Office of the Ombudsman v. Duterte

A public officer is not guilty of simple misconduct for failing to strictly comply with the demolition procedure under Section 216 of the IRR of the National Building Code where the structure to be demolished is a national government project and the building official tasked to issue the permit is the same entity carrying out the demolition. Decisions of the Office of the Ombudsman in administrative cases are immediately executory and may not be stayed by an injunctive writ, and presidential immunity does not bar a case against a sitting President's co-respondents.

The Canal-Cover Project was a national government undertaking of then Representative Prospero C. Nograles of the First District of Davao City, completed on February 16, 2006 over a drainage canal in Quezon Boulevard, Davao City and known locally as "Nograles Park." It was intended to secure residents and children from accidents, prevent garbage disposal and canal clogging, and prevent foul odors, and included the improvement and beautification of the public park where the canal cover was located. The statutory backdrop is the National Building Code, which governs the demolition of public and private structures, and the Local Government Code, which designates the city engineer as the local building official.

The Canal-Cover Project was undertaken by then Representative Prospero C. Nograles of the First District of Davao City, described as intended "to secure the residents and children from any untoward accident, prevent disposal of garbage and clogging of canal and prevent emission of foul odors." It was completed on February 16, 2006, and included the improvement and beautification of the public park where the canal cover was located. Because concrete flooring was constructed on top of the drainage canal, silt and garbage could not be dredged, impeding the flow of water, so that Sta. Ana and Quezon Boulevard would be submerged whenever there was a downpour of rain. In the first quarter of 2008, the city government informed the Department of Public Works and Highways of the problem. The Department created several manholes on the concrete flooring to dredge silt through the canal, but the problem remained. On April 17, 2008, the City Engineer's Office wrote to the Department of its plan to remove the concrete flooring.

On September 17, 2008, then City Legal Officers Elmer B. Raño and J. Melchor Quitain issued a legal opinion stating that the Canal-Cover Project was a public nuisance obstructing the free passage of water, and that it was constructed on top of the city's drainage system without permit from the local building official. They concluded that the project, being a nuisance per se, may be abated or summarily demolished. On October 16, 2008, then City Engineer Jose D. Gestuveo, Jr. sent a letter to then District Engineer Isagani G. Javier advising him of the demolition of the Canal-Cover Project on October 20, 2008, which proceeded on the same date.

On October 22, 2008, Representative Nograles sent a letter to then Secretary of Justice Raul M. Gonzales requesting an opinion on the demolition. In Opinion No. 10 dated November 12, 2008, Justice Secretary Gonzales opined that the erection, construction, alteration, repair, or demolition of structures requires a building permit from the building official assigned in the place where the structure is located. The lack of permit, however, does not per se make the structure subject to immediate demolition since Section 103 of the Revised Implementing Rules and Regulations of the National Building Code allows these structures to be "legalized" once they conform to the rules and regulations and are later issued the proper permits and certificates. The Opinion likewise added that under Section 216 of the Revised IRR, it is ultimately the Department of Public Works and Highways that determines if a structure is a nuisance per se and that it may be demolished only upon the failure of the structure to comply with the order of the building official or the Secretary of Public Works and Highways.

As a result, Representative Nograles filed with the Office of the Ombudsman a complaint for grave abuse of authority against City Engineer Gestuveo, then City Administrator Wendel E. Avisado, and then Chief of the Drainage Maintenance Unit Yusop A. Jimlani, and a complaint for grave misconduct against then City Mayor Rodrigo R. Duterte, City Administrator Avisado, City Engineer Gestuveo, City Legal Officers Atty. Raño and Atty. Quitain, and Chief Jimlani.

In their defense, the concerned city officials alleged that the Canal-Cover Project was constructed by the Department of Public Works and Highways on top of a main drainage artery/canal, which receives water from Uyanguren, Gempesaw, Ponce, and Sauzo Streets, the Mini-Forest, Magsaysay Park, and a portion of Quezon Boulevard before flowing to the sea. They likewise alleged that the concrete cover was named "Nograles Park" in violation of the Local Government Code, which requires the approval of the Sangguniang Panlungsod for the naming and construction of public parks.

On April 21, 2010, the Office of the Ombudsman rendered its Decision finding Mayor Duterte, City Administrator Avisado, City Engineer Gestuveo, City Legal Officers Atty. Raño and Atty. Quitain, and Chief Jimlani guilty of simple neglect of duty and imposed the penalty of suspension from office for six months. The Office of the Ombudsman later issued a May 6, 2010 Order addressing a typographical error by correcting the offense from simple neglect of duty to simple misconduct. Both the Office of the Ombudsman and the CA concluded that the Canal-Cover Project was not a nuisance per se, since it "did not affect the immediate safety of persons and property as an open canal would."

• Applicability of Section 216 IRR: Petitioner Ombudsman argued that Section 216 of the IRR of the National Building Code applied since the Canal-Cover Project was a project funded by the national government, and respondents "blatantly neglected to follow the rules" when they demolished the project without complying with the 15-day notice requirement.
• Nuisance per se: Petitioner Ombudsman asserted that the Canal-Cover Project was not a nuisance per se merely because it may have caused flooding, as it did not affect the safety and property of persons or was injurious to the rights of property or the health and comfort of the community.
• Simple Misconduct: Petitioner Ombudsman submitted that respondents committed simple misconduct when they breached the norms and standards of public service by summarily demolishing the Canal-Cover Project without observance of the proper procedure, causing damage to the national government amounting to PHP 2,000,000.00.
• Review by the Secretary of DPWH: Petitioner Nograles posited that while Section 477 of the Local Government Code provides that the city engineer shall act as the local building official, Sections 203 and 207 of the IRR of the National Building Code provide that the city engineer's decisions and orders are subject to review by the Secretary of Public Works and Highways.
• Non-Compliance with Procedure: Petitioner Nograles alleged that respondent City Engineer Gestuveo's letter to the Department of Public Works and Highways cannot be sufficient compliance since the demolition was done without complying with the 15-day notice requirement and without the required demolition permit.
• Conclusive Factual Findings: Petitioner Nograles argued that under Section 27(2) of Republic Act No. 6770, the factual findings of the Office of the Ombudsman are conclusive when supported by substantial evidence, and its decision on respondents' suspension should thus have been immediately executory.

• Nuisance per se: Respondents countered that the Canal-Cover Project was a public nuisance per se since its concrete floor made it impossible to dredge the silt in the canal, causing flooding in the area.
• Not a Park: Respondents contended that the concrete canal cover, while known in the locality as "Nograles Park," was not a park as understood in the law and thus its summary demolition cannot be considered misconduct.
• No Demolition Permit Needed: Respondents asserted that there was no need for the city engineer to apply for a demolition permit since the Office of the City Engineer was the issuing authority.
• Improper Injunction: Respondents argued that the CA did not err in staying the execution of the Ombudsman's decision since it was "patently erroneous and reeked of political flavor," the order of suspension having been imposed only days before the 2010 National and Local Elections, where respondent Mayor Duterte was running for reelection.
• Condonation Doctrine: Respondents mentioned that even if there was misconduct, the offense had already been condoned by the reelection of respondents Duterte, Avisado, and Quitain to public office, per the condonation doctrine.

• Presidential Immunity: Whether the Petitions should be dismissed in view of the doctrine of presidential immunity.
• Simple Misconduct: Whether respondents committed simple misconduct when they demolished a project of the national government on the ground that the project was a nuisance per se.
• Injunctive Writ: Whether the CA erred in issuing a writ of preliminary injunction to enjoin the Office of the Ombudsman from executing the penalty of suspension of six months on respondents.

• Presidential Immunity: No. Presidential immunity does not bar the case; it only covers liability and suits may be held in abeyance until after the President's term ends. The Ombudsman may investigate and prosecute all public officers, including the President.
• Simple Misconduct: No. Respondents did not commit simple misconduct; strict compliance with Section 216 of the IRR of the National Building Code was excused because the structure was a national government project and the building official was the same entity carrying out the demolition.
• Injunctive Writ: Yes. The CA erred in issuing the writ of preliminary injunction because decisions of the Office of the Ombudsman in administrative cases are immediately executory and may not be stayed by an injunctive writ.

• Presidential Immunity: The SC held that the President is immune from suit during his or her tenure in office, as settled in David vs. Macapagal-Arroyo. This immunity, however, is not absolute. Estrada vs. Desierto teaches that the privilege of immunity does not do away with the fundamental ideal of accountability from public officers; unlawful acts of public officials are not acts of the State, and the officer who acts illegally stands on the same footing as any trespasser. Presidential immunity is not a magical cloak that can erase all wrongdoing simply by being elected to office. It only covers liability from suit to free the President from hindrance and to protect the dignity of the office. Thus, while the President cannot be held liable for civil, criminal, and administrative infractions while in office, suits of this nature could be held in abeyance until after the President's term ends, as in Nacino vs. Ombudsman, where a criminal complaint against former President Benigno Simeon Aquino III filed after his tenure was given due course. The SC also addressed the Office of the Solicitor General's Motion to Withdraw Petition, which invoked presidential immunity. The Motion was filed without informing the Office of the Ombudsman. The SC held that the OSG represents the Government of the Philippines, its agencies and instrumentalities, and its officials and agents, but its ultimate client is the Filipino people, as held in Pimentel, Jr. vs. COMELEC and Gonzales vs. Hon. Chavez. The OSG is not, and has never been, intended to be the personal counsel of the President, especially for legal matters that arose even before the President was elected to office. The OSG's act of directly filing the Motion to Withdraw without first informing the Office of the Ombudsman reeked of excusable ignorance at best and political patronage at worst. The SC reminded the OSG that its duty is to the people, not the President. The SC held that the Office of the Ombudsman, as an independent constitutional body and as the champion of the people and the preserver of the integrity of public service, may investigate and prosecute cases of all public officers, including the President. Presidential immunity does not require dismissal of the petitions; it only covers liability and suits may be held in abeyance.
• Simple Misconduct: The SC began with the definition of nuisance under Article 694 of the Civil Code and public nuisance under Article 695. Nuisances are of two classes: nuisances per se and nuisances per accidens. As held in Monteverde vs. Generoso, nuisances per se affect the immediate safety of persons and property and may be summarily abated under the undefined law of necessity, while nuisances per accidens may only be abated after due notice and hearing. Both the Office of the Ombudsman and the CA concluded that the Canal-Cover Project was not a nuisance per se, since it did not affect the immediate safety of persons and property as an open canal would. While the local government of Davao City may have the power to declare and abate nuisances within their territory, it cannot unilaterally state as a fact that the Canal-Cover Project is a nuisance that must be abated if it is not a nuisance per se, as held in Iloilo Ice and Storage Co. vs. Municipal Council of Iloilo. Section 103(a) of the National Building Code states that its provisions shall apply to the demolition of both public and private buildings and structures. Section 205 provides that the Building Official shall be responsible for carrying out the provisions of the Code. Sections 214 and 215 provide that the building official may order the demolition or abatement of dangerous buildings and structures. Section 216 of the IRR outlines the procedure for abatement/demolition, including the requirement of a finding or declaration by the Building Official, written notice to the owner and occupants giving at least 15 days to vacate or cause the structure to be vacated, repaired, renovated, demolished, and removed, and the requirement of a demolition permit. The SC noted that the applicability and interpretation of the National Building Code can be confusing in this case, since its provisions presume that the owner of the structure, the Secretary of Public Works and Highways, the building official, and the persons ordered to carry out the demolition are four separate entities without any overlap. However, in this instance, the owner of the structure is the State, represented by the Secretary of Public Works and Highways, while the demolition team is headed by the building official. The Rules cannot be interpreted as in private structures. First, the "owner" of the structure, represented by the Department of Public Works and Highways, was aware as early as the first quarter of 2008 that the Canal-Cover Project caused flooding and that the local government of Davao City was taking steps to rectify the issue. While the 15-day requirement was not strictly complied with, its rationale to inform the representative of the "owner" that the structure was a nuisance, ruinous, or dangerous had been sufficiently followed. The 15-day period also allows the structure's owner to appeal the planned demolition to the Secretary of Public Works and Highways. Since the Department of Public Works and Highways, being the representative of the owner, did not object to the planned demolition and even sent representatives to assist in the demolition, it can be concluded that the 15-day period was unnecessary for this purpose. Second, the demolition permit was unnecessary since the entity that would be issuing the permit, i.e., the building official, was the same entity carrying out the demolition. Under Section 216 of the IRR, the building official should secure within 15 days the demolition permit to be issued by the Office of the Building Official. In case of failure to secure the necessary permit, it is also the building official which shall cause the structure to be demolished and removed. There would arise the absurd situation where in case of failure of the building official to issue the demolition permit to itself, it would also be tasked to take on the demolition by default. Thus, the building official cannot be expected to strictly comply with this requirement. Respondents were charged with simple misconduct for their alleged failure to comply with the procedure for demolition under the Rules. Misconduct is defined as a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer, as held in Estarija vs. Ranada. The misconduct is grave if it involves any of the additional elements of corruption, willful intent to violate the law or to disregard established rules, which must be established by substantial evidence; otherwise, the misconduct is only simple, as held in Civil Service Commission vs. Ledesma. Respondents' defense for non-compliance with the established rule of procedure was that the demolished structure had been a nuisance per se, and thus could be summarily abated. The Office of the Ombudsman and the CA, however, made a common factual determination that the Canal-Cover Project was not a nuisance per se, as the flooding that the structure caused did not affect the immediate safety of the community. Not being a nuisance per se, it was imperative for the respondents to comply with the procedure for demolition outlined in Section 216 of the IRR. However, several provisions of Section 216 could not be strictly complied with, since the structure to be demolished was a public edifice, and the demolition was carried out with the participation of the Department of Public Works and Highways, the entity which had constructed the structure. There is thus no error in the CA's finding that respondents were not guilty of simple misconduct.
• Injunctive Writ: The SC held that decisions of the Office of the Ombudsman on administrative cases are immediately executory, and a pending appeal or the issuance of an injunctive writ will not stay its execution. Under Office of the Ombudsman Administrative Order No. 7, as amended by Administrative Order No. 17, Rule III, Section 7, an appeal shall not stop the decision from being executory, and a decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The SC has always adopted a policy of non-interference in the Office of the Ombudsman's findings, in deference to its role as an independent constitutional body tasked with upholding the integrity of public service, as held in Lee vs. Sales. The executory nature of its decision in administrative cases prevails even if the erring public officer is absolved on appeal, since public officers do not have a vested right in their offices. The immediate execution of a decision of the Ombudsman is a protective measure with a purpose similar to that of preventive suspension, which is to prevent public officers from using their powers and prerogatives to influence witnesses or tamper with records. Public office is a public trust. There is no vested right to a public office or an absolute right to remain in office that would be violated should the decision of the Ombudsman be immediately executed. In case the suspended or removed public official is exonerated on appeal, Administrative Order No. 17, Rule III, Section 7 itself provides for the remedial measure of payment of salary and such other emoluments not received during the period of suspension or removal. No substantial prejudice is caused to the public official. Thus, the CA erred in issuing its writ of preliminary injunction dated August 4, 2010 enjoining the Office of the Ombudsman from enforcing its April 21, 2010 Decision pending the promulgation of the CA's decision on the merits. Even granting that the CA would later absolve respondents, and that its Decision would later be affirmed by the SC, Administrative Order No. 17, Rule III, Section 7 requires that the penalty be served immediately. There can be no prejudice caused to the public official since there is always a remedial measure in the form of payment of salaries and such other emoluments not received during the period of suspension. Respondents pointed out that the Office of the Ombudsman's decision was "patently erroneous and reeked of political flavor," the order of suspension having been imposed only days before the 2010 National and Local Elections, where respondent Duterte was running for reelection. The SC held that the Office of the Ombudsman is an independent constitutional body tasked with the protection and preservation of the integrity and dignity of public office. To imply that the Office of the Ombudsman is politically biased simply because it issued an unfavorable decision is to question the values of our public institutions. In any case, there is no law or rule which states that a public official running for reelection may not be preventively suspended before the election. It would even be more dignified for the public official to quietly serve the suspension with grace and to later on be vindicated by an absolutory decision on appeal, rather than for tribunals to issue a patently erroneous writ in a bid to maintain visibility before voting begins. Respondents have not been prejudiced by the pendency of this case, considering that they have since gone on to even higher positions. Dissolving the writ and insisting on the execution of the preventive suspension at this point would only be an exercise in futility. This incident should serve as a reminder to tribunals to maintain their neutrality even in the face of opposing political forces, no matter how powerful. No matter how slow or arduous the process, the law will always find a way to right itself.

• Presidential Immunity — The President is immune from suit during his or her tenure in office, but this immunity only covers liability and does not erase wrongdoing. Suits against the President may be held in abeyance until after the term ends. The SC applied this by holding that presidential immunity did not require dismissal of the petitions; it only covered liability, and the Ombudsman could still investigate and prosecute all public officers, including the President.
• Nuisance per se vs. Nuisance per accidens — Nuisances per se affect the immediate safety of persons and property and may be summarily abated without need of further notice; nuisances per accidens may only be abated after due notice and hearing. The SC applied this by holding that the Canal-Cover Project was not a nuisance per se, so the local government could not summarily demolish it without following the procedure under Section 216 of the IRR.
• Simple Misconduct vs. Grave Misconduct — Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer. It is grave if it involves corruption, willful intent to violate the law, or disregard of established rules, which must be established by substantial evidence; otherwise, it is only simple. The SC applied this by holding that respondents were not guilty of simple misconduct because strict compliance with Section 216 was excused under the peculiar circumstances.
• Executory Nature of Ombudsman Decisions — Decisions of the Office of the Ombudsman in administrative cases are immediately executory, and a pending appeal or the issuance of an injunctive writ will not stay its execution. The SC applied this by holding that the CA erred in issuing the writ of preliminary injunction, though the issue was moot given respondents' changed circumstances.
• OSG's Duty to the People — The Office of the Solicitor General represents the Republic and the people, not the personal counsel of the President. The SC applied this by criticizing the OSG's filing of a Motion to Withdraw without informing the Ombudsman.

• "There is misconduct when a public officer transgresses an established and definite rule of action through unlawful behavior or gross negligence, such as the failure to comply with the established procedures before demolishing a public structure. Any penalty by the Office of the Ombudsman in cases of misconduct is immediately executory and may not be stayed even through an injunctive writ." — This passage from the opening of the decision states the two central rules the SC applied: the definition of misconduct and the executory nature of Ombudsman decisions.
• "Presidential immunity is not a magical cloak that can erase all wrongdoing simply by being elected to office. The immunity only covers liability from suit to free the President from any hindrance that may cause inability to perform his or her functions and to protect the dignity of the office." — This passage defines the scope of presidential immunity and clarifies that it does not erase liability.
• "The Solicitor General is reminded that the Office of the Solicitor General's duty is to the people. The people, not the President, will always be the true power behind the Republic." — This passage underscores the OSG's duty to the people and its independence from the personal interests of the President.
• "There would arise the absurd situation where in case of failure of the building official to issue the demolition permit to itself, it would also be tasked to take on the demolition by default. Thus, the building official cannot be expected to strictly comply with this requirement." — This passage explains why strict compliance with the demolition permit requirement was excused in this case.

• David vs. Macapagal-Arroyo, 522 Phil. 705 (2006) — Controlling precedent on presidential immunity; cited for the rule that the President may not be sued during tenure.
• Estrada vs. Desierto, 406 Phil. 1 (2001) — Followed; cited for the rule that immunity is not an inoculation from liability for unlawful acts.
• Nacino vs. Ombudsman, G.R. Nos. 234789-91, September 3, 2019 — Cited; a criminal complaint against former President Benigno Simeon Aquino III filed after his tenure was given due course.
• Monteverde vs. Generoso, 52 Phil. 123 (1928) — Controlling precedent on the distinction between nuisances per se and nuisances per accidens.
• Iloilo Ice and Storage Co. vs. Municipal Council of Iloilo, 24 Phil. 471 (1913) — Followed; municipal councils cannot declare a non-nuisance per se as a nuisance.
• Estarija vs. Ranada, 525 Phil. 718 (2006) — Cited; definition of misconduct.
• Civil Service Commission vs. Ledesma, 508 Phil. 569 (2005) — Cited; distinction between grave and simple misconduct.
• Lee vs. Sales, 835 Phil. 594 (2018) — Controlling precedent on the executory nature of Ombudsman decisions.

• Civil Code, Art. 694 — Defines nuisance as any act, omission, establishment, business, condition of property, or anything else which injures or endangers health or safety, annoys or offends the senses, shocks or disregards decency or morality, obstructs or interferes with the free passage of any public highway or street or any body of water, or hinders or impairs the use of property. Applied to characterize the Canal-Cover Project.
• Civil Code, Art. 695 — Defines public nuisance as one which affects a community or neighborhood or any considerable number of persons. Applied to the Canal-Cover Project.
• Presidential Decree No. 1096 (National Building Code), Sec. 103(a) — Provides that the Code applies to the demolition of public and private buildings and structures. Applied to hold that the Code governed the demolition of the Canal-Cover Project.
• Presidential Decree No. 1096, Sec. 205 — Provides that the Building Official shall be responsible for carrying out the provisions of the Code. Applied to identify City Engineer Gestuveo as the building official.
• Presidential Decree No. 1096, Secs. 214 and 215 — Define dangerous buildings and provide for their abatement. Applied to the authority of the building official to order demolition.
• IRR of the National Building Code, Sec. 216 — Outlines the procedure for abatement/demolition of dangerous or ruinous buildings, including the 15-day notice and demolition permit requirements. Applied to hold that strict compliance was excused under the circumstances.
• Local Government Code (RA 7160), Sec. 477 — Provides that the city engineer shall also act as the local building official. Applied to identify City Engineer Gestuveo as the building official.
• RA 6770, Sec. 27(2) — Provides that findings of fact of the Ombudsman when supported by substantial evidence are conclusive. Invoked by Nograles.
• Administrative Code (1987), Book IV, Title III, Chap. 12, Sec. 35 — Mandates the OSG to represent the Government. Applied to discuss the OSG's role.
• Ombudsman AO No. 7 as amended by AO No. 17, Rule III, Sec. 7 — Provides that decisions of the Ombudsman in administrative cases are immediately executory. Applied to hold that the CA erred in issuing the writ.