Solicitor general to ask Ombudsman to defer suspension order

By Ronron
May 7, 2007

The Department of Interior and Local Government (DILG) will formally ask the Office of the Ombudsman today (Tuesday) through the Office of the Solicitor General to defer the suspension order against Makati City Mayor Jejomar Binay until after the election period.

Solicitor General Agnes Devanadera said in a television interview yesterday (Monday) afternoon that she will make a manifestation regarding the matter during today’s public hearing at the Ombudsman building in Quezon City at 9am.

“We will be manifesting to the Ombudsman that we are supporting the decision of the Secretary (of DILG, Ronaldo Puno) because after all, he evaluated the matter,” Devanadera said.

Devanadera said Puno formally wrote her office, requesting the Solicitor General to ask the Office of the Ombudsman to temporarily lift the suspension order against Binay for the meantime because implementing it at this time would resort to disorder in the affairs of the city government.

“The Secretary (Puno) said that implementing the order will cause or create chaos and havoc because no one will take charge of the city,” Devanadera said.

This after the city vice mayor, Ernesto Mercado, refused to take over the mayoralty post following the serving of the suspension order to Binay late Friday night. Devanadera assumed that the same action will be adopted by the councilors of Makati City, whom she believes are sympathetic with Binay.

Ombudsman Merceditas Gutierrez ordered last May 3 the preventive suspension of Binay and city treasurer Luz Yamane for not more than six months for allegedly placing “ghost employees” on the city government’s payroll.

The order stemmed from a complaint filed by former Makati City Councilor Oscar Ibay last December 21, 2006.

According to Ibay, several employees of the city government whose employment were severed in 2003 and whose names were delisted as government employees in the official records of the Government Service Insurance System (GSIS) for the year 2004-2005 remained listed with the Bureau of Internal Revenue employees list of the city government.

“The said list indicates that these employees whose services were severed, continued to receive wages and salaries from the city government of Makati City, which likewise remitted their respective computed income taxes for the year 2004 and 2005. No remittances were however made by the city government to the GSIS with respect to the monthly contributions of these employees,” reads a part of Gutierrez’ six-page order.

To support his allegation, Ibay submitted to the Ombudsman the following: 1) partial list of employees whose employment was severed; 2) GSIS official list of employees of the city government of Makati covering the years 1999-2005; and, 3) Schedule of Witholding Tax deducted from officials and employees of the city government of Makati for the year ending 31 December 2001, 2003, 2004 and 2005.

“These documents were made as basis for which complainant alleges the existence of ghost employees in the city government of Makati and the unlawful payment of wages and salaries to such employees,” wrote Gutierrez.

A witness for Ibay, Franco Miro, stated in his April 27, 2007 affidavit that another “ghost employee” scheme is “being perpetrated by naming individuals to be included in the list of employees of non-government organizations being funded and in the payroll of the Office of the Mayor.”

But actually, “these individuals are not legitimate employees as they do not actually receive any salary from the city hall and neither do they render any service to the city government,” the order reads.

Miro, himself, allegedly claimed that he was one of those individuals “schemed into claiming salaries from the Office of the Mayor, when in reality, he said he was working as a coordinator with a non-government organization called the “Bagong Ina ng Bayan Foundation” (BINB).

Another witness, identified as Joselito Binay II, whose relationship with the Mayor is not immediately known, claimed that as a former employee of Makati City councilor Jejomar Erwin Binay, Jr., he has personal knowledge of the scheme being perpetrated allegedly by the city officials, using BINB as front for “hiring ghost employees.”

Finding Ibay’s complaint “impressed with merit,” Gutierrez ordered the preventive suspension of the mayor and his city treasurer so that both the complainant and the respondents would be “placed on equal footing, allowing both sides to present their cases, defense and charges on equal ground.”

“A preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard since the same is not in the nature of a penalty, but merely a preliminary step in administrative investigation. The immediate issuance of the order is required in order to prevent the subject of the suspension to commit further irregularities,” Gutierrez wrote, citing Republic Act 6770 or the Ombudsman Act of 1989.

While under suspension, the two should not also receive their salaries.

The order stressed that the suspension is “immediately executory, and shall not be interrupted by any motion, appeal or petition by the respondents, unless ordered by the Ombudsman or any court of competent jurisdiction.

But last Sunday, Puno said he is deferring the implementation of the suspension order for the duration of the election period “in the interest of fair play.”

Binay had cried foul over his suspension, saying that it is another form of pressure against him by the Arroyo administration, him being a leader of the political opposition.

Binay is seeking for another term as Makati Mayor and he is being challenged by administration-backed former Senator Lito Lapid.

DILG Undersecretary for Public Safety Marius Corpus, who served the suspension order against Binay last Friday night at the Makati City hall, denied that the order was sanctioned by President Gloria Macapagal-Arroyo.

Corpus said that in fact, Malacañang only got in touch with him when he was already at the Makati City Hall, asking him about the incident, which had drawn thousands of supporters of Binay to gather around the city hall.

Following deferment of the suspension order, Binay said yesterday that he no longer sees any reason to seek an injunction from the Court of Appeals.

At 9am today, the Ombudsman is set to conduct a public hearing of the case at its office along Agham Road in Quezon City.

In a statement, Gutierrez said yesterday that there is no political color in the suspension order against Binay, pointing out that her office “is an independent institution.”

“It is important to stress that evidence and not politics dictates our actions, nothing more, nothing less,” she said.

It should be noted though that Gutierrez is Arroyo’s former Presidential Legal Counsel.

As to the timing of the issuance of the suspension order, Gutierrez said: “People should not treat the work of the Ombudsman as that of politicians who are concerned with political timing, political cost and benefits. The only timing the Ombudsman is concerned with is, will respondents continued presence in office jeopardize the investigation? If the answer is yes, then that is when the suspension must be ordered and implemented.”

“When we ordered the suspension of two mayors in southern Visayas several weeks ago, we did not hear of anyone saying the orders were ill-timed,” lamented Gutierrez.

The anti-graft chief also maintained that the suspension of Binay does not need any clearance from the Commission on Elections since the charges against him are violations of Republic Act 3019 (Anti-Graft and Corrupt Practices Act), for alleged grave misconduct, conduct prejudicial to the best interest of the service, and dishonesty./DMS