Thursday, October 19, 2006

Why Ermita's Suspension Order on Binay Is Void On Its Face

Legal Analysis by Prof. Alan F. Paguia
(Special to Philippine Commentary on the Makati Crisis)

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.
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.

Good to see you here, Alan!--DJB


AmericanPainter said...

Dean you make a good point that the suspension order requires the personal attention of the President so perhaps the answer would be for her to personally review and sign the order herself. It has also been suggested that motivation for the complaint is politically tainted.

Regardless, the question of whether or not the Mayor did or did not hire “ghost” employees needs to be answered in a court of competent jurisdiction. Not in the media and certainly not by a standoff at city hall.

floyd said...

Mayor Binay of Makati is being booted out of office due to pressures from Malacanang.
His punishment for allegedly employing ghost employees, but until now no name whatsoever is being put to light by the prosecutors.

It is only known that Binay was and is a member of the opposition.

What do we do about it?

What the hell can we do about it?

One by one heads of oppositions are being arrested. I can still remember that there was a time that if somebody wears even a shirt denouncing the Government and the President he is prone to being jailed.

What the hell happened?

"Wala kasing matinong opposition" thats what we normally say.

But then i answer "Then why not be the Opposition?"
It doesnt take more than a brain to be an opposition, an opposition may be a person saving water, and by that act alone the person becomes an opposition to illegal loggers and polluters.

He may not march to the streets and protest but in his own home he can be an opposition by denouncing them and telling it to his friends.

As far as i see we stay in our homes watching, not even doing anything.

They laugh at protesters but they cant even protests in their hearts what they see as wrong.

"I am not enough" they answer

Now if the people of India thought that way there will be no India as we see it today.

as Gandhi said it "Be the change you want to be"

and then we say "But i need to earn my dough, i need to work and study for the future of my family"

Dodong Nemenzo is right the battle today is not about who's right and wrong it is Individualism Vs. Collectivism.

But then i think there is a much deeper problem here... I want to go deeper and state that It is not individualism that is at stake here in the bringing about of change.

They are institutions that fail to hold their moral foundations in our society.

Coincidentally a priest was just killed and do you see people mourning for him?
Do you see Churches making their own investigation and denouncing the perpetrators?

I pray for one day a certain V like the one in the movie V for Vendetta blow up a Government institution.

But then i guess it would be better if somebody blows up a Church...

john marzan said...

"Regardless, the question of whether or not the Mayor did or did not hire “ghost” employees needs to be answered in a court of competent jurisdiction. Not in the media and certainly not by a standoff at city hall."

but what if Arroyo's DOJ, ombudsman, DILG and the SC are not trustworthy?

AmericanPainter said...

"but what if Arroyo's DOJ, ombudsman, DILG and the SC are not trustworthy?"

What does that have to do with whether or not Binay did or did not hire ghost employees? Which is a question of fact. What is he hiding from behind supporters and giving them a free lunch to draw them there? Is public money being used to pay for the free lunch?

The corruption in this Country is too often supported unwittingly by the public.

Let the investigation be pursued, let the payroll records be examined. If he has done nothing wrong, there is no reason to hide. The suspension order is preventative not punishment. It is standard operating procedure, when any public servant is accused, whether it be teacher or policeman, they are suspended pending investigation. If the allegations are unproven, they are restored to position. Why should Binay, a public servant, be exempt just because he is political opposition? His actions in this matter only serve to make him look guilty.

Rizalist said...

Your point is acknowledged about how the public unwittingly supports corruption by tolerating it in those they support for other, perhaps transcending reasons.

What for example did the wholly innocent citizens of Makati do to deserve the peremptory removal of ALL their elected officials, to be governed by a person who has never been elected to any office and does not even reside in Makati. It is as if all the City Councilors of New York City, along with its Mayor and Vice Mayor were suspended and replaced with a Federal functionary.

Regardless of their alleged ghost employees, it is not believable that ALL 18 of these men deserve in equal measure to be "preventively suspended" and in so doing harm the interests of the citizens, who have nothing to do with their alleged crimes.

The Courts have ruled in their favor so far but we cannot concentrate merely on the crimes of this one specific individual to the detriment of the rules and processes of the law. As Paguia showed, "the issues have not been joined" -- the suspension is ILLEGAL. The C.A. agreed!

If we put blinders on and see it only as a matter of one corrupt mayor defending himself, we may lose sight of how innocents become collateral damage to what is in effect, a political vendetta (even if he is guilty!).