of candidacy for the May 11, 1992 elections to run again for the governorship.  On May 9, 1992, petitions for disqualification were filed against him with the COMELEC, and the COMELEC ordered his disqualification.   In May 14, 1992, the SC issued a TRO against the COMELEC to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the SC disqualification case.  The TRO, in effect, allowed the canvassing of the votes and returns in Cagayan.  The SC also ordered COMELEC not to proclaim a winner until the SC’s decision.  Later, the SC annulled COMELEC’s May 9, 1992 resolution because the disqualification case was still pending before the SC.  Eventually, Mr. Aguinaldo won by a landslide which led to his being proclaimed governor.

The SC then held that Mr. Aguinaldo’s “re-election to the position of Governor of Cagayan has rendered the administration case pending before Us moot and academic.” (So convenient, no?)

In ruling that –

“a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefore.”

the SC cited the following US and Philippine rulings, to wit:

“The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553.”

“The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57 SCRA 163 [1974])”

It is peculiar that the post-1987 cases on condonation by re-election do not involve a discussion of the provisions of the 1987 Constitution on the accountability of public officers and the apparent conflict between the doctrine and the 1987 Constitution.

The Condonation doctrine vs the 1987 Constitution

Clearly, the condonation doctrine does not uphold the following Constitutional directives on the public accountability of public officials.

Public Accountability

“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; act with patriotism and justice, and lead modest lives.”

“The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.”

Powers of the Ombudsman

In addition, the condonation doctrine hampers the Ombudsman from exercising his/her constitutionally-mandated powers to make public officers accountable to the people.

“The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.”

The Condonation doctrine vs the Local Government Code

While we’re at it, we might as well add that the condonation doctrine prevents the removal of an elective official as provided in the Local Government Code’s provisions on Disciplinary Actions.

“Grounds for Disciplinary Actions. – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

(a)   Disloyalty to the Republic of the Philippines;
(b)   Culpable violation of the Constitution;
(c)    Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d)   Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;
(e)   Abuse of authority;
(f)     Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;
(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.

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.”

The condonation doctrine is indefensible without Pascual vs. Provincial Board of Nueva Ecija.   The doctrine has no constitutional nor statutory basis.  In fact, it runs counter to significant constitutional and statutory provisions meant to protect the public from erring public officials.

Remember –

·         The Constitution said “public officers and employees must, at all times, be accountable to the people” and NOT “public officers and employees must, only during their current term of office, be accountable to the people”.

·         The Constitution said “public officers and employees must, at all times, be accountable to the people” and NOT “public officers and employees must, at all times, be accountable only to the people who voted for them”.

It’s about time the Supreme Court gets with the program long set by the Constitution and by law. If a public official violates his oath of office, then he should be properly punished.  At best, allow only the President, under his/her Constitutionally-granted pardon powers to condone the offense.  No one else has been granted, by Constitution or statute, the power to pardon.