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March 18, 2015

Who Wins: the Chicken or the Egg? (Suspension Order or the TRO)

The second week of the last month of the first quarter of 2015 has been a tumultuous one. With so much legal jargon being floated, people might have to pay lawyers to get to understand what is happening. Let us to try to make things simple.

First, a frustrated losing mayoralty candidate filed a corruption complaint against the father and son team of Binay and several other Makati City officials. This was filed in the middle part of 2014. In the interim, the longest Senate inquiry started and up to this writing is still ongoing.

Who-Wins--the-Chicken-or-the-EggFast forward to March 2015, the Ombudsman, in light of their investigation process, issued a preventive suspension order against the Binay group (minus the VP). Since the Ombudsman doesn’t technically execute the order, it was given to the Department of Local Government (DILG) since the latter has supervisory control of local officials. The principle of the suspension order is to prevent the accused official of using his power and influence in the office to either control witnesses, destroy evidence, or disrupt normal operations. The date of the suspension order was 10 March 2015 and the press release was on the next day. The suspension order still directed the DILG Sec Mar Roxas to implement the suspension.

Come the weekend of March 13 to March 16, 2015, Mayor Jun Binay held himself in his office protesting the suspension order. Though he didn’t officially receive the order from the DILG yet, he was NOT yet suspended. But with the media hounding everyone from here to J.P. Rizal, the mayor did what he did to protest.

On March 16, 2015, the DILG with over 2,000 police officers tried to serve the DILG suspension. Blocked by the mayor’s supporters, the only option was to post it on a wall. According to the DILG Secretary, that was constructive notice. The flaw here is that one cannot have a constructive notice if the order is a personal one. For constructive notice to be valid, there must be full attempts for personal service. But that’s another point.

With the posting on the wall, the resident Vice Mayor was sworn in as “ACTING Mayor”. Not a full mayor, but only in an acting capacity. A couple of hours later, a temporary restraining order (TRO) was issued by a division of the Court of Appeals. Now, who wins?

As explained here, a TRO is a limited status quo order maintaining or reverting back to the situation before the TRO was issued. In this case, what was sought to be stopped was the Ombudsman’s suspension order. Can it be stopped? Can the Ombudsman’s Suspension Order be suspended (pun intended)? Yes, it can. From the words of the suspension order itself. It reads:

“Notwithstanding any motion, appeal, or petition that may be filed by respondents seeking relief from this Order, unless otherwise ORDERED by this Office or BY ANY COURT OF COMPETENT JURISDICTION, the implementation of this Order shall not be interrupted within the period prescribed”.

The Court of Appeals is a court of competent jurisdiction and it used a TRO based on a petition seeking relief of the suspension order. Thus, the Court of Appeals wins.

But wait, the DILG Secretary said that since the Vice Mayor was sworn in as ACTING Mayor, the TRO is without effect. But as every Civil Procedure law student will tell him, the TRO is an order requiring a party or agency to refrain from the continuance of the act (suspension). The TRO reverts the situation back to the status quo. Therefore, the TRO theoretically restored the circumstances back to its original state, that is the mayor being the mayor.

In conclusion, whatever the DILG Secretary or the DOJ Secretary will muster up to explain they are right, it will be moot because the suspension order of the Ombudsman allowed itself to be refrained from continuance if a TRO was indeed issued.

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One Comment on “Who Wins: the Chicken or the Egg? (Suspension Order or the TRO)”

  • Politics, Without Politics How Will Our Lives Be? — 365 Moments says June 24, 2015 at 2:32 pm

    […] The Mayor of Makati, who happens to be the Vice President’s son, refuses to accede to the suspension order given by the Office of the Ombudsman. Mayor Junjun Binay was able to get a TRO right after the Vice Mayor was sworn in. What does this mean? This article by Atty. Rod Vera answers that question. […]

 


 

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