INQUIRER.net Eleksyon 2007

CA stops dismissal order vs Iloilo gov

Visayas Bureau

Nestor P. Burgos Jr.

ILOILO CITY -- The Court of Appeals has barred the Ombudsman from implementing a dismissal order against Iloilo Gov. Niel Tupas Sr. and two provincial board members.

In a strongly worded 38-page order promulgated by the CA’s 18th Division in Cebu City on March 15 and released on Friday, the appellate court issued a permanent injunction barring the implementation of the orders of the Ombudsman and the Department of the Interior and Local Government against Tupas and Board Members Domingo Oso Jr. and Cecilia Capadosa.

The court said that after it studied and viewed the case in proper perspective, it reached the conclusion that Ombudsman Merceditas Gutierrez “acted with grave abuse of discretion amounting to lack or in excess of jurisdiction” when she ordered the immediate execution of her Dec. 4, 2006 decisions dismissing the three officials accused of graft.

Therefore, it said, the corresponding implementing order embodied in the Memorandum dated Jan. 15, 2007 issued by Interior Secretary Ronaldo Puno was “null and void.”

The Ombudsman ordered Tupas and the board members dismissed after finding them guilty of graft for allocating a total of P85,000 to the provincial board members’ league.

The Court of Appeals order signed by Associate Justice Francisco Acosta and concurred by Associate Justices Arsenio Magpale and Agustin Dizon granted the petition for certiorari and the issuance of an injunction against the Ombudsman and the DILG filed by Tupas.

“The respondents are therefore permanently enjoined from implementing the orders of dismissal issued by respondent Ombudsman within the period prescribed by the Rule for filing a petition for review under Rule 43 of the Rules of Court or until the same shall have been resolved with finality,” said the order.

The respondents include Gutierrez, Puno, Iloilo Vice Gov. Roberto Armada and provincial Board Member Emmanuel Gallar.

Tupas welcomed the order and thanked his supporters.

“We are vindicated by this order. It shows that if you are right, you will prevail,” he said in a press conference on Friday.

The CA order was issued three days before the lapse of the 60-day temporary restraining order issued by the CA on Jan. 17, stopping the implementation of the dismissal order.

The TRO stopped the armed assault on the provincial capitol by around 200 fully armed policemen who enforced the dismissal order.

The CA castigated the Ombudsman and the DILG for issuing and implementing the dismissal orders in violation of rules and jurisprudence.

While it upheld the authority of the Ombudsman to discipline elective local officials, the CA said the orders against Tupas, Oso and Capadosa “are not immediately executory.”

“This court, therefore, holds and so rules that decisions of dismissal rendered by respondent Ombudsman in the instant case are not immediately executory. Consequently, the orders embodied in these decisions directing respondent DILG secretary to implement them “upon receipt” and consequently the implementing order issued by the DILG are a nullity and therefore, have no force and effect,” the CA said.

It said Tupas and other respondents were also denied due process when the Ombudsman and the DILG implemented the dismissal order.

Citing jurisprudence, the CA said the officials “have a clear legal right to their elective positions.”

“… Petitioners cannot be deprived of their office without due process of law. Due process of law requires due notice and the right to avail of the remedies provided by law,” the CA said.

It pointed out that Tupas and the other officials ordered dismissed were not duly served copies of the Ombudsman decisions.

“… They were ordered removed even before they could have availed of the legal remedies like the filing of a motion for reconsideration and the right to the appeal of the said decisions.”

The CA also said it had the jurisdiction to decide on the cases contrary to the position of the respondents that the petition filed by Tupas was moot and academic because the decisions of the Ombudsman were served on Jan. 17 before the TRO was issued.

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