Atty. Ensign M. Icamen

Tag: Administrative and Public Law

  • Collusion and Grave Misconduct by Public Officers and Employees

    Collusion and Grave Misconduct by Public Officers and Employees

    October 1, 2021

    Collusion and Grave Misconduct in Philippine administrative law involving public officials.

    Grave misconduct committed by a public officer that will warrant his/her dismissal from the service must not be a mere failure to comply with the law. Also, an allegation of collusion must be proved by clear and convincing evidence to justify removal of a public officer from service.

    Legal standards for proving Collusion and Grave Misconduct among government employees.

    The case of Jaspe, Noel T. and Araneta, Ma. Negenia vs. Public Assistance and Corruption Prevention Office and Agustin Sonza G.R. No. 251940, July 12, 2021 grave misconduct that may warrant dismissal of a public officer was defined as follows:

    “Grave misconduct is defined as the “wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose.” It is not mere failure to comply with the law. Failure to comply must be deliberate and must be done in order to secure benefits for the offender or for some other person.”

    “For a charge of grave misconduct or any grave offense to prosper, therefore, the evidence against the respondent should be competent and must be derived from direct knowledge. Reliance on mere allegations, conjectures and suppositions, as in this case, warrants the dismissal of the charge.”

    Likewise in the same case, it was pronounced that to warrant a dismissal of a public officer or employee from the service based on collusion with parties in a public bidding, the person charging collusion must prove it by clear and convincing evidence. The Supreme Court ruled that:

    “On this score, Desierto v. Ocampo pronounced that the complainant charging collusion must prove it by clear-and convincing evidence, thus:

    “Collusion implies a secret understanding whereby one party plays into another’s hands for fraudulent purposes. It may take place between and every contractor resulting in no competition, in which case, the government may declare a failure of bidding. Collusion may also ensue between contractors and the chairman and members of the PBAC to simulate or rig the bidding process, thus insuring the award to a favored bidder, to the-prejudice of the government agency and public service. For such acts of the chairman and the members of the PBAC, they may be held administratively liable for conduct grossly prejudicial to the best interest of the government service. Collusion by and among the members of the PBAC and/or contractors submitting their bids may be determined from their collective acts or omissions before, during and after the bidding process. The complainants are burdened to prove such collusion by clear and convincing evidence because if so proved, the responsible officials may be dismissed from the government service or meted severe administrative sanctions for dishonesty and conduct prejudicial to the government service.”

    Further, Desierto ordained that mere declaration of a lone winning bidder does not necessarily mean there was collusion, absent a showing that the BAC members were closely associated with the bidders, thus:

    “We believe that in this case, the complainants failed to prove that there was collusion by and among the contractors and the chairman and members of the PBAC. The PBAC may have erred in waiving the defects in the bids of Carwin Construction and Ed-Mar’s Construction on the belief that the defects were minor, but it does not follow that its members, including the respondent, conspired with the contractors to rig the bid process. Carwin Construction and Ed-Mar’s Construction may have, likewise, submitted defective bid documents but, absent any other evidence, it cannot thereby be concluded that there was conspiracy to rig the bid process to insure that PR T Construction would emerge the lone and winning bidder. The chairman and members of the PBAC may have, likewise, erred in the performance of their duties, but it does not necessarily mean that they did so in bad faith or with dishonesty.”

  • Gender-Biased or Sexual Orientation-Biased Slurs Have No Place in Courts

    Gender-Biased or Sexual Orientation-Biased Slurs Have No Place in Courts

    July 13, 2022

    Any form of discrimination by reason of gender or sexual orientation made by a judge and directed against any person with business before the court shall never be tolerated and must be strongly rebuked.

    A lawyer engaged in litigation of cases, appearing in courts and arguing cases before a judge, will always certainly come across a judge who’s so domineering and so imposing that will sometimes just make the lawyer keep his/her mouth shut, avoid engaging that judge, and just hope the hearing be finished as he/she just wants to get over with it. I would always pray that I may be spared of judges like them in my cases. But if the luck is not really in your favor, you may encounter these kind of judges. Some would even belittle the law school where that lawyer graduated. Some would make nasty comments on the way a lawyer is dressed. I mean, it is mandatory that a lawyer should appear in court properly attired, but it is different if a comment picks on the lawyer’s choice of outfit especially if such outfit is not really disturbing. Some would impose their religious beliefs on the litigants.

    This is the case of Marcelino Espejon and Erickson Cabonita vs. Hon. Jorge Emmanuel M. Lorredo, Presiding Judge, Metropolitan Trial Court, Manila, Branch 26 wherein, the judge uttered and/or made comments which are gender-biased. He lectured the litigants before his court about some biblical teachings. When I read the case, I did not wonder because I once appeared before this judge in his sala situated in the old Ombudsman building directly across LRT 1 Central Terminal. Here the Hon. Supreme Court made the following pronouncements:

    1. The Hon. Supreme Court clarified what is misconduct. – “Misconduct is defined as a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. In order to differentiate gross misconduct from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule, must manifest in the former. In other words, it must be shown that the acts complained of were committed with fraud, dishonesty, corruption, malice or ill will, bad faith, or deliberate intent to do an injustice.63 Wrongful intention, therefore, sits at the core of the offense of gross misconduct. For all of Judge Lorredo’s faults in this case, the elements of gross misconduct are nonetheless wanting.”
    2. The Hon. Supreme Court reminded the judges that they are obliged, at all times, to observe propriety, discreetness and due care. – “As a final word, the Court once again finds it imperative to remind members of the bench that while not every error or mistake in the performance in their official duties may render them administratively liable, absent proof of fraud, dishonesty, corruption, or conscious and deliberate intent to cause an injustice, they are still obliged, at all times, to observe propriety, discreetness and due care in the performance of their official functions. While judges are not completely stripped of their freedom to express, exercise, or uphold their religious beliefs and convictions, it goes without saying that in doing so, their foremost duty to obey the rule of law should not stand to suffer. As the Court has consistently said in the past, obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless.”

    The Hon. Supreme Court reminded that any form of sexual orientation or gender discrimination shall never be tolerated and must be strongly rebuked. – “At the same time, the Court has always espoused care in the conduct of judicial proceedings, ever sensitive not to unjustifiably offend the litigants and erode the public’s confidence in our justice system. Thus, any form of discrimination by reason of gender or sexual orientation made by a judge and directed against any person with business before the court shall never be tolerated and must be strongly rebuked. Judge Lorredo must be reminded that the Court has already made a recognition of the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. The Court is cognizant that they have suffered enough marginalization and discrimination within our society. It is not difficult to imagine the reasons behind this censure — religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of members of the LGBTQIA+ community themselves and their perceived lifestyle. Inasmuch, however, that these so-called “generally accepted public morals” have not been convincingly transplanted into the realm of our law, there should be no reason for judges to add to the burdens of members of the LGBTQIA+ community through the swift hand of judicial review, or to effectively lend a hand in perpetuating the discrimination they face, whether that effort is self-evident or thinly veiled under claims of religious beliefs or freedom of expression.”

    Reference

    [1] A.M. No. MTJ-22-007 (Formerly OCA IPI No.19-3026-MfJ)