1 week Ago By Atty. Pachico A. Seares
[] Mayor Garcia and his camp appear to have the color of title: Ombudsman decisions, DILG enforcement. The badges of regularity are in their favor, for now. [1] BAD IMAGE TO OFFICES.
Neither the former Cebu City administrator, Atty. Collin Rosell, nor the PNP officers, led by city police chief Antonietto Cañete, have given a sterling image of their respective offices from the November 8 (2024) confrontation at City Hall. Rosell could've waited for an Ombudsman or court order before retaking the post to which he was appointed on April 3, 2023 by then mayor Michael "Mike" Rama.
An inquiry with the Department of the Interior and Local Government (DILG) would've been prudent. The police could've waited for a warrant of arrest from the court as there was still no reasonable certainty that Rosell's acts constituted a crime. What he did, before the resistance, was not the kind of crime that would prompt the police to take Rosell into custody right there and then.
Many people were stunned by published images of the incident, which showed the lawyer and former No. 2 official of the City Government, a bulky person, being subdued by armed police officers . [2] WAS THERE CRIME OF USURPATION OF AUTHORITY or official functions, which would justify the arrest of Atty.
Rosell? The crime of usurpation of authority (under the Revised Penal Code, Art. 177, as amended) is committed when a person shall "knowingly and falsely represent himself to be an officer, agent or representative of any department or agency of the Philippine Government..
. or who, under pretense of official position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or any agency thereof without being entitled to do so." Rosell was city administrator under then mayor Michael Rama and was suspended with him and five others for six months last May 8, 2024.
The period of suspension had already lapsed the day Rosell allegedly usurped authority. Rosell must believe he already had the right to resume his duties. Mayor Garcia and Atty.
Kristine Joyce Batucan, whom he appointed to replace Rosell last May 13, didn't agree. The dispute, already raised to the Supreme Court, would make the crime for which Rosell was arrested disputable and uncertain. Rosell's alleged crime may not be an "in flagrante" offense -- such as murder, robbery or rape -- of which the arresting police had "personal knowledge of facts and circumstances.
" A retired judge and one practicing lawyer told me separately that "no crime was committed in flagrante delicto," which would justify the warrantless arrest. The ex-judge said the arresting officers "may be held administratively liable for grave abuse of authority or criminally liable for grave coercion." Said the lawyer: "Not a crime.
Still has to be determined if it is. Overkill!" [3] THOSE HANDCUFFS. Under PNP rules, contained in a handbook first published in 2008, provides that once an arrest is made, PNP must "secure the person to be arrested and use handcuffs for the protection of the arresting officer, other individuals, or the arrested person himself.
" They can use other "methods of restraint if handcuffs are not available but are prohibited from using torture, force, violence, threat, intimidation, or any other means which vitiate free will." A basic policy is found in Rule 1 that orders police personnel involved in an arrest to "respect human rights and dignity of suspects during police operations." The suspect, under PNP rules, has to be restrained by handcuff or any other "method of restraint.
" No way out of that. But then the arrest was vigorously opposed by Rosell, who stoutly believed it was unlawful as he didn't commit any crime and if he did, it still had to undergo investigation and a charge filed before he could be arrested. Here's the thing: If he hadn't committed a crime before the arrest, he may have committed one -- resisting arrest and disobedience -- when the police had to grapple, if not wrestle, with him to put on the handcuffs.
[4] CORE OF CONFLICT: RAMA SUSPENSION, DISMISSAL. It started with suspension, which temporarily removed elected mayor Michael "Mike" Rama from his seat for six months. He, with Rosell and six other City Hall officials held responsible by the Ombudsman for delaying the release of salaries of four regular employees at the assessor's office.
Before Rama could fully serve the suspension period, the Ombudsman ordered him dismissed for nepotism: He hired two brothers-in-law. Then acting mayor Garcia, who took over under the law on succession, was installed as full-fledged mayor. Rama lost his seat temporarily with the suspension, then lost it more or less permanently when he was dismissed and Garcia was installed in his place.
Rosell and other officers and employees who were coterminous with Rama also lost their positions in government they had secured under Rama's appointing power. Their offices were filled by people whom the new mayor appointed to take their places. [5] WHICH GROUP HAS COLOR OF TITLE? Rama and his camp contend that the dismissal was illegal and Garcia's ascent was illegal; so was the takeover of their positions by Garcia-appointed persons.
Garcia and his camp argue Rama was dismissed in accordance with the law and its process, and he (Garcia) and his appointees took over lawfully. The two views collide and clash. Apparently in an organized attempt by the Rama camp -- complete with protesters making a noisy scene outside City Hall -- Rosell pushed its claim by returning to his office and having failed to get into the room locked from inside, stationing himself and his aides in the mayor's conference room, where the epic handcuffing took place.
It was pretty obvious that however substantial the Rama camp's claim can be, the Garcia camp appears to have the law on its side and its claim bears the color of title, for now. The badges of regularity: (a) Ombudsman decisions; (b) DILG enforcement of the orders, topped by the installation of Garcia; and (c) the law on coterminous appointments. Compare that with the nature of the Rosell comeback: no order from the Ombudsman favoring the return.
On the contrary, the Court of Appeals on May 17 dismissed a Rama petition for certiorari and the Ombudsman on June 20 denied a Rama petition to lift its order of suspension. The Supreme Court issued a temporary restraining order (TRO) against the Comelec to stop cancellation of COCs of candidates like Rama and Mandaue City Mayor Jonas Cortes. But it didn't cover Rama's dismissal.
The high court still has to decide on the legality of the Ombudsman order, which DILG implemented. [6] DEFENSE OF GOOD FAITH. Prosecutors will look into the accusation of usurpation of authority against Rosell, who can set up the defense of good faith.
That is, he truly believes that the law supported his actions in returning to his office to do his job, a mandate that he cited, just as Garcia cited his duty to take over the mayorship. As police asked him to go with them, he said, "I have many things to do here," which didn't answer the legal question but told of his desire to do his work as city administrator. Prosecutors will look at circumstances and context.
If they decide to file a charge, the judge will then examine the facts and the law. Which must be the reason that it wasn't an "in flagrante delicto" case that would justify immediate arrest. The claim of good faith though may be assaulted with evidence that says it was a strategy to dramatize the Rama camp's political cause and draw public support and that Rosell and his colleagues knew the actual legal leg they're standing on but would keep fighting anyway.
Or simply, that the facts and the law say otherwise. Rosell must know that Rama's dismissal also terminated his appointment. Former city administrator, citing Civil Service Commission Resolution #1800692-2017, told me "Rosell automatically ceased to be city administrator the moment Rama was dismissed!" He was a private citizen or at least an ex-city official when Rosell entered City Hall, Villarete said.
[7] THEY COULD'VE BEEN MORE PRUDENT. Given the legal dispute and public debate over rights of the suspended-then-dismissed mayor, Rama and Rosell could've been a bit prudent by inquiring about the question of returning to work. They did so about the Comelec announcement regarding COCs.
They went to the Supreme Court and got a TRO. They should've studied their response the way they answered the threat of not having the name of Rama on the May 2025 balls. Prudence could have avoided the embarrassment and furor that resulted from their attempt to return to City Hall.
Police, cautioned by Mayor Garcia to observe "maximum tolerance," could've been more patient and careful about deciding on and doing the arrest. The need was to keep the peace and there was peace until the force-laden arrest disrupted it. As to the notice from the former city administrator to the employees, it created no imminent danger and it was yet uncertain if that constituted a crime.
Besides, that "offense" -- unlike robbery, wounding, or killing -- was not the kind where Rosell should be taken down and removed at once. It could hardly be called trespass as City Hall is a public place and Rosell didn't show criminal intent in going there. It was not like Rosell bringing with him people and equipment to physically take control of the offices and disrupt the business the City Government does.
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