(Special to Philippine Commentary on the Makati Crisis)
Someday, superb minds and moral men like Alan F. Paguia will make honorable and admirable the institutions of the law and the ideology of democracy and liberty. For it is in the impartial fire of cold reason, in the crucible of logic, that the Law forges the metal of its Iron Sword of Justice for its chivalrous Knights, those who wield it with true hearts and sure hands, an aristocracy of the mind that survives regimes, constitutions, and even injustice. A dedication to the rule of law is a dedication to its inexorable reason.
Executive Secretary Eduardo R. Ermita’s preventive suspension order against Makati City Mayor Jejomar C Binay, dated October 16, 2006, is illegal and, therefore, void on its face.
First. Under Section 63 (a1) of the Local Government Code of 1991 (RA 7160), preventive suspension may be imposed “by the President”, not “by the Executive Secretary” and not “by the Office of the President”. The law is clear and specific. It confers the authority on the person of “the President”. In other words, the exercise of the authority requires the personal attention of “the President”. The Executive Secretary has no authority under the law to impose preventive suspension or issue the suspension order.
Second. Under the Administrative Code of 1987 (E.O. 292, Book III, Title III, Chapter 9, Section 27, sub-paragraph 2), the Executive Secretary has the duty to “IMPLEMENT presidential directives, orders and decisions”. The law does not authorize him to MAKE or ISSUE “presidential directives, orders and decisions”. He may PROMULGATE and IMPLEMENT, but he cannot MAKE them. May the President delegate such authority to the Executive Secretary? No. The executive Secretary cannot substitute his personal discretion over the President’s. To do so would, in effect, make him an “acting President”. Under the Constitution, the Executive Secretary can never become an “acting President.”
Third. The order was signed by General Ermita alone. While it is true the Executive Secretary is authorized by law to sign papers “by authority of the President,” it is equally true such authority is limited to IMPLEMENTING, not MAKING “presidential directives, orders and decisions”. In the case of Mayor Binay, the suspension order was MADE by the Executive Secretary, not by the President. The order does not merely IMPLEMENT. It is the suspension order itself. The order does not even mention any suspension order signed or issued by the President herself. Thus, it seems clear the Executive Secretary is the one imposing, albeit without legal authority, the subject preventive suspension.
Fourth. While it is true the Executive Secretary is authorized by the Administrative Code to “decide, for and in behalf of the President, matters not requiring personal presidential attention”, it is equally true the matter of placing a duly elected Metro Manila city mayor plainly requires “personal presidential attention”. Moreso where the controversy involves the possible political destabilization of the country’s premiere financial hub.
Fifth. The Executive Secretary’s order admits Mayor Binay had duly requested for a “bill of particulars”. The law provides that - BEFORE responding to the complaint - a party may ask for a definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him to properly prepare his answer (Rule 12, Section 1, Rules of Court, which applies by parity of reasoning with respect to similar factual situations in administrative or criminal cases). The Executive Secretary completely disregarded the request for a bill of particulars without stating nor claiming there was no need for it. Therefore, there is an implied admission there is valid ground for a bill of particulars. Consequently, Mayor Binay could not possibly “properly prepare his answer or responsive pleading”. It would follow that without being given the opportunity to properly prepare his answer, it was UNFAIR for the Executive Secretary to have concluded the issues have been joined. Under the law, preventive suspension may be imposed only AFTER issues have been joined. In Mayor Binay’s case, there appears no proper joinder of issues. Therefore, his constitutional right to due process of law was violated when he was placed under preventive suspension.
Sixth. The Executive Secretary’s ruling to the effect that “the evidence of guilt is strong” is in the nature of a quasi-judicial conclusion. Reason dictates it must state clearly and distinctly the facts and the reasons on which it is based. Instead, the order lamely argues “the documents submitted as annexes to the complaint present strong evidence of guilt that some of the employees may be ‘ghost employees’ from their respective offices, collecting salaries from the city government to the prejudice of the latter”. This is an absurd case of a conclusion being supported by exactly the same conclusion. What is the nature of the documents referred to as strong evidence? The order does not say. Which particular annex is referred to as strong evidence? The order does not say. Why are such annexes considered strong evidence of guilt? The order does not say. Who are the particular ghost employees? The order does not say. How many ghost employees are there? The order does not say. The order seems to expect the reader to accept the conclusion of the Executive Secretary as self-evident truth. Is that fair or legal? No. The law abhors unreasonability. An administrative conclusion which does not state its factual and legal bases is necessarily presumed to be baseless in fact and in law. That conclusion is, therefore, unreasonable.
Is General Ermita trying on Mrs. Gloria Arroyo’s presidential shoes for size? So it seems. But he must remember, those shoes were stolen - not just once before, but twice. And the rightful claimant may reclaim it sooner than later.
Good to see you here, Alan!--DJB