SolGen asks CA to junk Tupas' plea for injunction
The Office of the Solicitor General has asked the Court of Appeals division in Cebu City to deny the petition for injunction filed by Gov. Niel Tupas and Board Members Domingo Oso and Cecilia Capadosa for lack of merit.
Tupas, Oso and Capadosa were earlier dismissed by Ombudsman Merceditas Gutierrez for grave misconduct.
The 31-page memorandum, filed last February 2, 2007, was signed by now Supreme Court justice, Antonio Eduardo Nachura. The memorandum was in opposition to the petition of Tupas, Oso and Capadosa to prevent the Office of the Ombudsman and the Department of Interior and Local Government from implementing the order for their dismissal on the ground that it was not yet final and executory. Impleaded as respondents in the petition were Gutierrez, Interior Sec. Ronaldo Puno and Vice Gov. Roberto Armada, who was sworn in to replace Tupas.
Nachura raised three points: that the Court of Appeals had no jurisdiction over the petition, and that Tupas, Oso and Capadosa are not entitled under the law to a writ of injunction.
He pointed out that under Republic Act 8246, Tupas, Oso and Capadosa should have filed their petition before the CA in Manila because this was where the questioned decision was rendered.
Nachura also noted that while the law requires the applicant for an injunctive writ to have a clear legal right, the three petitioners failed to show the existence of said right.
“Petitioners have no clear and legal right to their office. There is no such thing as vested interest in or an estate in an office, or even an absolute right to hold it,” Nachura argued.
Tupas' reliance on the doctrines enunciated by the Supreme Court in Lapid vs. CA, Lopez vs. CA, and Ombudsman vs. Laja were misplaced, The SolGen contended. Nachura said that these cases were decided prior to the issuance of Administrative Order 7, as amended by AO 17, which provides for the execution of an Ombudsman decision notwithstanding an appeal.
“An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and other emoluments that he did not receive by reason of the suspension or removal,” Nachura quoted AO 7.