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Acting Solicitor General Florin Hilbay presented a simple argument: The Court of Appeals’ temporary restraining order against the Ombudsman’s preventive suspension of Binay, pursuant to its investigation of an allegedly overpriced parking building, is invalid because the Ombudsman Act prohibits TROs that would delay an Ombudsman investigation. The Court of Appeals’ jurisdiction is set by and may be further limited by law.
Binay’s lawyers countered with the convoluted theory that a TRO is a matter of court procedure and the high court has sole power over procedure. They invoked the Supreme Court’s so-called “rulemaking” power.
This power emerged only after a selective reading of the Constitution’s Article VIII, Section 5(5) in 2007, the one invoked by then Chief Justice Reynato Puno to issue protective writs against extrajudicial killing. Few challenged its tenuous foundations then, given Puno’s stature and government inaction on extrajudicial killing. Then Inquirer columnist (now publisher) Raul Pangalangan was one of the few, questioning Puno’s circular to judges to impose fines over jail terms in libel cases, which in effect changed the penal code without an amending law.
In contrast, Hilbay’s position is traced all the way to the 1803 Marbury decision, the great grandfather of US decisions on judicial power. It nullified the US Judiciary Act of 1789, reiterating that Congress has the power to set lower court jurisdiction but not the high court’s.
Taking this rulemaking power too far—such as to nullify the Ombudsman Act—is dangerous because such would allow unelected judges to exercise judicial power even if there is no case before them to decide. Binay’s lawyers’ radical position thus demands a complete rewrite of our separation of powers.
Senior Associate Justice Antonio Carpio caught on and asked why the existing law prohibiting TROs against national infrastructure projects would not end up unconstitutional. Justice Marvic Leonen added that judicial power in the Constitution is subject to the explicit line in the Constitution that lower court jurisdiction is set by law. Hilbay previously summed up that Congress can prevent a lower court from exercising judicial power by abolishing it, so arguing inherent power makes no sense.
Binay’s lawyers also strangely argued that the case was solely about the TRO’s validity, and it would be improper for the high court to revisit the “condonation” doctrine before a full appeal from a Court of Appeals decision. Sereno confronted this, reiterating that the high court may review any aspect of a case to decide it. Leonen argued that Binay’s lawyers assail the Ombudsman for going to the high court without moving for reconsideration from the Court of Appeals, yet Binay’s lawyers likewise went to that court without moving for reconsideration from the Ombudsman, thus both sides should not nitpick over procedure given their own violations.
Multiple justices discussed the “condonation” doctrine from a 1959 high court decision that administrative (but not criminal) cases regarding an elected official’s previous term may not be brought against him if he was reelected, because the electorate is deemed to have condoned these. Carpio laid the context that it is the first time this doctrine was questioned after the 1987 Constitution created the Ombudsman and reinforced principles of accountability.
Sereno’s questioning lasted almost an hour, used unprecedented language such as “you have to face your own conscience,” and harshly implied that a lawyer who invokes the condonation doctrine lacks integrity. She raised strong points such as how 17 US states have abandoned condonation. Still, Binay’s lawyers made their best points against Sereno, noting “bad precedent is still precedent” and fairness demands that any change in the doctrine should be applied to future cases and not to Binay.
Carpio laid a clever intellectual trap, positing that condonation in the executive branch is done only by the president as part of his power to pardon, and no one may delegate the power to pardon, not even to a city’s voters. Binay’s lawyers failed to counter that voters are the source of sovereignty, not delegates. Justice Lucas Bersamin reiterated that condonation should be a matter of defense, not raised during preventive suspension.
Binay’s lawyers reiterated how the Court of Appeals found Binay’s suspension ordered with undue haste. Sereno asked Binay’s lawyers to explicitly confirm if they agreed that the Ombudsman and the justices could read voluminous evidence in a short time. Bersamin stressed that the Ombudsman, who formerly chaired his high court division, was a fast reader.
Justices beyond Sereno voiced displeasure. Leonen pointedly asked why Binay had not cared to appear in person. Carpio admonished that “you are twisting our decisions” after Binay’s lawyers summarized a line of cases on suspensions.
Binay’s lawyers seemed to falter with ill-advised, radical theories. Perhaps they should have stuck with more conventional arguments that some TROs do not delay an Ombudsman investigation and are allowed under the Ombudsman law, or that the condonation doctrine already absolved Binay even if the high court changes the doctrine.
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