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On Preventive Suspension
« on: October 21, 2016, 11:06:44 AM »
By Atty. Chic Baluma
Published on Oct 22, 2006 by The Bohol Standard Newspaper

Public Officers under our laws are accountable to the people. They are to serve the people with utmost responsibility, loyalty and efficiency and act with patriotism and justice and lead modest lives.

Lately, our televisions, radios and newspapers are occupied with news concerning the preventive suspension imposed on some local government officials. The preventive suspension imposed on said officials most often has caused chaos and/or further rift between the supporters of the suspended officials and the supporters of the party responsible or having a hand in the suspension of said officials and/or those who are waiting in line to assume the post temporarily vacated by the suspended officials.

One of the officials meted a preventive suspension even managed to secure a Temporary Restraining Order due to “ the extreme urgency of the situation and … possible injury” if the suspension would not be restrained. This ruling of the Court of Appeals has defused certainly the apparent tension and heat created because of the officials suspension. Potential political crisis and massive street protest were avoided because of the court’s order.

While we always hear the outcry of the suspended officials, pointing political harassment as the root cause of the case, the imposing authority always emphasizes that they are just acting within the bounds of law.

There are many bodies who are given the power to preventively suspend government officials/ employees. Preventive suspension may be ordered by the Office of the Ombudsman, the Sandiganbayan, or the proper disciplining authority of the Civil Service. The President, the governor and the mayor possess also the power of preventive suspension in appropriate cases.

There are two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension. First is the preventive suspension pending investigation , under Sec. 51, Book V, Title 1, Sub Title A of the Administrative Code of 1987 and the other is the preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated.

A preventive suspension is not a penalty. It is only a measure intended to enable the disciplining authority to investigate charges against the respondent by preventing the latter from influencing witnesses or tampering with vital records which may aid in the prosecution against him. A preventive suspension can even be ordered without a hearing, because such suspension is not a penalty but only a preliminary step to administrative investigation.

In criminal cases, a law calling for preventive suspension is found in Section 13 of R.A. NO. 3019 which provides:

“ Section 13. Suspension and loss of benefits.- Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government.”

For elective officials, another legal basis is Section 63 of the Local Government Code. This provision provides:

“Section 63. Preventive Suspension-

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That , any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (12) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.”

The Ombudsman’s power of preventive suspension is governed by Republic Act No. 6770, otherwise known as the “The Ombudsman Act of 1989”, which provides:

“Section 24. Preventive suspension.- The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.

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.”

It can be argued that the reason for the shorter period of preventive suspension imposable under the Local Government Code is that political color may taint the exercise of the power to suspend local officials. The period set forth under R.A. No. 6770, “ The Ombudsman Act of 1989” is different, since it provides for a six-month limit. The Office of the Ombudsman, being a Constitutional body is a different independent body, in fact the Constitution has endowed the Ombudsman with safeguards to ensure immunity from political pressure.

While there is the possibility of abuse in the exercise of the power of imposing preventive suspension, there is no reason to strike down the grant of such power. The law provides for the proper remedies against abuse in the exercise of the power, such as a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure.

Everyone must be guided by the principle “ That the voice of the people is the supreme law”. Preventive suspensions must only be imposed when necessary and not for any other reason. The welfare of the public in general must be given primary consideration.

Romans 10:9-10
"If you declare with your mouth, Jesus is Lord, and believe in your heart that God raised him from the dead, you will be saved. For it is with your heart that you believe and are justified, and it is with your mouth that you profess your faith and are saved."

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