Radaza vs. Court of Appeals

A petition challenging an Ombudsman order of preventive suspension becomes moot and academic once the six-month suspension has lapsed and the administrative case has been terminated, absent any of the recognized exceptions to the moot-and-academic doctrine.

Petitioners were the City Mayor and City Engineers of Lapu-Lapu City. The Office of the Ombudsman was investigating alleged anomalies in the procurement and installation of decorative lamp posts and street lighting facilities for the 12th ASEAN Summit. The statutory backdrop was Section 24 of Republic Act No. 6770, which authorizes preventive suspension pending investigation but limits it to six months without pay.

On 9 to 15 January 2007, the Philippines hosted the 12th Association of Southeast Asian Nations (ASEAN) Summit in Cebu, with preparations undertaken in 2006 or less than a year before the summit. Several cause-oriented groups wrote a letter dated 9 January 2007 to Director Virginia Palanca-Santiago of the Public Assistance and Corruption Prevention Office (PACPO) of the Office of the Ombudsman for the Visayas, urging an investigation into allegedly anomalous transactions in the preparations, particularly the overpriced procurement of decorative lamp posts and streetlights installed along the ceremonial routes in Cebu, Mandaue, and Lapu-Lapu; the letter was docketed as CPL-V-07-0033. Crisologo Saavedra, Project Manager of the joint venture Pelican/Cebesos that had previously offered to sell and install decorative street lights in Cebu City, submitted supplemental evidence to PACPO Director Palanca-Santiago to prove that the installed decorative lamp posts and streetlights were severely overpriced.

After investigation, a Final Evaluation Report was submitted to PACPO Director Palanca-Santiago on 23 March 2007. The Report stated that the project for the procurement and installation of decorative lamp posts and street lighting facilities along the ceremonial routes of the 12th ASEAN Summit in Cebu, Mandaue, and Lapu-Lapu pertained to the national government through the Department of Public Works and Highways (DPWH). In implementation, the local chief executives of the cities selected the designs of the lamp posts subject to DPWH approval; the City Engineer’s Office of Mandaue and Lapu-Lapu prepared their own Programs of Works and Estimates (POWE) with the approval of their respective City Mayors, while the DPWH Regional Office No. VII prepared that of Cebu City. The POWE contained a detailed list of equipment, personnel, and total expenditure requirements for the part of the project within each jurisdiction. Comparing the costs in the POWE of Mandaue and Lapu-Lapu with the costs in the importation documents and price quotations from suppliers, the PACPO team found that the former prices were as much as ten times more than the latter. It concluded that there was prima facie evidence of overpricing resulting from collusion between the contractors Gampik Construction and Development Corp. and Fabmik Construction and Equipment Co., Inc.; the City Government of Lapu-Lapu, represented by petitioners Radaza and City Engineers Cuizon, Taga-an, Jr., and Veloso; the City Government of Mandaue, represented by its City Mayor and City Engineers; and DPWH Region VII officials. The Report recommended the filing of a criminal case for violation of Republic Act No. 3019, paragraph 3(e), and an administrative case for Dishonesty/Misconduct.

An administrative complaint for Dishonesty and Grave Misconduct was filed against the public officials involved, including petitioners, before the Office of the Ombudsman (Visayas), docketed as Administrative Case No. OMB-V-A-07-0122-C. On 29 March 2007, Ombudsman Ma. Merceditas N. Gutierrez issued an Order in that case. The Order noted that the DPWH-Region VII, Mandaue City, and Lapu-Lapu City officials were signatories to the Program of Work covering their respective areas; that the DPWH-VII Bids and Awards Committee Chairman and Members were responsible for the supposed bidding; and that complainants alleged that respondents, in conspiracy with the private contractors, orchestrated the overpricing. It stated that the Final Evaluation Report of PACPO-Visayas, with its attachments mostly public documents, constituted strong evidence of guilt; that the administrative charge involved Grave Misconduct; and that measures should be taken to ensure a fair and reliable progress of the investigation. The Order then placed petitioners under preventive suspension for six months pending investigation.

Without seeking reconsideration, petitioners filed with the CA on 2 April 2007 a Petition for Certiorari under Rule 65 with a prayer for preliminary injunction and TRO, docketed as CA-G.R. SP No. 02615. They contended that the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the preventive suspension order because there was no strong evidence of guilt. They argued that the procurement and installation of decorative lamp posts and street lighting facilities in Lapu-Lapu City were entirely the national government’s project; that the POWE of Lapu-Lapu City was prepared by DPWH-Region VII; and that they merely signed it because the project was already pressed for time. They claimed entitlement to a TRO and/or preliminary injunction because the preventive suspension violated their rights in esse and its impending enforcement would inflict grave injustice and irreparable injury. On the same day, the CA issued a Resolution finding no cogent and compelling reason to issue a TRO. On 3 April 2007, petitioners filed a Very Urgent Motion for Reconsideration, arguing that the preventive suspension violated Section 261(x) of the Omnibus Election Code, which prohibits suspension of elective officials during the election period without COMELEC approval, and deprived them of their salaries; they reiterated their prayer for a TRO. On 4 April 2007, the CA directed the Ombudsman to comment on the motion within ten days.

On 3 April 2007, the DILG Region VII implemented the preventive suspension of Radaza, and on 4 April 2007, Cuizon, Taga-an, Jr., and Veloso were served by Acting Mayor Norma Patalingjug with copies of DILG Secretary Puno’s Memorandum directing implementation of the suspension against them. On 10 April 2007, petitioners filed a Motion to Withdraw Motion for Reconsideration with the CA, alleging that because of the service of the notice of preventive suspension, the motion for reconsideration could no longer be pursued since the act sought to be restrained had already been performed. On 11 April 2007, petitioners filed the instant Petition for Certiorari with the SC with a prayer for immediate issuance of a TRO and/or writ of preliminary mandatory injunction. On 23 April 2007, the SC required respondents to comment on the petition without acting on the TRO prayer. On 27 April 2007, petitioners filed an Urgent Motion to Resolve Prayer for Temporary Restraining Order with Manifestations, stating that the suspension had caused damage to Radaza’s bid for re-election and that their involvement was not clearly set forth in the Final Evaluation Report. On 4 June 2007, petitioners moved to withdraw the petition as to Radaza in view of his re-election as Mayor of Lapu-Lapu City; the SC granted the motion on 13 June 2007. The Ombudsman filed its Comment on 29 June 2007, and on 12 December 2007 the SC ordered petitioners to file their Reply. The six-month suspension of Cuizon, Taga-an, Jr., and Veloso commenced on 4 April 2007 and lapsed on 1 October 2007, while Radaza’s suspension was implemented on 3 April 2007 but he later withdrew his petition after his re-election. The administrative case was later terminated by the Ombudsman’s Decision dated 31 January 2008.

• No Strong Evidence of Guilt: Petitioners contended that the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the preventive suspension order because there was no strong evidence of guilt to warrant it.
• National Government Project and Ministerial Signing: Petitioners argued that the procurement and installation of decorative lamp posts and street lighting facilities in Lapu-Lapu City were entirely the national government’s project; the POWE was prepared by DPWH-Region VII, and they merely signed it because the project was already pressed for time.
• TRO and Preliminary Injunction: Petitioners claimed entitlement to a TRO and/or preliminary injunction because the preventive suspension violated their rights in esse and its impending enforcement would inflict grave injustice and irreparable injury.
• Omnibus Election Code: Petitioners argued that the preventive suspension violated Section 261(x) of the Omnibus Election Code, which prohibits suspension of elective officials during the election period without COMELEC approval.
• Deprivation of Salaries: Petitioners argued that the preventive suspension deprived them of their salaries for its duration.
• No Necessity for Suspension: Petitioners maintained that there was no necessity to remove or suspend them because their continued exercise of functions would not jeopardize or hamper the Ombudsman’s investigation, and the order did not serve its statutory purpose.
• Procedural Due Process: Petitioners argued that their constitutional right to procedural due process was violated when the Ombudsman summarily issued the preventive suspension order.
• Length of Suspension: Petitioners argued that the length of the preventive suspension was unwarrantedly drawn out, signifying the arbitrariness of the order.
• Radaza’s Reliance on Subordinates: As to Radaza alone, petitioners invoked Arias vs. Sandiganbayan, G.R. No. 81563, December 19, 1989, to argue that he could not be held liable as local chief executive for relying on his subordinates when he signed the POWE, whether to approve or merely note it.

• Failure to Exhaust Remedies: The Ombudsman argued that petitioners failed to exhaust available ordinary remedies before filing their petition before the SC.
• No Grave Abuse of Discretion: The Ombudsman argued that it did not act with grave abuse of discretion in issuing the preventive suspension order against petitioners.

• Mootness: Whether the petition challenging the Ombudsman’s order of preventive suspension became moot and academic after the six-month suspension lapsed and the administrative case was terminated.
• Exceptions to the Moot-and-Academic Doctrine: Whether any recognized exception to the moot-and-academic doctrine obtains so as to require the SC to resolve the petition despite mootness.

• Mootness: Yes. The six-month preventive suspension had lapsed and the Ombudsman had terminated Administrative Case No. OMB-V-A-07-0122-C, so there was no remaining preventive suspension to adjudicate.
• Exceptions to the Moot-and-Academic Doctrine: No. None of the recognized exceptions—grave constitutional violation, exceptional character and paramount public interest, need for controlling principles, or repetition yet evading review—was present.

• Mootness: The SC found that supervening events after the 11 April 2007 filing had removed any justiciable controversy. The Ombudsman’s 29 March 2007 Order placed petitioners under six months’ preventive suspension, and petitioners received copies on 30 March 2007. DILG Secretary Puno issued memoranda implementing the Order: Radaza on 3 April 2007, and Cuizon, Taga-an, Jr., and Veloso on 4 April 2007. Petitioners did not move for reconsideration of the Ombudsman’s Order under Section 8, Rule III of the Ombudsman Rules, but instead filed a Rule 65 petition with the CA; they obtained no TRO or preliminary injunction from the CA or the SC, so the suspension period was never interrupted. The six-month suspension of Cuizon, Taga-an, Jr., and Veloso commenced on 4 April 2007 and lapsed on 1 October 2007; Radaza had earlier been allowed to withdraw from the petition after his re-election. The Ombudsman then rendered its 31 January 2008 Decision in Administrative Case No. OMB-V-A-07-0122-C, finding Cuizon, Taga-an, Jr., and Veloso guilty of Grave Misconduct and ordering their dismissal. Under Section 24 of Republic Act No. 6770, preventive suspension continues until the case is terminated by the Ombudsman but not more than six months without pay; both conditions had occurred—the six-month period expired on 1 October 2007 and the administrative case was terminated on 31 January 2008. Any ruling on the validity of the suspension or on the TRO/injunction would therefore be an exercise in futility.

• Exceptions to the Moot-and-Academic Doctrine: The SC acknowledged that the moot-and-academic doctrine does not automatically bar resolution where (a) there is a grave violation of the Constitution; (b) the exceptional character of the situation and paramount public interest are involved; (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; or (d) the case is capable of repetition yet evading review. It held that none of these circumstances obtained.

• Moot and Academic Doctrine — A case is moot and academic when supervening events cease to present a justiciable controversy, such that a declaration would no longer be of practical use or value. The SC applied it because the preventive suspension had lapsed and the administrative case had been terminated, leaving no relief to grant.
• Exceptions to the Moot and Academic Doctrine — The SC will not automatically decline to resolve a moot case where (a) there is a grave violation of the Constitution; (b) the exceptional character of the situation and paramount public interest are involved; (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; or (d) the case is capable of repetition yet evading review. The SC found none present.
• Preventive Suspension under Section 24, Republic Act No. 6770 — Preventive suspension continues until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when delay is due to the respondent’s fault, negligence, or petition. The SC applied it by noting that the six-month period had expired and the administrative case had been terminated.

• “The Court finds that the Petition at bar has indeed become moot and academic. By virtue of the supervening events that transpired after the filing of the instant Petition on 11 April 2007, the same has ceased to present a justiceable controversy, such that a declaration thereon would no longer be of practical use or value.” — The core mootness holding; the SC explains that later events removed any live controversy.
• “All told, a determination by this Court of the issues of the validity of the issuance of the order of preventive suspension against petitioners and the propriety of a TRO and/or a preliminary injunction to arrest the injurious effects of the same would merely be an exercise in futility as there is no more preventive suspension to speak of.” — The SC explains why it did not reach the merits of the suspension and injunction issues.
• “Under Section 24 of Republic Act No. 6770, the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case, the period of such delay shall not be counted in computing the period of suspension herein provided.” — The statutory rule applied; the SC found both the six-month expiry and the termination of the administrative case.
• “And although the Court has previously ruled that the “moot and academic” doctrine will not automatically dissuade it from resolving a case where (a) there is a grave violation of the Constitution; (b) the exceptional character of the situation and the paramount public interest is involved; (c) when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; and (d) the case is capable of repetition yet evading review, none of the said circumstances are obtaining in the instant case.” — The SC enumerates the exceptions to the moot-and-academic doctrine and finds none applicable.

• David vs. Macapagal-Arroyo, G.R. No. 171369, 3 May 2006, 489 SCRA 160 — Controlling precedent cited for the moot-and-academic doctrine and its exceptions; the SC applied its four exceptions and found none present.

• Section 24, Republic Act No. 6770 (The Ombudsman Act of 1989) — The SC applied the rule that preventive suspension continues until the case is terminated by the Ombudsman but not more than six months without pay, except for delay attributable to the respondent; both the six-month expiry and the termination of the administrative case had occurred.
• Article 13, New Civil Code — The SC used the rule that a month is thirty days and that the first day is excluded and the last included in computing the period; thus the six-month suspension commencing 4 April 2007 ended on 1 October 2007.
• Section 8, Rule III, Rules of Procedure of the Office of the Ombudsman — The SC noted that a motion for reconsideration or reinvestigation may be filed within ten days from receipt on grounds of newly discovered evidence or grave errors of fact or law or serious irregularities; petitioners did not avail of it before filing the CA petition.