Legal Commentary "People vs. Ermita"

I am pleased to publish here at Philippine Commentary, the occasional thoughts of Prof. Alan F. Paguia on important legal and judicial issues that face the country. Here he tackles the legality of the order of preventive suspension against Makati Mayor Jejomar Binay, which affects the ongoing "scorched earth" policy the Palace seems to be employing against its enemies to soften up the 2007 election battleground.

People vs. Ermita
By Alan F. Paguia

Is Executive Secretary Eduardo R. Ermita criminally accountable for suspending the duly elected mayor, vice-mayor and councilors of Makati City? It would seem so.

Why?

First, that power is vested by law exclusively in favor of the President. There appears no law which authorizes the Executive Secretary to exercise that power.

Therefore, his exercise of that power is outrightly unlawful.

Second, the Administrative Code of 1987 expressly limits the authority of the Executive Secretary to acts that merely IMPLEMENT, and NOT ISSUE, presidential directives, orders and decisions. In the case at bar, the Executive Secretary himself ISSUED the suspension order. He acted as “the President”.

The order reads:

Office of the President of the Philippines, Malacañang
O.P. CASE NO. 06-H-305
ROBERTO G. BRILLANTE, Complainant,
-versus-
MAYOR JEJOMAR C. BINAY, VICE MAYOR ERNESTO S.
MERCADO, COUNCILORS
ERWIN JEJOMAR BINAY,
FERDINAND EUSEBIO,
ERLINDA GONZALES, RICARDO
JAVIER, RICARDO J. PUNO,
MONIQUE LAGDAMEO, ROMEO
MEDINA, ERNESTO ASPILLAGA
ISRAEL CRUZADO, ELIAS
TOLENTINO, DIVINA JACOME,
ROMANA PANGILINAN, NELSON
PASIA, NEMESIO YABUT, JR.,
RODOLFO SESE and CHRISTINE P.
MERCADO, all of Makati City,
Respondents,

X-------------------------------------x

ORDER

This Office is confronted by the prayer in the complaint of Roberto G. Brillante for the Issuance of a preventive suspension of all respondents in order to prevent the latter from harassing possible witnesses, and to prevent them from tampering vital documents and evidence now in their offices.

Under Section 63 (b) of the Local Government Code (R.A. 7160), a preventive suspension may be imposed only after the Issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great: probability that the continuance In office of the respondent could influence the witnesses: or pose a threat to the safety and integrity of the records and other evidence.

In the case at bar, the records show that all the respondents have filed their respective Answers (Affidavits) to the complaint except respondent city mayor who submitted an Affidavit. Ad Cautela as a “precautionary” Answer to the charges. Mayor Binay Is requesting for a bill of particulars which could be ventilated before the Department of the Interior and Local Government (DILG) as Investigating Authority during the preliminary conference (Section 5, Administrative Order No. 23, as amended).

Considering that the contents of the said affidavit of respondent City Mayor Binay have answered squarely the Issues/charges set forth In the complaint, we, therefore treat said affidavit as his answer to the complaint thereby joining the Issues herein.

The second requirement Is that the evidence of guilt is strong. Contrary to respondents’ allegations, 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.

Moreover, In view of the seriousness of the offense and the great possibility that respondents’ continuous presence in their respective offices would put pressure and influence on would be witnesses, and put in jeopardy the safety and integrity of the various records and documents, this Office deemed it necessary, In the Interest of justice, that the respondents be separated from their offices as a precautionary measure.

WHEREFORE, premises considered, respondents MAYOR JEJOMAR C. BINAY, VICE MAYOR ERNESTO G. MERCADO, COUNCILORS ERWIN JEJOMAR BINAY, FERDINAND EUSEBIO, ERLINDA GONZALES, RICARDO JAVIER, RICARDO J. PUNO, MONIQUE LAGDAMEO, ROMEO MEDINA, ERNESTO ASPILLAGA, ISRAEL CRUZADO, ELIAS TOLENTINO, DIVINA JACOME, ROMANA PANGILINAN, NELSON PASIA, NEMESIO YABUT, JR., RODOLFO SESE and CRISTINE P. MERCADO, all of Makati City, are hereby preventively suspended from office for sixty (60) days effective upon receipt hereof.

Meanwhile, so as to avert a vacuum and paralysis In the smooth and orderly delivery of basic and essential services to the constituents of the City of Makati, the DILG CITY DIRECTOR of Makati City is hereby designated as Caretaker of Makati City to run the day-to-day local government affairs thereat until such time that the President of the Philippines shall have designated a new set of officials for the City of Makati.

The Department of the Interior and Local Government Is hereby directed to implement this Order, immediately.

SO ORDERED.

Manila, Philippines. OCT. 16, 2006

By authority of the President:

(Signed)

EDUARDO R. ERMITA

Executive Secretary

The order appears to be the proverbial “smoking gun” and ought to be Exhibit “A” in the contemplated case of People of the Philippines vs. Ermita.

Third, the law also limits the authority of the Executive Secretary to decide, for and in behalf of the President, on matters NOT requiring personal presidential attention. Does preventive suspension of the elected officials of a highly urbanized city such as Makati – require personal presidential attention? Yes. Section 63 of the Local Government Code expressly says so. It would be absurd to allow an appointed official to suspend duly elected officials. The authority of the first is merely derivative in nature, while that of the second is original – coming as it does from the direct mandate of the sovereign people.

Fourth, while the Executive Secretary is authorized to sign papers “By authority of the President”, the same is expressly limited to acts that merely IMPLEMENT presidential directives, orders and decisions. If he acts outside that limitation, he would be acting beyond the scope of his authority.

Fifth, under the law, the Executive Secretary may ATTEST, but NOT ISSUE, executive orders and other presidential issuances. According to Black’s Law Dictionary, “attest” means “to signify by subscription of his name that the signer has witnessed the execution of the particular instrument”. In the case at bar, the instrument or suspension order was EXECUTED by the Executive Secretary. He did not act as a mere witness to its execution.

Sixth, did Sec. Ermita persuade, induce or influence other public officials to perform an act? Yes. He ordered the DILG (Department of Interior and Local Government) and police officials to implement the suspension order which was, in fact, implemented. Did that act constitute an offense in connection with the official duties of the DILG and police officials? Yes. They enforced what appears to be a patently unlawful order. Instead of acting as law-enforcers, they acted as law-breakers. They acted unjustly and in bad faith when they deprived the sovereign people of the services of the latter’s duly elected officials, without proper legal basis. Thus, a case should be instituted for violation of Sec. 3a of the Anti-Graft & Corrupt Practices Act.

Seventh, did Sec. Ermita knowingly approve or grant any privilege or benefit in favor of any person? Yes. He had intentionally approved and granted the privilege of serving as Makati City officials in favor of persons who served in substitution of the unlawfully suspended officials. Were the substitutes legally entitled to such privilege or advantage? No. The order or quasi-judicial decision appears illegal and void on its face. According to jurisprudence, it has no legal and binding effect, force or efficacy for any purpose whatsoever.

In Re: Report on the Judicial Audit in RTC-Br. 15, Ozamis City, 438 SCRA 363, it was ruled that a decision that is void for failure to comply with substantial requirements would remain invalid notwithstanding the failure of the parties to question it.

Eighth, under the law, the Republic of the Philippines is not bound by the mistakes or errors committed by the Executive Secretary in the exercise of his functions. Consequently, he is personally liable for the same.

Sec. Ermita did not act alone when he suspended the subject Makati City officials. He and other persons had come to an agreement concerning the commission of the patently unlawful suspension and they decided to commit it. Under the law, that is conspiracy. The rule in conspiracy is - the act of one is the act of all. Thus, the case against Sec. Ermita should include all those who conspired with him.

Therefore, the title of the case should not be People vs. Ermita. It should be People vs. Ermita, et alia.