Former President Rodrigo R. Duterte has been exonerated by the Supreme Court (SC) of simple misconduct for which he was imposed a six-month suspension when he was Davao City mayor, a post he had held for more than two decades until 2016.
In a decision promulgated on March 15, 2023 and made public last June 30, the SC affirmed the 2011 ruling of the Court of Appeals (CA) that reversed the 2010 order of the Office of the Ombudsman (OMB) on the suspension of Duterte and five other city officials.
Also exonerated in the SC decision written by Senior Associate Justice Marvic M.V.F. Leonen were Wendel E. Avisado, city administrator; Jose D. Gestuveo Jr., city engineer; Elmer B. Rano and J. Melchor V. Quitain, city legal officers; and Yusop A. Jimlani, chief of the city’s drainage and maintenance unit.
The complaint against Duterte as mayor and the other city officials was filed before the OMB by the late former Speaker Prospero C. Nograles who was also then Davao City 1st District representative.
The controversy arose from the 2006 Canal-Cover project initiated by Nograles in Davao City’s Quezon Boulevard “to secure the residents and children from any untoward accident, prevent disposal of garbage and clogging of canal and prevent emission of foul odors."
The case records stated that “since concrete flooring was constructed on top of the drainage canal, silt and garbage could not be dredged, impeding the flow of water.”
In 2008, the Davao City government informed the Department of Public Works and Highways (DPWH) of the problem generated as a result of the construction of the concrete flooring.
The DPWH constructed several manholes on the concrete flooring of the canal. With the flooding still happening, Davao City wrote DPWH and informed the department of its plan to remove the concrete flooring.
Later in September 2008, the city’s legal office issued a legal opinion which declared the Canal-Cover project as a public nuisance for obstructing the free flow of water as it was constructed on top of the drainage system without a permit from the local building official.
The demolition started on Oct. 16, 2008 after the district engineer of the DPWH was informed through a letter sent by the city engineer.
On Oct. 22, 2008, Nograles sought a legal opinion from the Department of Justice (DOJ). Through then secretary Raul M. Gonzales, the DOJ said “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.”
But the DOJ also said that “the lack of permit, however, does not per se make the structure subject to immediate demolition since Section 103 10 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.”
“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,” the DOJ’s opinion also stated.
Nograles then filed before the OMB a complaint for grave misconduct against Duterte and grave abuse of authority against the other city officials.
On top of impeding the free flow of water, the city officials told the OMB that the concrete cover of the Canal-Cover project was named “Nograles Park” in violation of the Local Government Code, which requires the approval of the Sangguniang Panlungsod (City Council) for the naming and construction of public parks.
On April 21, 2010, the OMB found Duterte and the other city officials guilty of simple misconduct and ordered their six-month suspension.
Duterte and his co-officials elevated the case to the CA. On Aug. 4, 2010, the CA stopped the OMB from implementing its order pending resolution of the petition on its merits.
On Jan. 28, 2011, the CA reversed the OMB with a ruling that Duterte and the other city officials could not be held liable for simple misconduct for the project’s demolition.
The CA ruled that while the Canal-Cover Project was not a nuisance per se, the concerned public officials could not be held liable for simple misconduct for the project's demolition.
It said that under Section 477 of the Local Government Code, the city engineer also acts as the local building official, thus, a permit from the local building official was unnecessary for the demolition.
The OMB and Nograles, in separate petitions, elevated the CA’s ruling before the SC.
Denying the petitions, the SC ruled:
“Respondents’ (Duterte and the other city officials) 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 Court of Appeals, however, have 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 Implementing Rules and Regulations.
“However, as explained, 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 Court of Appeals' finding that respondents were not guilty of simple misconduct.
“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.
“Thus, the Court of Appeals 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 Court of Appeals of its decision on the merits.
“Even granting that the Court of Appeals would later absolve respondents (Duterte and the other city officials), and that its Decision would later be affirmed by this Court, 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 point 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.
“As earlier stated, 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 the courts 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, therefore, should serve as a reminder to the courts to maintain its 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.
“Accordingly, the petitions are denied. The Decision of the Court of Appeals in CA-G.R. SP No. 113919 is affirmed. So ordered.”