12th ASEAN Summit

CEBU, Philippines—It must have been a struggle for reelected Mayor Arturo “Boy” Radaza to return to Lapu-Lapu City Hall last Monday to assume his duties amid legal doubts over his suspension from office for his alleged participation in the ASEAN Summit lamppost controversy. As I write, there’s no word yet from Tanodbayan Merceditas Guttierez, who is set to act on the recommendations of the Visayas Ombudsman.

I am always attentive to what acting Deputy Ombudsman Virginia Palanca Santiago would have to say on this matter, but she has been consistent in refusing to issue any comments on Radaza’s suspension, knowing as she does that this is the call of the Tanodbayan.

However, it is common knowledge that Radaza’s lawyers filed a motion to lift the suspension to clear the way for his assumption. I agree with observations that by filing such motion, the mayor recognized the suspension order is still in effect, which is why I find his decision to preside over the council session last Monday unseemly even as it showed bad faith.

A young lawyer in the household recently walked me through the purpose of the unique power of the Ombudsman to suspend government officials accused of graft. When it issues a preventive suspension order, the Ombudsman is duty bound to begin investigation of the case and to conclude it within the most reasonable time. The intention is to preclude the respondent from unduly influencing possible witnesses to his case.

One need not be a lawyer to understand the possibility that a state official could exert influence over his subordinates, deliberately or otherwise. Removing him from the scene would enable investigators to have a clearer understanding of the case and gain access to impartial witnesses.

Government officials in hot water will not readily admit to this, but since their temporary removal has the effect of compelling the Office of the Ombudsman to process the case, i.e. find facts and gather evidence, it may well be said that the ovet all impact of the suspension is beneficial to respondents – it speeds up the process and allows the anti-graft body to move on to the next task, which is the determination of whether or not the facts are sufficient for the filing of charges against the officials. Unless they have reasons to be afraid, they should welcome a full-blown investigation and exert all efforts in bringing the case to a just resolution.

If there’s no prima facie evidence, the respondent is cleared and the elected official goes back to work vindicated. The difference lies when evidence is found against the respondent, but then again there’s a lot of legroom to maneuver in a system that guarantees due process.

Some quarters are saying the odds are that a criminal case could still be filed against Radaza on the lamppost controversy, even if his reelection extinguished the administrative liability of the case.

In Garcia vs. Mojica (GR No. 139043 September 10, 1999), the Supreme Court held that while petitioner, then Cebu City Mayor Alvin Garcia, can no longer be held administratively liable for signing the contract with F. E. Zuellig, this should not prejudice the filing of any case outside of the administrative suit previously filed against Garcia.

The Court used the Aguinaldo Doctrine, which states, “a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale being that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.”

In Aguinaldo vs. Santos, the Court made clear the rule that a public official cannot be removed from administrative misconduct committed during a prior term, since his reelection to office operates as a condoning of the officer’s previous misconduct, thereby cutting off the right to remove him.

Fortunately or unfortunately, the Aguinaldo doctrine does not apply to criminal cases pending or which may be filed against the official.