Of tenses and justice

Herbie Gomez

LET me get this straight: the reason why Vice Mayor Caesar Ian Acenas swore in as mayor, and Councilor Lourdes Darimbang as vice mayor, was because Mayor Oscar Moreno’s counter-affidavit went missing in the Office of the Ombudsman, and because three associate justices of the Court of Appeals (CA) were so decent they felt they had to refrain from hearing the latter’s urgent petition for a temporary restraining order (TRO) on Thursday, the day the ruling was really needed.

The TRO was issued a day later or on Friday, some 22 hours after the Department of Interior and Local Government (DILG) served the ombudsman’s dismissal order. It was a 60-day TRO, and not a status quo ante, according to Moreno’s lawyer Bryan Dale Mordeno. That makes a layman like me wonder where the associate justices have been because the TRO made it look like they were unaware of what took place and hit Cagayan de Oro the night before.

My “Christmas wish” is for all court-decision writers in this country to acquire the skill of writing clearly, and stop beating around the bush. This nation has suffered so much already because of their inability to write crisp, crystal clear, and direct-to-the-point rulings that leave no room for many interpretations. We have seen time and again how poorly written court judgments, deliberate or not, added to the problem instead of resolving issues. Some of the documents are really pure garbage that waste so much paper and ink.

In the Moreno case, a status quo ante, if only clearly stated and if there is even such an animal in Philippine law books, would have been different in that it would have meant clicking the reset button or making city hall travel back in time until it reaches a restore point.

But as I write this, I can already hear Acenas and the Padayon Pilipino Gang, including Darimbang, raising this rhetorical question: “What is there to restrain when it has already been done?”  While a TRO is issued to prevent a grave and irreparable wrong on the part of a petitioner, I understand that there is also a rule that if an act sought to be stopped has already been done, such order won’t apply. Present tense and past tense don’t really mean the same thing. Anyways, that is for the lawyers to debate on.

Moreno only wanted one thing, and that was for him to be given his day in court, something that he never had from Day 1.

There were rules that had to be followed. One was the 10-day rule for the Department of Interior and Local Government (DILG) to serve the assailed dismissal order of the ombudsman. Another was the three-day rule for the ombudsman to act on the motion for reconsideration. This is not an ordinary rule but a clause in a law–Section 27(2) of Republic Act 6770 provides that when “errors of law or irregularities have been committed prejudicial to the interest of the movant, the motion for reconsideration shall be resolved within three (3) days from filing: provided, that only one motion for reconsideration shall be entertained.”

Thursday, Nov. 12, was the 10th day, and the DILG had to serve the order that day or risk being slapped with a lawsuit. That is why Acenas, Darimbang, and the DILG regional office were convinced that they had a legal basis to do what they did on Thursday night. If they didn’t, they would have opened themselves to charges of dereliction of duty.

But the thing is, while the ombudsman was strict on the 10-day rule on the service of process, in this case the contested dismissal order, there appeared a lack if not, absence of rigor when it came to the three-day period for it to resolve the motion for reconsideration filed by Moreno. No resolution, favorable or not, was made, prompting Moreno to bring the matter to the appellate court in the hope that it would issue an order to stop anyone from serving the dismissal order while he and all the parties concerned waited for the ombudsman to review its controversial decision that shook all of Cagayan de Oro. Again, the TRO was most needed on Thursday, not on Friday.

The man was racing against time on Thursday. Then, horror of horrors, three associate justices of the appellate court inhibited from hearing the petition for a TRO on separate occasions, all in one day, until there was no more office hour left to raffle the case off again to another associate justice.

I have taken note with so much interest that two of the three associate justices who signed the TRO on Friday inhibited on Thursday due to reasons still unclear to the public. Why they signed the Friday TRO when they inhibited on Thursday or some 20 hours, more or less, earlier is really beyond my comprehension. We have a Tagalog proverb for that: “Pagkahaba-haba man ng prusisyon, sa simbahan din ang tuloy.” So what now, the magistrates were “decent” on Thursday and what on Friday? Or was it the other way around? Are the courts still problem solvers or have they become part of the problem because they complicate legal matters?

Moreno suffered a legal setback on Thursday, adding insult to the injury caused by the “disappearing act” of his counter-affidavit at the Office of the Ombudsman. And that, Cagayan de Oro, is the reason why Acenas and Darimbang were sworn in as mayor and vice mayor.

It doesn’t take genius to see that, somehow, wittingly or unwittingly, there was a breakdown in the justice system as far as this particular case is concerned beginning from the mysterious loss or misplacement of Moreno’s counter-affidavit, a crucial document needed for a well-informed and intelligent judgment, to the Thursday inhibition of the associate justices apparently because of what the embattled mayor referred to as “decency” in the administration of justice.

So here, we see a mayor punished even before he could air his side of the story. Until late Friday afternoon, not once was his side ever heard and considered.

Maybe, Moreno had it coming, maybe not. I don’t know. And I wouldn’t mind seeing any public official removed and barred from holding public office for life if there is strong evidence of wrongdoing on his part. But I do mind seeing the man punished without him being given the opportunity to say his piece and defend himself in court. I guess the gem “I may not agree with what you say but I will defend to the death your right to say it” may apply here.

I will salute the first decent Moreno political enemy or even the “wala mapagbigyan” who would stand by him on this, and openly declare that he may not like the embattled mayor’s face but he would fight for the man’s right to defend himself in a fair legal battle.

No citizen of a country that upholds fundamental rights deserves that. In fact, no Filipino citizen deserves that. Anyone who says Moreno deserves the punishment because his counter-affidavit vanished in thin air has a serious problem in telling what’s right and what’s wrong, and is really dumb. And I mean, really dumb.

Pastilan.