Order against Gwen was executory but not final, didn’t violate Q#22

The ombudsman order was not executed by the House and is still pending before Court of Appeals. Garcia’s answer may be incomplete but not false

Lawyer Edgar Gica, a former Cebu Provincial Board member, filed last Monday (Oct. 22) a petition with Comelec Manila seeking to cancel the certificate of candidacy (COC) of Rep. Gwen Garcia, who is running for governor in 2019.

House Deputy Speaker Gwen, Gica alleges, (1) is ineligible to run and (2) falsely declared in her certificate of candidacy that she is eligible to run.

Patriarch of the Gica family that has been the political rival of the Garcias in Dumanjug, Cebu, Edgar is father of Dumanjug Mayor Gungun Gica, who himself had been the target of disqualification charges. The bad blood provides motive for the petition but how much of the complaint rests on firm legal ground?

Ombud order, Q#22

True, the ombudsman announced last Feb. 12 its order dismissing Gwen from public office for “grave misconduct” in connection with a P24.46 million project in Naga. Then ombudsman Conchita Carpio-Morales signed the Jan. 15 order meting out the penalties, which included perpetual disqualification from holding public office, cancellation of eligibility, and forfeiture of retirement benefits. But the said order has been raised to the Court of Appeals where it is still pending.

True, Gwen in her Oct. 13 COC. answered “No” to Question #22, which asked about whether she had been found liable for an offense that carries, among others, the penalty of perpetual disqualification. But the said question carries the qualifier “final and executory.” Was Gwen being untruthful when she answered “No”? She was found liable for that kind of an offense but, at time of filing, the order was not yet “final and executory.” More accurately, if we rely on the ombudsman’s office guidelines, it was executory but not final.

Not yet final…

The office of the ombudsman website carries a section called “Frequently Asked Questions” and one question is about the issue that Gica raised: finality.

“In case of conviction where the penalty imposed is public censure, reprimand, suspension of not more than one month, or a fine equivalent to one- month salary, the decision shall be final. In all other cases, the decision may be appealable to the Court of Appeals…”

The Jan.15 order against Gwen was obviously not yet final. She appealed to the CA, which rejected her plea for a restraining order but proceeded to consider her main plea to reverse the ombudsman ruling.

But executory

The order was already executory, under ombudsman interpretation of the law. “An appeal,” its guidelines say, “shall not stop the decision from being executory.”

If Gwen were a public official other than a member of Congress, she would’ve been bodily removed from office already. She knew that when last Dec. 19, 2012, as Cebu governor she was served with then president Noynoy Aquino’s suspension order. But an ombudsman order to the House speaker, or Senate president, may be ignored, as was done for Gwen, then by Pantaleon Alvarez, now by Gloria Arroyo.

Executory but not executed. And not yet final.

Incomplete, not false

That should make Gwen’s “No” answer to Q#22 in her COC incomplete but not false. Gica is suing for perjury in the Comelec statement but the Comelec itself, through its spokespersons, has been advising candidates to answer in the negative if the case under which one is found liable is not yet final and executory.

Gica may have to wait for the outcome of the case at CA or, if raised higher, the Supreme Court. Or that of other cases pending before Sandiganbayan. That could be a long wait.