case digest on local government
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office of the ombudsmanTRANSCRIPT
G.R. No. 108072 December 12, 1995
HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the Visayas, petitioner, vs.HON. MERCEDES GOZO-DADOLE, Presiding Judge, Branch XXVIII, Regional Trial Court, Mandaue City, Mandaue City Mayor ALFREDO M. OUANO, Mandaue City Vice-Mayor PATERNO CAÑETE and Mandaue City Sangguniang Panlungsod Member RAFAEL MAYOL, respondents.
VITUG, J.:
The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770, 1 otherwise known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative investigations over local elective officials by virtue of the subsequent enactment of R.A. No. 7160, 2 otherwise known as the Local Government Code of 1991, is the pivotal issue before the Court in this petition.
The petition seeks (a) to annul the writ of preliminary injunction, dated 21 October 1992, issued against petitioner by respondent trial court and (b) to prohibit said court from further proceeding with RTC Case No. MDE-14. 3
Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed the office of Juan Hagad, now resigned, 4 who took the initiative in instituting this special civil action for certiorari and prohibition.
The controversy stemmed from the filing of criminal and administrative complaints, on 22 July 1992, against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the Visayas. The respondents were charged with having violated R.A. No. 3019, as amended, 5 Articles 170 6 and 171 7 of the Revised Penal Code; and R.A. No. 6713. 8Councilors Dionson and Bercede averred that respondent officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. The complaints were separately docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative Case No. OMB-VIS-ADM-92-015.
A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against respondent officials. The next day, petitioner ordered
respondents, including Acting Mandaue City Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede moved for the preventive suspension of respondent officials in the separately docketed administrative case.
Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992, prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 of the Local Government Code of 1991, the power to investigate and impose administrative sanctions against said local officials, as well as to effect their preventive suspension, had now been vested with the Office of the President.
In their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local Government Code of 1991 could not have repealed, abrogated or otherwise modified the pertinent provisions of the Constitution granting to the Ombudsman the power to investigate cases against all public officials and that, in any case, the power of the Ombudsman to investigate local officials under the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of 1991.
During the hearing on the motion for preventive suspension, the parties were directed by the Deputy Ombudsman to file their respective memoranda.
In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local Government Code of 1991, the Office of the President, not the Office of the Ombudsman, could lawfully take cognizance of administrative complaints against any elective official of a province, a highly urbanized city or an independent component city and to impose disciplinary sanctions, including preventive suspensions, and that there was nothing in the provision of the Constitution giving to the Office of the Ombudsman superior powers than those of the President over elective officials of local governments.
In an Order, 9 dated 10 September 1992, the Office of the Deputy Ombudsman denied the motion to dismiss and recommended the preventive suspension of respondent officials, except City Budget Officer Pedro M. Guido, until the administrative case would have been finally resolved by the Ombudsman. 10 Respondent officials were formally placed under preventive suspension by the Deputy Ombudsman pursuant to an Order 11 of 21 September 1992.
On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary injunction and temporary restraining order, was filed by respondent officials with the Regional Trial Court of
Mandaue City. Acting favorably on the pleas of petitioning officials, respondent Judge issued, on even date, a restraining order directed at petitioner, enjoining him ". . . from enforcing and/or implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015."
Petitioner moved to dismiss the petition but it was to no avail. The court a quo, on 15 October 1992, denied the motion to dismiss and issued an Order for the issuance of a writ of preliminary injunction, holding thusly:
So by following and applying the well-established rules of statutory construction that endeavor should be made to harmonize the provisions of these two laws in order that each shall be effective, it is the finding of this Court that since the investigatory power of the Ombudsman is so general, broad and vague and gives wider discretion to disciplining authority to impose administrative sanctions against a responsible public official or employee while that of Section 60 of the New Local Government Code provides for more well defined and specific grounds upon which a local elective official can be subjected to administrative disciplinary action, that it Could be considered that the latter law could be an exception to the authority and administrative power of the Ombudsman to conduct an investigation against local elective officials and as such, the jurisdiction now to conduct administrative investigation against local elective officials is already lodged before the offices concerned under Section 61 of Republic Act No. 7160.
xxx xxx xxx
WHEREFORE, foregoing premises considered, Order is hereby issued:
1) Expanding the restraining order dated September 25, 1992 issued by the Court into an Order for the issuance of a writ of preliminary injunction upon the posting of the petitioners of the bond in the amount of Fifty thousand pesos (P50,000.00) conditioned that the latter will pay all the costs that may be adjudged to the adverse party and/or damages which he may sustain by reason of the injunction, if the Court will
finally adjudge that the petitioners are not entitled thereto, and
2) Denying the respondent's Motion to Dismiss dated September 28, 1992 for lack of merit.
SO ORDERED. 12
A writ of preliminary injunction was issued on 21 October 1992. 13 A motion for reconsideration made by petitioner was denied by the trial court.
The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent judge be directed to desist from further proceeding with RTC Case No. MDE-14.
There is merit in the petition.
The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the 1987 Constitution, 14 thus:
Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient;
while his statutory mandate to act on administrative complaints is contained in Section 19 of R.A. No. 6770 that reads:
Sec. 19. Administrative complaints. — The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
Section 21 of the same statute names the officials who could be subject to the disciplinary authority of the Ombudsman, viz.:
Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied)
Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the Office of the Ombudsman correspondingly has the authority to decree preventive suspension on any public officer or employee under investigation by it. Said section of the law provides:
Sec. 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.
Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman over local officials must be deemed to have been removed by the subsequent enactment of the Local Government Code of 1991 which vests the authority to investigate administrative charges, listed under Section 60 15 thereof, on various offices. In the case specifically of complaints against elective officials of provinces and highly urbanized cities, the Code states:
Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint against any erring local elective officials shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President.
Thus respondents insist, conformably with Section 63 of the Local Government Code, preventive suspension can only be imposed by: ". . . the President if the respondent is an elective official of a province, a highly urbanized or an independent component city; . . . " under sub-paragraph (b) thereof:
(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 the 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.
In his comment, which the Court required considering that any final resolution of the case would be a matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as having conferred, but not on an exclusive basis, on the Office of the President (and the various Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a constitutional mandate. In passing, the Solicitor General has also opined that the appropriate remedy that should have been pursued by respondent officials is a petition for certiorari before this Court rather than their petition for prohibition filed with the Regional Trial Court.
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are not favored, 16 and that courts must generally assume their congruent application. 17 The two laws must be absolutely incompatible, 18 and a clear finding thereof must surface, before the inference of implied repeal may be drawn. 19 The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. 20 The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. 21 Hence, all doubts must be resolved against any implied repeal,22 and all efforts should be exerted in order to harmonize and give effect to all laws on the subject. 23
Certainly, Congress would not have intended to do injustice to the very reason that underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long tentacles of officialdom." 24
Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost parallel with the provisions then existing under the old code. Section 61 and Section 63 of the precursor local Government Code of 1983, 25 under the heading of "Suspension and Removal," read:
Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective officials shall be prepared as follows:
(a) Against any elective provincial or city official, before the Minister of Local Government.
Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official.
(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of suspension.
The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon the enactment of R.A. No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant. The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President.
Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a
public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.
Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when he caused the issuance of the preventive suspension order without any hearing.
The contention is without merit. The records reveal that petitioner issued the order of preventive suspension after the filing (a) by respondent officials of their opposition on the motion for preventive suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a preventivesuspension would occur prior to any finding of guilt or innocence. In the early case of Nera vs. Garcia, 26 reiterated in subsequent cases, 27 we have said:
In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and be given an opportunity to prove his innocence.
Moreover, respondent officials were, in point of fact, put on preventive suspension only after petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier, 28 that the evidence of guilt was strong. Petitioner gave his justification for the preventive suspension in this wise:
After a careful and honest scrutiny of the evidence submitted on record, at this stage, it is the holding of this office that the evidence of guilt against the respondents in the instant case is strong. There is no question that the charge against the respondents involves dishonesty or gross misconduct which would warrant their removal from the service and there is no gainsaying the fact that the charge for falsification of veritable documents like city ordinances are very serious charges that affect the very foundations of duly established representative governments. Finally, it is likewise the holding of this office at this stage that the continued stay in office of respondents may prejudice the judicious investigation and resolution of the instant case. 29
Finally, it does appear, as so pointed out by the Solicitor General, that respondent official's petition for prohibition, being an application for remedy against the findings of petitioner contained in his 21 September 1992 order, should not have been entertained by the trial court. The proscription in Section 14 of R.A. No. 6770 reads:
Sec. 14. Restrictions. — No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law.
Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court on matters involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman; thus:
Sec. 27. Effectivity and Finality of Decisions. — . . .
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (Emphasis supplied)
All told, petitioner is plainly entitled to the relief prayed for, and we must, accordingly; grant the petition.
WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is ANNULLED and SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED. No costs.
SO ORDERED.
OFFICE OF THE OMBUDSMAN, G.R. No. 172700Petitioner,- versus - ROLSON RODRIGUEZ, Respondent. July 23, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - D E C I S I O N CARPIO, J.: The Case This is a petition for review[1] of the 8 May 2006 Decision[2] of the Court of Appeals in CA-G.R. SP No. 00528 setting aside for lack of jurisdiction the 21 September 2004 Decision[3] of the Ombudsman (Visayas) in OMB-V-A-03-0511-H. The Antecedent FactsOn 26 August 2003, the Ombudsman in Visayas received a complaint[4] for abuse of authority, dishonesty, oppression, misconduct in office, and neglect of duty against Rolson Rodriguez, punong barangay in Brgy. Sto. Rosario, Binalbagan, Negros Occidental. On 1 September 2003, the sangguniang bayan of Binalbagan, Negros Occidental, through vice-mayor Jose G. Yulo, received a similar complaint[5] against Rodriguez for abuse of authority, dishonesty, oppression, misconduct in office, and neglect of duty.
In its 8 September 2003 notice,[6] the municipal vice-mayor required Rodriguez to submit his answer within 15 days from receipt of the notice. On 23 September 2003, Rodriguez filed a motion to dismiss[7] the case filed in the sangguniang bayan on the ground that the allegations in the complaint were without factual basis and did not constitute any violation of law. In a compliance[8] dated 22 October 2003, Rodriguez alleged complainants violated the rule against forum shopping.
Meanwhile, in its 10 September 2003 order,[9] the Ombudsman required Rodriguez to file his answer. Rodriguez filed on 24 October 2003 a motion to dismiss[10] the case filed in the Ombudsman on the grounds of litis pendentia and forum shopping. He alleged that the sangguniang bayan had already acquired jurisdiction over his person as early as 8 September 2003. The municipal vice-mayor set the case for hearing on 3 October 2003.[11] Since complainants had no counsel, the hearing was reset to a later date. When the case was called again for hearing, complainants counsel manifested that complainants would like to withdraw the administrative complaint filed in the sangguniang bayan. On 29 October 2003, complainants filed a motion[12] to withdraw the complaint lodged in the sangguniang bayan on the ground that they wanted to prioritize the complaint filed in the Ombudsman. Rodriguez filed a comment[13] praying that the complaint be dismissed on the ground of forum shopping, not on the ground complainants stated. In their opposition,[14]complainants admitted they violated the rule against forum shopping and claimed they filed the complaint in the sangguniang bayan without the assistance of counsel. In his 4 November 2003 Resolution,[15] the municipal vice-mayor dismissed the case filed in the sangguniang bayan.
In its 29 January 2004 order,[16] the Ombudsman directed both parties to file their respective verified position papers. Rodriguez moved for reconsideration of the order citing the pendency of his motion to dismiss.[17] In its 11 March 2004 order,[18] the Ombudsman stated that a motion to dismiss was a prohibited pleading under Section 5 (g) Rule III of Administrative Order No. 17. The Ombudsman reiterated its order for Rodriguez to file his position paper. In his position paper, Rodriguez insisted that the sangguniang bayan still continued to exercise jurisdiction over the complaint filed against him. He claimed he had not received any resolution or decision dismissing the complaint filed in the sangguniang bayan. In reply,[19] complainants maintained there was no more complaint pending in thesangguniang bayan since the latter had granted their motion to withdraw the complaint. In a rejoinder,[20] Rodriguez averred that the sangguniang bayan resolution dismissing the case filed against him was not valid because only the vice-mayor signed it. The Ruling of the Ombudsman In its 21 September 2004 Decision,[21] the Ombudsman found Rodriguez guilty of dishonesty and oppression. It imposed on Rodriguez the penalty of dismissal from the service with forfeiture of all benefits, disqualification to hold public office, and forfeiture of civil service eligibilities. Rodriguez filed a motion for reconsideration.[22] In its 12 January 2005 Order,[23] the Ombudsman denied the motion for reconsideration. In its 8 March 2005 Order,[24] the Ombudsman directed the mayor of Binalbagan, Negros Occidental to implement the penalty of dismissal against Rodriguez. Rodriguez filed in the Court of Appeals a petition for review with prayer for the issuance of a temporary restraining order.
The Ruling of the Court of Appeals In its 8 May 2006 Decision,[25] the Court of Appeals set aside for lack of jurisdiction the Decision of the Ombudsman and directed the sangguniang bayan to proceed with the hearing on the administrative case. The appellate court reasoned that the sangguniang bayan had acquired primary jurisdiction over the person of Rodriguez to the exclusion of the Ombudsman. The Court of Appeals relied on Section 4, Rule 46 of the Rules of Court, to wit:
Sec. 4. Jurisdiction over person of respondent, how acquired. The court shall acquire jurisdiction over the person of the respondent by the service on him of its order or resolution indicating its initial action on the petition or by his voluntary submission to such jurisdiction
The appellate court noted that the sangguniang bayan served on Rodriguez a notice, requiring the latter to file an answer, on 8 September 2003 while the Ombudsman did so two days later or on 10 September 2003. Petitioner Ombudsman contends that upon the filing of a complaint before a body vested with jurisdiction, that body has taken cognizance of the complaint. Petitioner cites Blacks Law Dictionary in defining what to take cognizance means to wit, to acknowledge or exercise jurisdiction. Petitioner points out it had taken cognizance of the complaint against Rodriguez before a similar complaint was filed in the sangguniang bayan against the same respondent. Petitioner maintains summons or notices do not operate to vest in the disciplining body jurisdiction over the person of the respondent in an administrative case. Petitioner concludes that consistent with the rule on concurrent jurisdiction, the Ombudsmans exercise of jurisdiction should be to the exclusion of the sangguniang bayan.
Private respondent Rolson Rodriguez counters that when a competent body has acquired jurisdiction over a complaint and the person of the respondent, other bodies are excluded from exercising jurisdiction over the same complaint. He cites Article 124 of the Implementing Rules and Regulations of Republic Act No. 7160,[26] which provides that an elective official may be removed from office by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other. Private respondent insists the sangguniang bayan first acquired jurisdiction over the complaint and his person. He argues jurisdiction over the person of a respondent in an administrative complaint is acquired by the service of summons or other compulsory processes. Private respondent stresses complainants violated the rule against forum shopping when they filed identical complaints in two disciplining authorities exercising concurrent jurisdiction.
The IssuesThe issues submitted for resolution are (1) whether complainants violated the rule against forum shopping when they filed in the Ombudsman and the sangguniang bayanidentical complaints against Rodriguez; and (2) whether it was the sangguniang bayan or the Ombudsman that first acquired jurisdiction.
The Courts RulingThe petition has merit.Paragraph 1, Section 13 of Article XI of the Constitution provides:
Sec. 13. The Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on
complaint by any person, any act or omission of any public official, employee, office, or agency, when
such act or omission appears to be illegal, unjust, improper, or inefficient.
Section 15 of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989, states:
Sec. 15. Powers, Functions, and Duties. The Ombudsman shall have the following powers, functions, and duties: (1) Investigate and prosecute on its own
or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigations of such cases.
The primary jurisdiction of the Ombudsman to investigate any act or omission of a public officer or employee applies only in cases cognizable by the Sandiganbayan. In cases cognizable by regular courts, the Ombudsman has concurrent jurisdiction with other investigative agencies of government.[27] Republic Act No. 8249, otherwise known as An Act Further Defining the Jurisdiction of the Sandiganbayan, limits the cases that are cognizable by the Sandiganbayan to public officials occupying positions corresponding to salary grade 27 and higher. The Sandiganbayanhas no jurisdiction over private respondent who, as punong barangay, is occupying a position corresponding to salary grade 14 under Republic Act No. 6758, otherwise known as the Compensation and Position Classification Act of 1989.[28]
Under Republic Act No. 7160, otherwise known as the Local Government Code, the sangguniang panlungsod or sangguniang bayan has disciplinary authority over any elective barangay official, to wit:
SEC. 61. Form and Filing of Administrative Complaints. A verified complaint against any erring elective official shall be prepared as follows: x x x x (c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang
bayan concerned whose decision shall be final and executory.
Clearly, the Ombudsman has concurrent jurisdiction with the sangguniang bayan over administrative cases against elective barangay officials occupying positions below salary grade 27, such as private respondent in this case. The facts in the present case are analogous to those in Laxina, Sr. v. Ombudsman,[29] which likewise involved identical administrative complaints filed in both the Ombudsman and the sangguniang panlungsod against a punong barangay for grave misconduct. The Court held therein that the rule against forum shopping applied only to judicial cases or proceedings, not to administrative cases.[30] Thus, even if complainants filed in the Ombudsman and the sangguniang bayan identical complaints against private respondent, they did not violate the rule against forum shopping because their complaint was in the nature of an administrative case. In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities, the body in which the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction.[31] In this case, since the complaint was filed first in the Ombudsman, and the Ombudsman opted to assume jurisdiction over the complaint, the Ombudsmans exercise of jurisdiction is to the exclusion of the sangguniang bayanexercising concurrent jurisdiction. It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction, once acquired, is not lost upon the instance of the parties but continues until the case is terminated.[32] When herein complainants first filed the complaint in the Ombudsman, jurisdiction was already vested on the latter. Jurisdiction could no longer be transferred to the sangguniang bayan by virtue of a subsequent complaint filed by the same complainants. As a final note, under Section 60 of the Local Government Code, the sangguniang bayan has no power to remove an elective barangay official. Apart from the Ombudsman, only a proper court may do so.[33] Unlike the sangguniang bayan, the powers of the Ombudsman are not merely recommendatory. The Ombudsman is clothed with authority to directly remove[34] an erring public official other than members of Congress and the Judiciary who may be removed only by impeachment.[35]
WHEREFORE, we GRANT the petition. We SET ASIDE the 8 May 2006 Decision of the Court of Appeals in CA-G.R. SP No. 00528. We AFFIRM the 21 September 2004 Decision of the Ombudsman (Visayas) in OMB-V-A-03-0511-H.
No pronouncement as to costs. SO ORDERED.
[G.R. No. 125498. February 18, 1999]CONRADO B. RODRIGO, JR., ALEJANDRO A. FACUNDO and
REYNALDO G. MEJICA, petitioners, vs. THE HONORABLE SANDIGANBAYAN (First Division),
OMBUDSMAN and PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N
KAPUNAN, J.:
Petitioners Conrado B. Rodrigo and Reynaldo G. Mejica are the Mayor and Municipal Planning and Development Coordinator, respectively, of San Nicolas, Pangasinan, while petitioner Alejandro A. Facundo is the former Municipal Treasurer of the same municipality.
On 15 June 1992, the Municipality of San Nicolas, represented by Mayor Rodrigo, entered into an agreement with Philwood Construction, represented by Larry Lu, for the electrification of Barangay Caboloan, San Nicolas, for the sum of P486,386.18, requiring:
1. Installation of the two (2) units diesel power generator (20) KVA, 220 W, Battery start and other accessories);
2. Installation of 24 rolls feeder lines with nos. 6, 8 and ten wires;
3. Installation of 40 units 4 x 4 wooden post with accessories; and
4. Construction of powerhouse with concrete foundation double throw safety switches (double pole, 250 amperes capacity of 220 V with fuse).[1]
On 2 September 1992, Mejica, the Planning and Development Coordinator of San Nicolas, prepared an Accomplishment Report stating that the Caboloan Power Generation project was 97.5% accomplished. Said report was supposedly approved by mayor Rodrigo and confirmed by Larry Lu. On the basis of said report, payment of P452,825.53 was effected by the Municipal Treasurer, petitioner Facundo, to Philwood Construction.
On 14 August 1993, petitioners received a Notice of Disallowance dated 21 June 1993 from the Provincial Auditor of Pangasinan, Atty. Agustin Chan, Jr., who found that as per COA (Commission on Audit) evaluation of the electrification project, only 60.0171% of the project (equivalent to P291,915.07) was actually accomplished. Of the two units of generator supposedly purchased, only one second-hand unit was delivered. The same generator broke down after only two nights of operation. In addition, instead of 40 wooden posts, only 27 were installed. The powerhouse was only 65.635% completed.The Provincial Auditor thus disallowed the amount of P160,910.46.
The graph below serves to illustrate the conflicts between Mejicas report and the COAs:
Percentage
AccomplishedAmount paid
By Municipality
P452,825.5393.0090% (accdg. to Mejicas report)
Cost of Actual
Accomplishment
P 291,915.07 60.0171% (accdg. to COA report)
Amount
Disallowed
P 160,910.46 33.08% (difference)
In September 1993, petitioners requested the Provincial Auditor to lift the notice of disallowance[2] and to re-inspect the project.[3] Petitioners reiterated their plea in a letter to the Provincial Auditor dated 3 November 1993,[4] attaching therewith a Certificate of Acceptance and Completion[5] signed by Clemente Arquero, Jr., Barangay Captain of Caboloan, and Eusebio Doton, President of the Cabaloan Electric Cooperative. The Provincial Auditor, however, allegedly did not act on petitioners requests.
On 10 January 1994, the Provincial Auditor filed a criminal complaint for estafa before the Ombudsman against petitioners. Likewise impleaded were Larry Lu and Ramil Ang, President and General Manager, and Project Engineer, respectively, of Philwood Construction.
On 10 June 1995, Acting Ombudsman Francisco Villa approved the filing of an information against petitioners for violation of Section 3 (e) of Republic Act No. 3019[6] before the Sandiganbayan.
On 28 July 1995, petitioners filed a motion for reinvestigation before the Sandiganbayan. The Sandiganbayan granted said motion in an Order dated 22 April 1996.
On 7 November 1995, the Office of the Special Prosecutor issued a memorandum recommending that the charges against petitioners be maintained. The Ombudsman approved said memorandum.
Petitioners thereafter filed before the Sandiganbayan a motion to quash the information alleging, as grounds therefor that (1) the facts alleged in the information did not constitute an offense, and (2) the same information charged more than one offense. Petitioners, however, did not elaborate on these grounds. They instead faulted the Provincial Auditor for instituting the complaint against them notwithstanding the pendency of their opposition to the notice of disallowance. They also argued that the evidence against them did not establish the element of damage nor the presence of any conspiracy between them.
The Sandiganbayan denied said motion in an Order dated 18 March 1996.
On 18 March 1996, the prosecution moved to suspend petitioners pendente lite. Petitioners opposed the motion on the ground that the Sandiganbayan lacked jurisdiction over them. In a Resolution dated 2 July 1996, the Sandiganbayan ruled that it had jurisdiction over petitioners and ordered the suspension of petitioners pendente lite.
Petitioners thus filed before this Court the instant petition for certiorari under Rule 65, praying that the Court annul: (a) the order of the Sandiganbayan denying petitioners motion to quash, and (b) the resolution of the same court upholding its jurisdiction over petitioners. Petitioners likewise prayed that this Court issue a temporary restraining order to enjoin the Sandiganbayan from proceeding with the case.
On 28 August 1998, the court resolved to issue the temporary restraining order prayed for.
Petitioners allege the following grounds in support of their petition:
I
THE SANDIGANBAYAN ERRED IN ALLOWING THE LITIGATION OF THE CRIMINAL INFORMATION FOR CONSPIRACY IN VIOLATING SECTION 3(E) OF THE ANTI- GRAFT ACT (R.A.3019) WHEN THE NOTICE OF DISALLOWANCE STILL PENDS WITH THE PROVINCIAL AUDITOR UNDER PETITIONER PROTEST SUPPORTED BY CERTIFICATE OF COMPLETION AND ACCEPTANCE OF THE REQUIRED ELEMENT OF 'CAUSING UNDUE INJURY TO ANY PARTY, INCLUDING THE GOVERNMENT AND GROSS NEGLIGENCE.
II
THE SANDIGANBAYAN HAS NO JURISDICTION TO PROCEED AGAINST ALL THE PETITIONERS AND ALL THE PROCEEDINGS THEREIN, PARTICULARLY THE ORDER OF SUSPENSION FROM OFFICE PENDENTE LITE, ARE NULL AND VOID AB INITIO.
III
THE ONGOING PROCEEDINGS BEFORE THE SANDIGANBAYAN IS A CLEAR VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE PETITIONERS UNDER THE DUE PROCESS CLAUSEAS IT WAS PRECEDED BY HASTY, MALICIOUS, SHAM AND HASTY PRELIMINARY INVESTIGATION INEVITABLY EXPOSING THEM TO A PROLONGED ANXIETY, AGGRAVATION, EXPENSES, AND HUMILIATION OF A PUBLIC TRIAL.
IV
THE PRECIPITATE SANDIGANBAYAN ORDER OF SUSPENSION IS A LEGAL ERROR AS THE SAME EVIDENTLY THE LACK OF THE REQUIRED COLD NEUTRALITY OF AN IMPARTIAL TRIBUNAL VIOLATING PETITIONERS CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS CLAUSE AND BILL OF RIGHTS.[7]
The first ground raises two issues: (1) whether petitioners right to due process was violated by the filing of the complaint against them by the Provincial Auditor, and (2) whether the Ombudsman committed grave abuse of discretion in filing the information against petitioners. The second questions the jurisdiction of the Sandiganbayan over petitioners. The third and fourth grounds are related to the first and are subsumed thereunder.
After a meticulous scrutiny of petitioners arguments, we find the petition devoid of merit.
I
Petitioners contend that the institution by the Provincial Auditor of the complaint despite the pendency of their opposition to the notice of disallowance violates their right to due process. They submit that the issuance of a notice of disallowance against (them) compels the provincial auditor to either accept a settlement or adjudicate and decide on the written explanation for the purpose of lifting/settling the suspension or extending the time to answer beyond the ninety (90) day period prior to its conversion into a disallowance.[8]
The italicized portion above is an excerpt from Section 44.6.4 of the State Audit Manual, which states in full:
Sec. 44.6.4. Auditors Responsibility re Evaluation of Disallowance. It shall be the responsibility of the auditor to exercise professional judgment in evaluating, on the basis of the facts and circumstances of each case as well as the pertinent provisions of applicable laws, rules and regulations, the grounds for a charge or suspension/disallowance of an account or transaction.
It shall be the responsibility of the auditor to exercise sound judgment in evaluating the written explanation of the accountable/responsible/liable officer concerned for the purpose of lifting the suspension or extending the time to answer beyond the ninety (90) day period prior to its conversion into a disallowance. (Underscoring supplied.)
The aforequoted provision should be read in conjunction with Section 82 of the State Audit Code,[9] which states that:
(a) charge of suspension which is not satisfactorily explained within ninety days after receipt or notice by the accountable officer concerned shall become a disallowance, unless the Commission or auditor concerned
shall, in writing and for good cause shown, extend the time for answer beyond ninety days.
At this point, it may be useful to distinguish between a disallowance and a suspension. A disallowance is the disapproval of a credit or credits to an account/accountable officers accountability due to non-compliance with law or regulations.[10] Thus, the auditor may disallow an expenditure/transaction which is unlawful or improper.[11]
A suspension, on the other hand, is the deferment of action to debit/credit the account/accountable officers accountability pending compliance with certain requirements.[12] A notice of suspension is issued on transactions or accounts which could otherwise have been settled except for some requirements, like lack of supporting documents or certain signatures. It is also issued on transactions or accounts the legality/propriety of which the auditor doubts but which he may later allow after satisfactory or valid justification is submitted by the parties concerned.[13]
As stated in Section 82, supra, however, the suspension shall become a disallowance if the charge of suspension is not satisfactorily explained within ninety days after receipt or notice by the accountable officer concerned." The ninety-day period within which the accountable officer may answer the charge of suspension may nevertheless be extended by the Commission or the auditor for good cause shown.
Clearly, petitioners misinterpreted Section 44.6.4. First, petitioners were not charged with suspension but disallowance. Second, the written explanation referred to in said section is for the purpose of lifting the suspension or extending the time to answer beyond the ninety (90) day period prior to its conversion into a disallowance, not for contesting a disallowance, as petitioners wrongfully assert. Section 44.6.4., therefore, finds no application in this case.
On the other hand, respondents correctly invoke Sections 55 and 56 of Commission on Audit Circular No. 85-156-B, which respectively provide:
SECTION 55. REPORTING FRAUD/UNLAWFUL ACTIVITIES
If after evaluation of the findings, the auditor is convinced that the evidence sufficiently discloses the fraud and other unlawful activities and identifies the perpetrators thereof, he shall prepare the sworn statements of the examining witnesses and/or other witnesses and make a report to the Manager/Regional Director concerned, attaching thereto copies of the pertinent affidavits and other supporting documents.
SECTION 56. INSTITUTION OF CRIMINAL ACTION
If criminal prosecution is warranted, the Regional Director/Manager concerned with respect to National Government Agencies/government Owned or Controlled Corporations or Provincial/City Auditors with respect to local government units shall prepare a letter-complaint and file the same with the Tanodbayan or the local deputized Tanodbayan prosecutor within ten (10) days from receipt of the report from the examining auditor, attaching thereto copies of the sworn statements or affidavits of witnesses and other pertinent documents.
Section 56 imposes upon the Provincial Auditor the duty to file a complaint before the Tanodbayan (now the Ombudsman) when, from the evidence obtained during the audit, he is convinced that criminal prosecution is warranted. The Provincial Auditor need not resolve the opposition to the notice of disallowance and the motion for re-inspection pending in his office before he institutes such complaint so long as there are sufficient grounds to support the same. The right to due process of the respondents to the complaint, insofar as the criminal aspect of the case is concerned, is not impaired by such institution. The respondents will still have the opportunity to confront the accusations contained in the complaint during the preliminary investigation. They may still raise the same defenses contained in their motion to lift the disallowance, as well as other defenses, in the preliminary investigation. Should the Provincial Auditor later reverse himself and grant respondents motions, or should the COA, or this Court, subsequently absolve them from liability during the pendency of the preliminary investigation, the respondents may ask the prosecuting officer to take cognizance of such decision. The prosecuting officer may then accord such decision its proper weight.
It bears stressing that the exoneration of respondents in the audit investigation does not mean the automatic dismissal of the complaint against them. The preliminary investigation, after all, is independent from the investigation conducted by the COA, their purposes distinct from each other. The first involves the determination of the fact of the commission of a crime; the second relates to the administrative aspect of the expenditure of public funds.[14]
Accordingly, we hold that the Ombudsman did not err in entertaining the complaint filed by the Provincial Auditor against petitioners, nor the Sandiganbayan in allowing trial to proceed, despite the pendency of petitioners motions before the auditor.
II
Petitioners argue that their opposition to the disallowance, supported as it is by a certificate of acceptance and completion, would betray the absence of the elements of evident bad faith or negligence, and damage. They likewise claim that the evidence does not establish conspiracy among them.
The presence or absence of the elements of the crime, however, is evidentiary in nature and is a matter of defense, the truth of which can be best passed upon after a full-blown trial on the merits.[15] The same applies to the alleged absence of any conspiracy between the accused.
This Court, moreover, has maintained a consistent policy of non-interference in the determination of the Ombudsman regarding the existence of probable cause, provided there is no grave abuse in the exercise of such discretion.[16] In a recent decision,[17] this Court, quoting Young vs. Office of the Ombudsman,[18] stated the rationale for this rule:
... The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the court will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.
Petitioners have failed to establish any such abuse on the part of the Ombudsman.
III
Petitioners next question the jurisdiction of the Sandiganbayan. They contend that Mayor Rodrigo occupies a position of Grade 24 and is, therefore, beyond the original and exclusive jurisdiction of theSandiganbayan.
Before the passage of Republic Act No. 7975[19] on 30 March 1995, the pertinent portions of section 4 of Presidential Decree No. 1606,[20] as amended by Presidential Decree No. 1861,[21] read as follows:
SEC. 4. Jurisdiction. The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00; PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.
xxx.
Section 2 of R.A. No. 7975 subsequently redefined the jurisdiction of the Anti-Graft Court such that the pertinent portions of Section 4 of P.D. No. 1606 now reads:
Sec. 4. Jurisdiction. -- the Sandiganbayan shall exercise original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads.
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;
(2) Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.
In cases where none of the principal accused are occupying positions corresponding to salary grade 27 or higher, as prescribed in the said Republic Act No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129.
x x x
Then Associate, now Chief Justice, Hilario Davide explained the effects of these amendments in People vs. Magallanes:[22]
As a consequence of these amendments, the Sandiganbayan partly lost its exclusive original jurisdiction in cases involving violations of R.A. No. 3019, as amended,[23] as amended; R.A. No. 1379,[24]and Chapter II, Section 2, Title VII of the Revised Penal Code,[25] it retains only cases where the accused are those enumerated in subsection a, Section 4 above and, generally, national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989 (R.A. No. 6758). Moreover, its jurisdiction over other offenses or felonies committed by public officials and employees in relation to their office is no longer determined by the prescribed penalty, viz., that which is higher than prision
correccional or imprisonment for six years or a fine of P6,000.00; it is enough that they are committed by those public officials and employees enumerated in subsection a, Section 4 above. However, it retains its exclusive original jurisdiction over civil and criminal cases filed pursuant to or in connection with E.O. Nos. 1,[26] 2,[27] 14,[28] and 14-A.[29]
The apparent intendment of these amendments is to ease the dockets of the Sandiganbayan and to allow the Anti-Graft Court to focus its efforts on the trial of those occupying higher positions in government, the proverbial big fish. Section 4, as amended, freed the Sandiganbayan from the task of trying cases involving lower-ranking government officials, imposing such duty upon the regular courts instead. The present structure is also intended to benefit these officials of lower rank, especially those residing outside Metro Manila, charged with crimes related to their office, who can ill-afford the expenses of a trial in Metro Manila. As the Explanatory Note of House Bill No. 9825[30] states:
One is given the impression that only lowly government workers or the so-called small fry are expediently tried and convicted by the Sandiganbayan. The reason for this is that at present, the Sandiganbayanhas the exclusive and original jurisdiction over graft cases committed by all officials and employees of the government, irrespective of rank and position, from the lowest-paid janitor to the highly-placed government official. This jurisdiction of the Sandiganbayan must be modified in such a way that only those occupying high positions in the government and the military (the big fishes) may fall under its exclusive and original jurisdiction. In this was, the Sandiganbayan can devote its time to big time cases involving the big fishes in the government. The regular courts will be vested with the jurisdiction of cases involving less-ranking officials (those occupying positions corresponding to salary grade twenty-seven (27) and below and PNP members with a rank lower than Senior Superintendent. This set-up will prove more convenient to people in the provinces. They will no longer have to travel to Manila to file their complaint or to defend themselves. They can already file their complaint or their defense before the Regional Trial Court or the Municipal Trial Court in their respective localities, as the case may be.
To distinguish the big fish from the small fry, Congress deemed the 27th Grade as the demarcation between those who should come under the jurisdiction of the Sandiganbayan and those within the regular courts. (While H.B. No. 9825 originally intended only officials of Grade 28 and above as within the exclusive and original jurisdiction of the Sandiganbayan, the resulting law included officials of Grade 27.) Thus, officials occupying positions of Grade 27 and above, charged with crimes referred to in Section 4 a. and b., are within the original and exclusive jurisdiction of the Sandiganbayan; those below come under the jurisdiction of the regular courts.
Although some positions of Grade 27 and above are stated by name in Section 4 a., the position of Municipal Mayor is not among them. Nevertheless, Congress provided a catchall in Section 4 a. (5), thus:
(5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989.
Such a catchall is necessary, for it would be impractical, if not impossible, for Congress to list down each position created or will be created pertaining to Grades 27 and above.
At present, Volume III of the 1997 edition of the Index of Occupational Services, Position Titles and Salary Grades, which was prepared by the Department of Budget and Management (DBM) pursuant to Republic Act No. 6758,[31] otherwise known as the Compensation and Position Classification Act of 1989, lists the following positions under Salary Grade 27, including the position of Municipal Mayor I:
Assistant Commissioner of Internal RevenueAssistant Regional Cabinet SecretaryAssistant Regional Executive SecretaryBoard Member IChairman, Police Regional Appellate BoardChief of Mission, Class IICity Government Department Head IIICity Trial Court JudgeClerk of the CommissionCommission Member ICourt Attorney VICourt of Appeals Reporter IIDeputy Administrator IDeputy Commissioner IDeputy Executive Director IIIDeputy Insurance CommissionerDirector IIIExecutive Clerk of Court IIExecutive Director IIGovernment Corporate Attorney IIIGraft Investigation Officer IIMunicipal Mayor IProfessor IVProject Manager IIIProsecutor IIProvincial Agrarian Reform AdjudicatorPublic Attorney IVRegional TreasurerRegister of Deeds IVSangguniang Panlalawigan MemberSangguniang Panlungsod Member IIScientist IISolicitor IISpecial Prosecution Officer II
State Counsel IVSUC President ISUC Vice-President III
Earlier, in the 1989 version of the same Index, the Municipal Mayor was also assigned a Salary Grade of 27. It appears, therefore, that petitioner Mayor comes within the exclusive and original jurisdiction of the Sandiganbayan.
Petitioners, however, claim that at the time of the commission of the alleged crime on or about 2 September 1992, Mayor Rodrigo, the highest public ranking public official impleaded in this case, was receiving a monthly salary of P10,441.00. Such amount 6758 is supposedly equivalent to a fourth step increment in Grade 24 under the Salary Schedule prescribed in Section 7 of R.A. No. 6758: *
SEC. 7. Salary Schedule. The Department of Budget and Management is hereby directed to implement the Salary Schedule prescribed below:
Salary ScheduleGrade 1st 2nd 3rd 4th 5th 6th 7th 8th
Xxx
24 10,13510,23610,33910,44210,64610,65210,76810,866Xxx
Petitioners conclude that Mayor Rodrigo, at the time of the commission of the alleged crime, was occupying a Grade 24 position and, thus, not within the Sandiganbayans original and exclusive jurisdiction, as defined in Section 2 of R.A. No. 7975.
This is a simplistic, and altogether incorrect, interpretation of the law.
Section 5, Article IX-C of the Constitution provides that:
The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporation with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions.
This provision is not unique to the 1987 Constitution. The 1973 Constitution, in Section 6, Article XII thereof, contains a very similar provision pursuant to which then President Marcos, in the exercise of his legislative powers, issued Presidential Decree No. 985.[32]
However, with the advent of the new Constitution, and in compliance therewith, Congress enacted R.A. No. 6758. Section 2 thereof declares it the policy of the State to provide equal pay for substantially equal work and to base differences in pay upon substantive differences in duties and responsibilities, and qualification requirements of the positions."
To give life to this policy, as well as the constitutional prescription to (take) into account the nature of the responsibilities pertaining to, and the qualifications required for the positions of government officials and employees, Congress adopted the scheme employed in P.D. No. 985 for classifying positions with comparable responsibilities and qualifications for the purpose of according such positions similar salaries. This scheme is known as the Grade, defined in P.D. No. 985 as:
Includ[ing] all classes of positions which, although different with respect to kind or subject matter of work, are sufficiently equivalent as to level of difficulty and responsibilities and level of qualification requirements of the work to warrant the inclusion of such classes of positions within one range of basic compensation.[33]
The Grade is therefore a means of grouping positions sufficiently equivalent as to level of difficulty and responsibilities and level of qualification requirements of the work so that they may be lumped together in one range of basic compensation.
Thus, Congress, under Section 8 of R.A. No. 6758, fixed the Salary Grades[34] of officials holding constitutional positions, as follows:
SEC. 8. Salaries of Constitutional Officials and their Equivalent. Pursuant to Section 17, Article XVIII of the Constitution, the salary of the following officials shall be in accordance with the Salary Grades indicated hereunder:
SalaryGrade
President of the Philippines
33
Vice-President of the Philippines
32
President of the Senate
32
Speaker of the House of Representatives
32
Chief Justice of the Supreme Court
32
Senator 31Member of the 31
House of RepresentativesAssociate Justices of the Supreme Court
31
Chairman of a Constitutional Commissionunder Article IX, 1987 Constitution
31
Member of a Constitutional Commission under Article IX, 1987 Constitution
30
The Department of Budget and Management is hereby authorized to determine the officials who are of equivalent rank to the foregoing Officials, where applicable, and may be assigned the same Salary Grades based on the following guidelines:
x x x
As indicated in the aforequoted section, Congress delegated the rest of this tedious task (of fixing Salary Grades) to the DBM, subject to the standards contained in R.A. No. 6758, by authorizing the DBM to determine the officials who are of equivalent rank to the foregoing officials, where applicable, and to assign them the same Salary Grades subject to a set of guidelines found in said section.[35]
For positions below those mentioned under Section 8, Section 9 directs the DBM to prepare the Index of Occupational Services guided by (a) the Benchmark Position prescribed in Section 9,[36] and (b) the following factors:
(1) the education and experience required to perform the duties and responsibilities of the position;
(2) nature and complexity of the work to be performed;
(3) the kind of supervision received;
(4) mental and/or physical strain required in the completion of the work;
(5) nature and extent of internal and external relationships;
(6) kind of supervision exercised;
(7) decision-making responsibility;
(8) responsibility for accuracy of records and reports;
(9) accountability for funds, properties and equipment; and
(10) hardship, hazard and personal risk involved in the job.
Pursuant to such authority, the DBM drafted the 1989 Index of Occupational Services, Position Titles and Salary Grades, later revised in 1997. In both versions, the position of Municipal Mayor was assigned a Salary Grade 27.
That petitioner received a salary less than that prescribed for such Grade is explained by Sections 10 and 19 (b) of R.A. No. 6758, which respectively provide:
SEC. 10. Local Government Units (LGUs). -- The rates of pay in LGUs shall be determined on the basis of the class and financial capability of each LGU: Provided, That such rates of pay shall not exceed the following percentages of the rates in the salary schedule prescribed under Section 7 hereof:
ForProvinces/Cities
ForMunicipalities
Special Cities
100%
1stClass 100% 90%2ndClass 95% 85%3rdClass 90% 80%4thClass 85% 75%5thClass 80% 70%6thClass 75% 65%
SEC. 19. Funding Source. The funding sources for the amounts necessary to implement this Act shall be as follows:
(a) x x x
(b) For local government units, the amount shall be charged against their respective funds. Local government units which do not have adequate or sufficient funds shall only partially implement the established rates as may be approved by the Joint Commission under Section 8 of Presidential Decree No. 1188: Provided, That any partial implementation shall be uniform and proportionate for all positions in each local government unit: Provided further, That savings from National Assistance to Local Government Units (NALGU) funds may be used for this purpose.
x x x. (Underscoring supplied.)
Thus, a local government officials actual salary may be less than what the Salary Schedule under Section 7 prescribes, depending on the class and financial capability of his or her respective local government unit. This circumstance, however, has
no bearing on such officials Grade. As the foregoing discussion shows, on officials salary is determined by the Grade accorded his position, andultimately by the nature of his position the level of difficulty and responsibilities and level of qualification requirements of the work. To give credence to petitioners argument that Mayor Rodrigos salary determines his Grade would be to misconstrue the provisions of R.A. No. 6758, and ignore the constitutional and statutory policies behind said law.
Petitioner mayors position having been classified as Grade 27 in accordance with R.A. No. 6758, and having been charged with violation of Section 3 (e) of R.A. No. 3019, petitioner is subject to the jurisdiction of the Sandiganbayan, as defined by Section 4 a. of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975. By virtue of the same Section 4 a., as amended, his co-accused are also subject to the Anti-Graft Courts jurisdiction.
WHEREFORE, the petition is hereby DISMISSED and the Temporary Restraining Order issued by this Court on 28 August 1996 LIFTED.
SO ORDERED.
[G.R. Nos. 122297-98. January 19, 2000]
CRESCENTE Y. LLORENTE, JR., petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N
PARDO, J.:
The case before the Court is a special civil action for certiorari[1] assailing the jurisdiction of the Sandiganbayan over
the criminal cases against then municipal mayor Crescente Y. Llorente, Jr. for violations of Republic Act No. 3019, as amended.
Petitioner Crescente Y. Llorente, Jr. was elected municipal mayor of Sindangan, Zamboanga in 1988 and 1992. On May 8, 1995, he was a candidate for congressman, second district of Zamboanga del Norte, and was duly elected.
On August 6, 1993, the Office of the Special Prosecutor[2] filed with the Sandiganbayan an information[3] against Crescente Y. Llorente, Jr., municipal mayor of Sindangan, Zamboanga del Norte, P/Sgt. Juanito Caboverde and Jose Dy for violation of Section 3 (e), Republic Act No. 3019, as amended, committed as follows:
"That on or about June 12, 1989, in the Municipality of Sindangan, Zamboanga del Norte, and within the jurisdiction of this Honorable Court, accused Crescente Y. Llorente, Jr., Municipal Mayor of Sindangan, Zamboanga del Norte and P/Sgt. Juanito Cadoverde of the defunct Integrated National Police and as such public officers and the other accused Jose Dy, a private individual, conspiring with each other and acting with evident bad faith, did then and there, willfully, unlawfully and criminally seized (sic) 930 sawn knockdown wooden boxes owned by Godofredo M. Diamante without any search and seizure warrant and without issuing any receipt of seizure thereby causing undue damage and injury to said Godofredo M. Diamante and this offense was committed in relation to the office of the said public officers.
"CONTRARY TO LAW.
"Manila, August 6, 1993.
s/t) GUALBERTO J. DE LA LLANASpecial Prosecution Officer III
On February 2, 1994, the three accused were arraigned before the Sandiganbayan and pleaded not guilty. Nex old
On March 31, 1995, the Office of the Ombudsman[5] filed with the Sandiganbayan another information[6] against petitioner for violation of Section 3 (f), Republic Act No. 3019, as amended, committed as follows:
"That on or about July 5, 1993, and for sometime subsequent thereto, in Sindangan, Zamboanga del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the
Municipal Mayor of Sindangan, Zamboanga del Norte, with grave abuse of authority, did then and there wilfully, unlawfully and criminally refuse to issue Mayors permit to the ice plant and resawmill/box factory of R. F. Diamante and family, without sufficient justification, after due demand and payment of license fees were made, said refusal to grant Mayors permit being not only personal but for the purpose of giving undue advantage to similar businesses in town and as an act of discriminating against the interest of the complainant to the latters damage and prejudice.
"CONTRARY TO LAW.
"Manila, Philippines, March 31, 1995
"(s/t) DANIEL B. JOVACON, JR.Special Prosecution Officer I
The trial of both criminal cases before the Sandiganbayan has not begun.
On May 16, 1995, Congress enacted Republic Act No. 7975,[8] amending Section 4 of Presidential Decree No. 1606,[9] providing: Mani kx
"SEC. 4. Jurisdiction The Sandiganbayan shall exercise original jurisdiction in cases involving:
"a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:
"(1) Officials of the executive branch occupying the positions of regional director or higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
"(a) Provincial governors, vice governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads;
"(b) City mayors, vice mayors, members of the sangguniang panglungsod, city treasurers, assessors, engineers, and other city department heads;
"(c) Officials of the diplomatic service occupying the position of consul and higher; Maniks
"(d) Philippine army and air force colonels, naval captains, and all other officials of higher rank;
"(e) PNP chief superintendent and PNP officers of higher rank;
"(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;
"(g) Presidents, directors, or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions of foundations.
"(2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;
"(3) Members of the judiciary without prejudice to the provisions of the Constitution;
"(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and
"(5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989.
"b. Other offenses or felonies committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office.
"c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.
"In cases where none of the principal accused are occupying positions corresponding to salary grade "27" or higher, as prescribed in the said Republic Act
No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129."[10] Manikan
On July 10, 1995, petitioner filed with the Sandiganbayan, Third Division, a motion to dismiss or transfer Criminal Case No. 19763 to the Regional Trial Court, Sindangan, Zamboanga.
On the same date, petitioner filed with the Sandiganbayan, First Division, a motion to refer Criminal Case No. 22655 to the Regional Trial Court, Sindangan, Zamboanga.
Petitioner averred that the enactment of Republic Act No. 7975 divested the Sandiganbayan of its jurisdiction over criminal cases against municipal mayors for violations of Republic Act No. 3019, as amended, who receive salary less than that corresponding to Grade 27, pursuant to the Index of Occupational Services prepared by the Department of Budget and Management (DBM).
On September 7, 1995, the Sandiganbayan, First Division[11] denied the motion to refer Criminal Case No. 22655 to the Regional Trial Court. On October 10, 1995, the Sandiganbayan denied petitioners motion for reconsideration.[12]
On September 14, 1995, Sandiganbayan, Third Division[13] also denied the motion to transfer Criminal Case No. 19763 to the Regional Trial Court.
Hence, petitioner filed these petitions for certiorari.[14]
On December 27, 1995, the Court consolidated the two cases.[15]
On February 23, 1997, Congress enacted Republic Act No. 8249, an act redefining the jurisdiction of Sandiganbayan.[16]
On September 1, 1999, we gave due course to the petitions.[17] Ncm
The issue raised in these two cases is whether or not Republic Act No. 7975 divested the Sandiganbayan of its jurisdiction over violations of Republic Act No. 3019, as amended, against municipal mayors.
We have resolved this issue in recent cases ruling that the Sandiganbayan has jurisdiction over violations of Republic Act No. 3019, as amended, against municipal mayors.[18]
There is no merit to petitioners averment that the salary received by a public official dictates his salary grade. "On the contrary, it is the officials grade that determines his or her salary, not the other way around."[19] "To determine whether the official is within the exclusive jurisdiction of the Sandiganbayan, therefore, reference should be made to Republic Act No. 6758 and the Index of Occupational Services, Position Titles and Salary Grades. An officials grade is not a matter of proof, but a matter of law which the court must take judicial notice."[20]
Section 444 (d) of the Local Government Code provides that "the municipal mayor shall receive a minimum monthly compensation corresponding to Salary Grade twenty-seven (27) as prescribed under Republic Act No. 6758 and the implementing guidelines issued pursuant thereto." Additionally, both the 1989 and 1997 versions of the Index of Occupational Services, Position Titles and Salary Grades list the municipal mayor under Salary Grade 27.[21] Consequently, the cases against petitioner as municipal mayor for violations of Republic Act No. 3019, as amended, are within the exclusive jurisdiction of the Sandiganbayan.
WHEREFORE, we hereby DISMISS the consolidated petitions at bar, for lack of merit.
No costs.
SO ORDERED.
G.R. No. 123169 November 4, 1996DANILO E. PARAS, petitioner, vs.COMMISSION ON ELECTIONS, respondent.R E S O L U T I O N
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. Acting on the petition for recall, public respondent Commission on Elections
(COMELEC) resolved to approve the petition, scheduled the petition signing on October 14, 1995, and set the recall election on November 13,1995. 1 At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law. The COMELEC, however, deferred the recall election in view of petitioner's opposition. On December 6, 1995, the COMELEC set anew the recall election, this time on December 16, 1995. To prevent the holding of the recall election, petitioner filed before the Regional Trial Court of Cabanatuan City a petition for injunction, docketed as SP Civil Action No. 2254-AF, with the trial court issuing a temporary restraining order. After conducting a summary hearing, the trial court lifted the restraining order, dismissed the petition and required petitioner and his counsel to explain why they should not be cited for contempt for misrepresenting that the barangay recall election was without COMELEC approval. 2
In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election an January 13, 1996; hence, the instant petition for certiorari with urgent prayer for injunction. On January 12, 1996, the Court issued a temporary restraining order and required the Office of the Solicitor General, in behalf of public respondent, to comment on the petition. In view of the Office of the Solicitor General's manifestation maintaining an opinion adverse to that of the COMELEC, the latter through its law department filed the required comment. Petitioner thereafter filed a reply. 3
Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160, otherwise known as the Local Government Code, which states that "no recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election", petitioner insists that the scheduled January 13, 1996 recall election is now barred as the Sangguniang Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of May 1996, and every three years thereafter. In support thereof, petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA 621, where the Court considered the SK election as a regular local election. Petitioner maintains that as the SK election is a regular local election, hence no recall election can be had for barely four months separate the SK election from the recall election. We do not agree.
The subject provision of the Local Government Code provides:
Sec. 74. Limitations on Recall. — (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election.
[Emphasis added]
It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context,i.e., that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. 4 The evident intent of Section 74 is to subject an elective local official to recall election once during his term of office. Paragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject of a recall election, that is, during the second year of his term of office. Thus, subscribing to petitioner's interpretation of the phrase regular local election to include the SK election will unduly circumscribe the novel provision of the Local Government Code on recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK election which is set by R.A No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase "regular local election", as erroneously insisted by petitioner, then no recall election can be conducted rendering inutile the recall provision of the Local Government Code.
In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective law, and the legislature is not presumed to have done a vain thing in the enactment of a statute. 5 An interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative or nugatory. 6
It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution. 7 Thus, the interpretation of Section 74 of the Local Government Code, specifically paragraph (b) thereof, should not be in conflict with the Constitutional mandate of Section 3 of Article X of the Constitution to "enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative, and referendum . . . ."
Moreover, petitioner's too literal interpretation of the law leads to absurdity which we cannot countenance. Thus, in a case, the Court made the following admonition:
We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in "the letter that killeth but in the spirit that vivifieth". . . 8
The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating additional expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election. The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The electorate could choose the official's replacement in the said election who certainly has a longer tenure in office than a successor elected through a recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to construe regular local election as one referring to an election where the office held by the local elective official sought to be recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of the Code considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled on May 1997. 9
ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The temporary restraining order issued by the Court on January 12, 1996, enjoining the recall election should be as it is hereby made permanent.
SO ORDERED.
G.R. No. 126576 March 5, 1997
MAYOR RICARDO M. ANGOBUNG, petitioner, vs.COMMISSION ON ELECTIONS EN BANC, and ATTY. AURORA S. DE ALBAN, respondents.
HERMOSISIMA, JR., J.:
Before us on certiorari is a petition seeking to annul and set aside Resolution No. 96-2951 1 dated October 15, 1996 issued by public respondent Commission on Elections (COMELEC) which (1) approved the Petition for Recall filed and signed by only one registered voter — herein private respondent Ma. Aurora Siccuan de Alban, against petitioner — incumbent Mayor Ricardo Angobung; (2) set the further signing of said petition by the rest of the registered voters of Tumauini, Isabela on November 9, 1996; and (3) in case the said petition is signed by at least 25% of the total number of registered votes in Tumauini, Isabela, scheduled the recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining Order 2 enjoining public respondent COMELEC from implementing and enforcing Resolution No. 96-2951.
The facts of this case are not disputed.
Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela in the local elections of 1995. He garnered 55% of all the votes cast. Private respondent de Alban was also a candidate in said elections.
Sometime in early September, 1996, private respondent filed with the Local Election Registrar of Tumauini, Isabela, a Petition for Recall 3 against petitioner. On September 12, 1996, petitioner received a copy of this petition. Subsequently said petition was forwarded to the Regional Office in Tuguegarao, Cagayan and then to the main office of COMELEC in Manila, for approval.
Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson submitted to the COMELEC En Banc, a Memorandum 4 dated October 8, 1996 recommending approval of the petition for recall filed by private respondent and its signing by other qualified voters in order to garner at least 25% of the total number of registered voters as required by Section 69(d) of the Local Government Code of 1991.
In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson, the COMELEC en bancissued the herein assailed Resolution No. 96-2951.
Petitioner now attacks the aforementioned resolution as being unconstitutional and therefore invalid, on two main grounds: (1) that the resolution approved the Petition for Recall albeit same was signed by just one person in violation of the statutory 25% minimum requirement as to the number of signatures supporting any petition for recall; and (2) that the resolution scheduled the recall election within one (1) year from the May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent has sought the lifting of the Temporary Restraining Order issued last October 25, 1996 on the twin grounds (1) that the issue of the one-year bar on recall elections has been resolved in the case of Paras v. COMELEC 5, promulgated on November 4, 1996; and (2) that the procedure prescribed by Resolution No. 96-2951 involving petition signing upon initiation of even just one person, is no different from that provided for in COMELEC Resolution No. 2272 which was upheld as constitutional in the 1991 cases of Sanchez, et al.v. COMELEC 6 and Evardone v. COMELEC 7.
Private respondent is correct in saying that in the light of our pronouncement in Paras v. COMELEC 8, the recall election scheduled on December 2, 1996 in the instant case cannot be said to be barred by the May 12, 1997 Barangay Elections. In construing the meaning of the term, "regular local election" in Section 74 of the Local Government Code of 1991 which provides that "no recall shall take place within one (1) year . . . immediately preceding a regular local election," we ruled that for the time bar to apply, the approaching regular local election must be one where the position of the official to be recalled, is to be actually contested and filled by the electorate. Thus, in the instant case where the time bar is being invoked by petitioner mayor in view of the approaching Barangay Elections in May 1997, there can be no application of the one year bar, hence no invalidity may be ascribed to Resolution No. 96-2951 on this ground.
We, however, find petitioner's second ground to be impressed with merit.
Before the enactment of the 1991 Local Government Code, the recall of public officials voted for in popular elections, was governed by Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code of 1983. Pursuant to Section 59 thereof, which states that "the Commission on Elections shall conduct and supervise the process of and election on recall . . . and, in pursuance thereof, promulgate the necessary rules and regulations," the COMELEC promulgated Resolution No. 2272 Sections 4 and 5 of which provide as follows:
Sec. 4. How instituted. — The recall of an elective provincial, city or municipal official shall be commenced by the filing of a duly verified notice of recall containing the address and precinct number of the voter filing the notice, and the name of the official sought to be recalled, his position, and the ground(s) for the recall. Each notice shall refer to only one official.
The notice shall be filed in triplicate with the local Election Registrar if the recall involves a city or municipal official, or with the Provincial Election
Supervisor if it involves a provincial official, one copy of which shall be posted upon receipt thereof on the bulletin board in the city/municipal hall.
If the recall involves a provincial official, two additional copies of the notice shall also be furnished by the voter filing the notice to the Election Registrar of each city and municipality in the province, one copy of which shall be posted upon receipt thereof on the bulletin board in the city/municipal hall.
In every case, the voter filing the notice of recall shall furnish a copy thereof to the official sought to be recalled, the Commission on Elections in Manila and the Election Records and Statistics Department of the Commission.
Sec. 5. Schedule and place of signing of the petition. — The Election Registrar shall submit to the Commission on Elections, not later than ten days from filing of the notice of recall, the schedule of the signing of the petition to recall for approval and funding . . . 9
In the case of Sanchez v. COMELEC 10, petitioners therein contended that the aforegoing "Resolution No. 2272 is unconstitutional there being no legislative enactment yet on [the] mechanism of recall as mandated under Sec. 3, Art. X of the Constitution". 11 It is true, as private respondent asseverates, that we upheld the constitutionality of Resolution No. 2272, but not because we found nothing constitutionally infirm about the procedure of allowing the initiatory recall petition to be filed by only one person. The issue in Sanchez was not this questioned procedure but the legal basis for the exercise by the COMELEC of its rule-making power in the alleged absence of a grant of such power by an enabling statute on recall. Thus we ruled:
While it is true that Sec. 3, Art. X of the Constitution mandates the Congress to enact a local government code providing among others for an effective mechanism of recall, nothing in said provision could be inferred the repeal of BP 337, the local government code existing prior to the adoption of the 1987 Constitution. Sec. 3, Art. X of the Constitution merely provides that the local government code to be enacted by Congress shall be "more responsive" than the one existing at present. Until such time that a more responsive and effective local government code is enacted, the present code shall remain in full force and effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.
Considering that the present local government code (BP 337) is still in effect, respondent COMELEC's promulgation of Resolution No. 2272 is therefore valid and constitutional, the same having been issued pursuant to Sec. 59 of BP 337. It reads:
Sec. 59. Supervision by the Commission on Elections. — The Commission on Elections shall conduct and supervise the process of and election on recall . . . and, in pursuance thereof, promulgate the necessary rules and regulations. 12
We reiterated the foregoing ruling in the case of Evardone v.COMELEC 13 in this wise:
Article XVIII, Section 3 of the 1987 Constitution expressly provides that all existing laws not inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case.
xxx xxx xxx
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the exercise of such powers, promulgate the necessary rules and regulations. . . . Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional. Consequently, the respondent COMELEC had the authority to
approve the petition for recall and set the date for the signing of said petition. 14
In Sanchez and Evardone, the COMELEC-prescribed procedure of (1) allowing the recall petition to be filed by at least one person or by less than 25% of the total number of registered voters and then (2) inviting voters to sign said petition on a date set for that purpose, was never put to issue. As this is the crux of the present constitutional challenge, the proper time has come for this court to issue a definitive ruling on the matter.
Apropos for starters is the following chronicle of the evolution of the mechanism of recall as a mode of removing a public officer by direct action of the people, essayed in the case of Garcia v. COMELEC 15:
Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy.
Recall as a mode of removal of elective local officials made its maiden appearance in section 2 of Article XI entitled Local Government, viz.:
Sec. 2. The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall . . .
The Batasang Pambansa then enacted BP 337 entitled, "The Local Government Code of 1983. Section 54 of its Chapter 3
provided only one mode of initiating the recall elections of local election officials, i.e., by petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned . . . .
Our legal history does not reveal any instance when this power of recall as provided by BP 337 was exercised by our people.
In February, 1986, however, our people more than exercised their right of recall for they resorted to revolution and they booted out of office the highest elective officials of the land. The successful use of people power to remove public officials who have forfeited the trust of the electorate led to its firm institutionalization of the 1987 Constitution. Its Article XIII expressly recognized the Role and Rights of People's Organizations . . . .
Section 3 of its Article X also reiterated the mandate for Congress to enact a local government code which "shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative and referendum . . . . In response to this constitutional call, Congress enacted R.A. 7160, otherwise known as the Local Government Code of 1991, which took effect on January 1, 1992." 16
Section 69 (d) of the Local Government Code of 1991 expressly provides that "recall of any elective . . . municipal . . . official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected". The law is plain and unequivocal as to what initiates recall proceedings: only a petition of at least 25% of the total number of registered voters, may validly initiate recall proceedings. We take careful note of the phrase, "petition of at least twenty-five percent (25%)" and point out that the law does not state that the petition must be signed by at least 25% of the registered voters; rather, the petition must be "of" or by, at least 25% of the registered voters, i.e., the petition must be filed, not by one person only, but by at least 25% of the total number of registered voters. This is understandable, since the signing of the petition is statutorily required to be
undertaken "before the election registrar or his representative, and in the presence of a representative of the official sought to be recalled, and in a public place in the . . . municipality . . . " 17. Hence, while the initiatory recall petition may not yet contain the signatures of at least 25% of the total number of registered voters, the petition must contain the names of at least 25% of the total number of registered voters in whose behalf only one person may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by a number of people less than the foregoing 25% statutory requirement, much less, the filing thereof by just one person, as in the instant case, since this is indubitably violative of clear and categorical provisions of subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice or in a vacuum. They knew that this is the requirement under a majority of the constitutions and recall statutes in various American states to the same extent that they were aware of the rationale therefor. While recall was intended to be an effective and speedy remedy to remove an official who is not giving satisfaction to the electorate regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates 18 it is a power granted to the people who, in concert, desire to change their leaders for reasons only they, as a collective, can justify. In other words, recall must be pursued by the people, not just by one disgruntled loser in the elections or a small percentage of disenchanted electors. Otherwise, its purposes as a direct remedy of the people shall be defeated by the ill motives of a few among them whose selfish resort to recall would destabilize the community and seriously disrupt the running of government.
A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum voter requirement in American recall statutes, unmistakably reveals the vigilance of lawmakers against the abuse of the power of recall. For instance, the Supreme Court of Illinois held in the case of In Re Bower 19 that:
[t]he only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his political policies and decisions. We view the statutory provision requiring the number of petition signers to equal at least 45% of the total votes case in the last general election for mayor as a further attempt to insure that an official will not have to defend his policies against frivolous attacks launched
by a small percentage of disenchanted electors. 20
Along the same lines, the Supreme Court of Colorado held in the case of Bernzen, v. City of Boulder 21 that:
[t]he framers, by requiring that a recall petition contain the signatures of at least 25% of all votes cast in the last election for all candidates for the position which the person sought to be recalled occupies, assured that a recall election will not be held in response to the wishes of a small and unrepresentative minority. However, once at least 25% of the electorate have expressed their dissatisfaction, the constitution reserves the recall power to the will of the electorate. 22
And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan echoed the foregoing posturings in this wise:
Much of what has been said to justify a limit upon recall clearly not provided or contemplated by the Constitution has revealed fears about an irresponsible electorate . . . . A much cited Nebraska case pertaining to a Nebraska recall statute provides some answers which are equally applicable to the Michigan constitutional right of recall:
. . . Doubtless the provision requiring 30 per cent of the electors to sign the petition before the council [is] compelled to act was designed to avoid such a contingency. The Legislature apparently assumed that nearly one-third of the electorate would not entail upon the taxpayers the cost of an election unless the charges made approved themselves to their understanding and they were seriously dissatisfied with the services of the incumbent of the office. 24
In the instant case, this court is confronted with a procedure that is unabashedly repugnant to the applicable law and no less such to the spirit underlying that law. Private respondent who is a lawyer, knows that Section 69 (d) of the Local Government Code plainly provides that recall is validly initiated by a petition of 25%
of the total number of registered voters. Notwithstanding such awareness, private respondent proceeded to file the petition for recall with only herself as the filer and initiator. She claims in her petition that she has, together with many others in Tumauini, Isabela, lost confidence in the leadership of petitioner. But the petition does not bear the names of all these other citizens of Tumauini who have reportedly also become anxious to oust petitioner from the post of mayor. There is no doubt that private respondent is truly earnest in her cause, and the very fact that she affixed her name in the petition shows that she claims responsibility for the seeming affront to petitioner's continuance in office. But the same cannot be said of all the other people whom private respondent claims to have sentiments similar to hers. While the people are vested with the power to recall their elected officials, the same power is accompanied by the concomitant responsibility to see through all the consequences of the exercise of such power, including rising above anonymity, confronting the official sought to be recalled, his family, his friends, and his supporters, and seeing the recall election to its ultimate end. The procedure of allowing just one person to file the initiatory recall petition and then setting a date for the signing of the petition, which amounts to inviting and courting the public which may have not, in the first place, even entertained any displeasure in the performance of the official sought to be recalled, is not only violative of statutory law but also tainted with an attempt to go around the law. We can not and must not, under any and all circumstances, countenance a circumvention of the explicit 25% minimum voter requirement in the initiation of the recall process.
WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby GRANTED. COMELEC Resolution No. 96-2951 is hereby DECLARED NULL and VOID and accordingly SET ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made permanent.
Costs against private respondent.
SO ORDERED.
[G.R. No. 140560. May 4, 2000]
JOVITO O. CLAUDIO, petitioner, vs. COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and RICHARD ADVINCULA, respondents.
[G.R. No. 140714. May 4, 2000]
PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented by its Chairman, RICHARD ADVINCULA, petitioner, vs. THE COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and HON. JOVITO O. CLAUDIO, respondents.
D E C I S I O N
MENDOZA, J.: Calrky
These are petitions arising from the proceedings initiated by the Preparatory Recall Assembly of Pasay City (PRA) in the Commission on Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE PREPARATORY RECALL ASSEMBLY RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999 FOR THE RECALL OF MAYOR JOVITO CLAUDIO OF PASAY CITY. G.R. No. 140560 is a petition for certiorari and prohibition, seeking the nullification of the resolution,[1] dated October 18, 1999, of the COMELEC giving due course to the petition for the recall of petitioner Jovito O. Claudio as mayor of Pasay City. On the other hand, G.R. No. 140714 is a petition for mandamus filed by the PRA, represented by its Chair, Richard Advincula, to compel the COMELEC to set the date for the holding of recall elections in Pasay City pursuant to the aforecited resolution of the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor of Pasay City in the May 11, 1998 elections. He assumed office on July 1, 1998.
Sometime during the second week of May 1999, the chairs of several barangays in Pasay City gathered to discuss the possibility of filing a petition for recall against Mayor Claudio for loss of confidence. On May 19, 1999, at the residence of barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City, several barangay chairs formed an ad hoc committee for the purpose of convening the PRA. Richard Advincula, private respondent in G.R. No. 140560 and petitioner in G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and sangguniang kabataan chairs of Pasay City, adopted Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as chair of the PRA, invited the Mayor, Vice-Mayor, Station Commander, and thirteen (13) Councilors of Pasay City to witness the formal submission to the Office of the Election Officer on July 2, 1999 of the petition for recall. Mesm
As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of service of the petition on the Office of the City Mayor. Pursuant to the rules of the COMELEC, copies of the petition were posted on the bulletin boards of the local COMELEC office, the City Hall, the Police Department, the public market at Libertad St. and Taft Avenue, and at the entrance of the Sta. Clara Church on P. Burgos St., all in Pasay City. Subsequently, a verification of the authenticity of the signatures on the resolution was conducted by Ligaya Salayon, the election officer for Pasay City designated by the COMELEC.
Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev. Ronald Langub, and Roberto L. Angeles, alleging procedural and substantive defects in the petition, to wit: (1) the signatures affixed to the resolution were actually meant to show attendance at the PRA meeting; (2) most of the signatories were only representatives of the parties concerned who were sent there merely to observe the proceedings; (3) the convening of the PRA took place within the one-year prohibited period; (4) the election case,[2] filed by Wenceslao Trinidad in this Court, seeking the annulment of the proclamation of petitioner Claudio as mayor of Pasay City, should first be decided before recall proceedings against petitioner could be filed; and (5) the recall resolution failed to obtain the majority of all the members of the PRA, considering that 10 were actually double entries, 14 were not duly accredited members of the barangays, 40 sangguniang kabataan officials had withdrawn their support, and 60 barangay chairs executed affidavits of retraction. Slx
In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed the oppositions against it. On the issue of whether the PRA was constituted by a majority of its members, the COMELEC held that the 1,073 members who attended the May 29, 1999 meeting were more than necessary to constitute the PRA, considering that its records showed the total membership of the PRA was 1,790, while the statistics of the Department of Interior and Local Government (DILG) showed that the total membership of the PRA was 1,876. In either case, since only a majority is required to constitute the PRA, clearly, a majority had been obtained in support of the recall resolution. Based on the verification made by election officer Ligaya Salayon, the COMELEC found the signatures of 958 members of the PRA sufficient. On whether the pendency of the case questioning the proclamation of petitioner was a prejudicial question which must first be decided before any recall election could be held, the COMELEC ruled that it was not and that petitioner was merely using the pendency of the case to delay the recall proceedings. Finally, on whether the petition for recall violated the bar on recall within one year from the elective official's assumption of office, the COMELEC ruled in the negative, holding that recall is a process which starts with the filing of the petition for recall. Since the petition was filed on July 2, 1999, exactly one year and a day after petitioner Claudio's assumption of office, it was held that the petition was filed on time.
Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000, after which the Court, by the vote of 8 to 6 of its members,[3] resolved to dismiss the petition in G.R. No. 140560 for lack of showing that the COMELEC committed a grave abuse of discretion. On the other hand, the Court unanimously dismissed the petition in G.R. No. 140714 on the ground that the issue raised therein had become moot and academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in Pasay City on April 15, 2000. Consequently, the petition for mandamus in G.R. No. 140714 to compel the COMELEC to fix a date for the recall elections in Pasay City is no longer tenable. We are thus left with only petitioner Claudio's action for certiorari and prohibition.
The bone of contention in this case is 74 of the Local Government Code (LCG)[4] which provides: Scslx
Limitations on Recall. - (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election.
As defined at the hearing of these cases on April 4, 2000, the issues are:
WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No. 7160) ...
A. The word "recall" in paragraph (b) covers a process which includes the convening of the Preparatory Recall Assembly and its approval of the recall resolution.
B. The term "regular local election" in the last clause of paragraph (b) includes the election period for that regular election or simply the date of such election.
(1)
On Whether the Word "Recall" in Paragraph (b) of 74 of the Local Government Code Includes the Convening of the
Preparatory Recall Assembly and the Filing by it of a Recall Resolution
Petitioner contends that the term "recall" in 74(b) refers to a process, in contrast to the term "recall election" found in 74(a), which obviously refers to an election. He claims that "when several barangay chairmen met and convened on May 19, 1999 and unanimously resolved to initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for the purpose of adopting a resolution to initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of confidence, the process of recall began" and, since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally convened and all proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null and void. Slxsc
The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for recall and ends with the conduct of the recall election, and that, since the petition for recall in this case was filed on July 2, 1999, exactly one year and a day after petitioner's assumption of office, the recall was validly initiated outside the one-year prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in 74 refers to a process. They disagree only as to when the process starts for purposes of the one-year limitation in paragraph (b) of 74.
We can agree that recall is a process which begins with the convening of the preparatory, recall assembly or the gathering of the signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the holding of the election on the scheduled date.[5] However, as used in paragraph (b) of 74, "recall" refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. Several reasons can be cited in support of this conclusion.
First, 74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other hand, 69 provides that "the power of recall ...shall be exercised by the registered voters of a local government unit to which the local elective official belongs." Since the power vested on the electorate is not the power to initiate recall proceedings[6] but the power to elect an official into office, the limitations in 74 cannot be deemed to apply to the entire recall proceedings. In other words, the term "recall" in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions for recall filed with the COMELEC - there is no legal limit on the number of times such processes may be resorted to. These are merely preliminary steps for the purpose of initiating a recall. The limitations in 74 apply only to the exercise of the power of recall which is vested in the registered voters. It is this - and not merely, the preliminary steps required to be taken to initiate a recall - which paragraph (b) of 74 seeks to limit by providing that no recall shall take place within one year from the date of assumption of office of an elective local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC[7] where two objections were raised against the legality of PRAs: (1) that even the power to initiate recall proceedings is the sole prerogative of the electorate which cannot be delegated to PRAs, and (2) that by vesting this power in a PRA, the law in effect unconstitutionally authorizes it to shorten the term of office of incumbent elective local officials. Both objections were dismissed on the ground that the holding of a PRA is not the recall itself. With respect to the first objection, it was held that it is the power to recall and not the power to initiate recall that the Constitution gave to the people. With respect to the second objection, it was held that a recall resolution "merely sets the stage for the official concerned before the tribunal of the people so he can justify why he should be allowed to continue in office. [But until] the people render their sovereign judgment, the official concerned remains in office . . . ." Sdaadsc
If these preliminary proceedings do not produce a decision by the electorate on whether the local official concerned continues to enjoy the confidence of the people, then, the prohibition in paragraph (b) against the holding of a recall, except one year after the official's assumption of office, cannot apply to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose of the limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall take place within one year from the date of assumption of office of the official concerned, and (2) that no recall shall take place within one year immediately preceding a regular local election.
The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective local official. In the Bower case[8] cited by this Court in Angobung v. COMELEC,[9] it was held that "The only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions." The one-year limitation was reckoned as of the filing of
a petition for recall because the Municipal Code involved in that case expressly provided that "no removal petition shall be filed against any officer or until he has actually held office for at least twelve months." But however the period of prohibition is determined, the principle announced is that the purpose of the limitation is to provide a reasonable basis for evaluating the performance of an elective local official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary proceedings to initiate a recall can be held even before the end of the first year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated before the official concerned has been in office for one-year would be to allow him to be judged without sufficient basis. As already stated, it is not the holding of PRA nor the adoption of recall resolutions that produces a judgment on the performance of the official concerned; it is the vote of the electorate in the Election that does. Therefore, as long as the recall election is not held before the official concerned has completed one year in office, he will not be judged on his performance prematurely.Rtcspped
Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of discussing the performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of assembly of its members. The people cannot just be asked on the day of the election to decide on the performance of their officials. The crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To the contrary, they may result in the expression of confidence in the incumbent.
Our esteemed colleague Justice Puno says in his dissent that the purpose of the one-year period in paragraph (b) is to provide the local official concerned a "period of repose" during which "[his] attention should not be distracted by any impediment, especially by disturbance due to political partisanship." Unfortunately, the law cannot really provide for a period of honeymoon or moratorium in politics. From the day an elective official assumes office, his acts become subject to scrutiny and criticism, and it is not always easy to determine when criticism of his performance is politically motivated and when it is not. The only safeguard against the baneful and enervating effects of partisan politics is the good sense and self restraint of the people and its leaders against such shortcomings of our political system. A respite from partisan politics may, have the incidental effect of providing respite from partisanship, but that is not really the purpose of the limitation on recall under the law. The limitation is only intended
to provide a sufficient basis for evaluating and judging the performance of an elected local official.
In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls initiated directly by the people." Justice Puno cites the "embarrassing repudiation by the people of [Kaloocan City's] Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo, they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing election the local official whose recall is sought is actually reelected. Laws converting municipalities into cities and providing for the holding of plebiscites during which the question of cityhood is submitted to the people for their approval are not always approved by the people. Yet, no one can say that Congress is not a good judge of the will of the voters in the locality. In the case of recall elections in Kaloocan City, had it been shown that the PRA was resorted to only because those behind the move to oust the incumbent mayor failed to obtain the signatures of 25% of the voters of that city to a petition for his recall, there may be some plausibility for the claim that PRAs are not as good a gauge of the people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot be more representative of the sentiments of the people than those initiated by PRAs whose members represent the entire electorate in the local government unit. Voters who directly initiate recalls are just as vulnerable to political maneuverings or manipulations as are those composing PRAs. Korte
The other point regarding Justice Punos claim is that the question here is not whether recalls initiated by 25% of the voters are better. The issue is whether the one-year period of limitation in paragraph (b) includes the convening of the PRA. Given that question, will convening the PRA outside this period make it any more representative of the people, as the petition filed by 25 % of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall -
1. Because 74 speaks of limitations on "recall" which, according to 69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b);
2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; and
3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office as mayor of that city, we hold that there is no bar to its holding on that date.
(2)
On Whether the Phrase "Regular Local Election" in the Same Paragraph (b) of 74 of the Local Government Code includes the Election Period for that Regular Election or Simply the Date of Such Election
Petitioner contends, however, that the date set by the COMELEC for the recall election is within the second period of prohibition in paragraph (b). He argues that the phrase "regular local elections" in paragraph (b) does not only mean "the day of the regular local election" which, for the year 2001 is May 14, but the election period as well, which is normally at least forty five (45) days immediately before the day of the election. Hence, he contends that beginning March 30, 2000, no recall election may be held. Sclaw
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year immediately preceding a regular local election." Had Congress intended this limitation to refer to the campaign period, which period is defined in the Omnibus Election Code,[10] it could have expressly said so.
Moreover, petitioner's interpretation would severely limit the period during which a recall election may be held. Actually, because no recall election may be held until one year after the assumption of office of an elective local official, presumably on June 30 following his election, the free period is only the period from July 1 of the following year to about the middle of May of the succeeding year. This is a period of only nine months and 15 days, more or less. To construe the second limitation in paragraph (b) as including the campaign period would reduce this period to eight months. Such an interpretation must be rejected, because it would devitalize the right of recall which is designed to make local government units" more responsive and accountable." Sclex
Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code,[11] unless otherwise fixed by the COMELEC, the election period commences ninety (90) days before the day of the election and ends thirty (30) days thereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph (b) includes the "election period" would emasculate even more a vital right of the people.
To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on the holding of recall elections. First, paragraph (a) prohibits the holding of such election more than once during the term of office of an elective local official. Second, paragraph (b) prohibits the holding of such election within one year from the date the official assumed office. And third, paragraph (b) prohibits the holding of a recall election within one year immediately preceding a regular local election. As succinctly stated in Paras v. COMELEC,[12] "[p]aragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject to recall election, that is, during the second year of office."
(3)
On Whether the Recall RESOLUTION was Signed by a Majority of the PRA and Duly Verified
Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering the holding of a recall election. He contends that a majority of the signatures of the members of the PRA was not obtained because 74 members did not really sign the recall resolution. According to petitioner, the 74 merely signed their names on pages 94-104 of the resolution to signify their attendance and not their concurrence. Petitioner claims that this is shown by the word "Attendance" written by hand at the top of the page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not raised before the COMELEC, in which the claim made by petitioner was that some of the names in the petition were double entries, that some members had withdrawn their support for the petition, and that Wenceslao Trinidad's pending election protest was a prejudicial question which must first be resolved before the petition for recall could be given due course. The order of the COMELEC embodying the stipulations of the parties and defining the issues to be resolved does not include the issue now being raised by petitioner. Xlaw
Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was
mistaken for the attendance sheet which is a separate document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their attendance at the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in the recall resolution of which the pages in question are part.
The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it, is not commissioned as notary public for Pasay City but for Makati City. As in the case of the first claim, this issue was not raised before the COMELEC itself. It cannot, therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the petition in G.R. No. 140714 is DISMISSED for having been rendered moot and academic.
SO ORDERED.
WILFREDO M. CATU, A.C. No. 5738Complainant, Vs. ATTY. VICENTE G. RELLOSA,Respondent
R E S O L U T I O NCORONA, J.: Complainant Wilfredo M. Catu is a co-owner of a lot[1] and the building erected thereon located at 959 San Andres Street, Malate, Manila. His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu[2] and Antonio Pastor[3] of one of the units in the building. The latter ignored demands for them to vacate the premises. Thus, a
complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of Manila[4] where the parties reside.
Respondent, as punong barangay of Barangay 723,
summoned the parties to conciliation meetings.[5] When the parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in court. Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered his appearance as counsel for the defendants in that case. Because of this, complainant filed the instant administrative complaint,[6] claiming that respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay. In his defense, respondent claimed that one of his duties as punong barangay was to hear complaints referred to the barangays Lupong Tagapamayapa. As such, he heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head of the Lupon, he performed his task with utmost objectivity, without bias or partiality towards any of the parties. The parties, however, were not able to amicably settle their dispute and Regina and Antonio filed the ejectment case. It was then that Elizabeth sought his legal assistance. He acceded to her request. He handled her case for free because she was financially distressed and he wanted to prevent the commission of a patent injustice against her. The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. As there was no factual issue to thresh out, the IBPs Commission on Bar Discipline (CBD) required the parties to submit their respective position papers. After evaluating the contentions of the parties, the IBP-CBD found sufficient ground to discipline respondent.[7]
According to the IBP-CBD, respondent admitted that,
as punong barangay, he presided over the conciliation proceedings and heard the complaint of Regina and Antonio against Elizabeth and Pastor. Subsequently, however, he represented Elizabeth and Pastor in the ejectment case filed against them by Regina and Antonio. In the course thereof, he prepared and signed pleadings including the answer with counterclaim, pre-trial brief, position paper and notice of appeal. By so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:
Rule 6.03 A lawyer shall not,
after leaving government service, accept engagement or employment in connection
with any matter in which he intervened while in said service. Furthermore, as an elective official, respondent
contravened the prohibition under Section 7(b)(2) of RA 6713:[8]
SEC. 7. Prohibited Acts and
Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official ands employee and are hereby declared to be unlawful: xxx xxx xxx (b) Outside employment and other activities related thereto. Public officials and employees during their incumbency shall not: xxx xxx xxx
(2) Engage in the private practice of profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; xxx (emphasis supplied)
According to the IBP-CBD, respondents violation of this
prohibition constituted a breach of Canon 1 of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis supplied)For these infractions, the IBP-CBD recommended the
respondents suspension from the practice of law for one month with a stern warning that the commission of the same or similar act will be dealt with more severely.[9] This was adopted and approved by the IBP Board of Governors.[10]
We modify the foregoing findings regarding the
transgression of respondent as well as the recommendation on the imposable penalty. RULE 6.03 OF THE CODE OF PROFESSIONAL RESPONSIBILITY APPLIES ONLY TO FORMER GOVERNMENT LAWYERS
Respondent cannot be found liable for violation of Rule 6.03 of the Code of Professional Responsibility. As worded, that Rule applies only to a lawyer who has left government service and in connection with any matter in which he intervened while in said service. In PCGG v. Sandiganbayan,[11] we ruled that Rule 6.03 prohibits former government lawyers from accepting engagement or employment in connection with any matter in which [they] had intervened while in said service.
Respondent was an incumbent punong barangay at
the time he committed the act complained of. Therefore, he was not covered by that provision.
SEC 90 OF RA7160 , NOT SEC 7(B)(2) OF RA 6713 GOVERNS THE PRACTICE OF PROFESSION OF ELECTIVE LOCAL GOVERNMENT OFFICIALS
Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions. This is the general law which applies to all public officials and employees.
For elective local government officials, Section 90 of RA 7160[12] governs:
SEC. 90. Practice of Profession. (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;
(3) Collect any fee for their appearance in
administrative proceedings involving the local government unit of which he is an official; and
(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government.(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom.
This is a special provision that applies specifically to the
practice of profession by elective local officials. As a special law with a definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees. Lex specialibus derogat generalibus.[13]
Under RA 7160, elective local officials of provinces,
cities, municipalities and barangays are the following: the governor, the vice governor and members of thesangguniang panlalawigan for provinces; the city mayor, the city vice mayor and the members of the sangguniang panlungsod for cities; the municipal mayor, the municipal vice mayor and the members of the sangguniang bayan for municipalities and the punong barangay, the members of the sangguniang barangay and the members of the sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors
and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. This is because they are required to render full time service. They should therefore devote all their time and attention to the performance of their official duties.
On the other hand, members of the sangguniang
panlalawigan, sangguniang panlungsod or sangguniang bayan may practice their professions, engage in any occupation, or teach in schools except during session hours. In other words, they may practice their professions, engage in any occupation, or teach in schools outside their session hours. Unlike governors, city mayors and municipal mayors, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayan are required to hold regular sessions only at least once a week.[14] Since the law itself grants them the authority to practice
their professions, engage in any occupation or teach in schools outside session hours, there is no longer any need for them to secure prior permission or authorization from any other person or office for any of these purposes.
While, as already discussed, certain local elective
officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay.Expressio unius est exclusio alterius.[15] Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. And this stands to reason because they are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice a month.[16]
Accordingly, as punong barangay, respondent was not
forbidden to practice his profession. However, he should have procured prior permission or authorization from the head of his Department, as required by civil service regulations.
A LAWYER IN THE GOVT SERVICE WHO IS NOT PROHIBITED TO PRACTICE LAW MUST SECURE PRIOR AUTHORITY FROM THE HEAD OF HIS DEPARTMENT A civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned.[17] Section 12, Rule XVIII of the Revised Civil Service Rules provides:
Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, that no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or
apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors. (emphasis supplied)
As punong barangay, respondent should have
therefore obtained the prior written permission of the Secretary of Interior and Local Government before he entered his appearance as counsel for Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil Service Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants of the law, vires legis, men of the law. Their paramount duty to society is to obey the law and promote respect for it. To underscore the primacy and importance of this duty, it is enshrined as the first canon of the Code of Professional Responsibility. In acting as counsel for a party without first securing the required written permission, respondent not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility:
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)
For not living up to his oath as well as for not complying with the exacting ethical standards of the legal profession, respondent failed to comply with Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied)
Indeed, a lawyer who disobeys the law disrespects it.
In so doing, he disregards legal ethics and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers may be
eroded by the irresponsible and improper conduct of a member of the bar.[18] Every lawyer should act and comport himself in a manner that promotes public confidence in the integrity of the legal profession.[19]
A member of the bar may be disbarred or suspended
from his office as an attorney for violation of the lawyers
oath[20] and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility. WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility. He is therefore SUSPENDED from the practice of law for a period of six months effective from his receipt of this resolution. He is sternly WARNED that any repetition of similar acts shall be dealt with more severely. Respondent is strongly advised to look up and take to heart the meaning of the word delicadeza. Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into the records of respondent Atty. Vicente G. Rellosa. The Office of the Court Administrator shall furnish copies to all the courts of the land for their information and guidance.
SO ORDERED.
G.R. No. 105909 June 28, 1994
MUNICIPALITY OF PILILLA, RIZAL, petitioner, vs.HON. COURT OF APPEALS, HON. ARTURO A. MARAVE, as Presiding Judge, Regional Trial Court, Branch 78, Morong, Rizal, and PHILIPPINE PETROLEUM CORPORATION, respondents.
REGALADO, J.:
Petitioner questions and seeks the nullification of the resolution of respondent Court of Appeals in CA-G.R. SP. No. 27504 dated March 31, 1992, dismissing the petition for having been filed by a private counsel, as well as its succeeding resolution dated June 9, 1992, denying petitioner's motion for reconsideration. 1
The records show that on March 17, 1989, the Regional Trial Court of Tanay, Rizal, Branch 80, rendered judgment in Civil Case No. 057-T in favor of plaintiff, now herein petitioner Municipality of Pililla, Rizal, against defendant, now herein private respondent Philippine Petroleum Corporation (PPC, for short), ordering therein defendant to pay said plaintiff (1) the amount of P5,301,385.00 representing the tax on business due from the defendant under Section 9(A) of Municipal Tax Ordinance No. 1 of said municipality for the period from 1979 to 1983, inclusive, plus such amount of tax as may accrue until final determination of the case; (2) storage permit fee in the amount of P3,321,730.00 due from the defendant under Section 10, paragraph Z(13) (b-1-c) of the same municipal tax ordinance for the period from 1975 to 1986, inclusive, plus the amount of said fee that may accrue until final determination of the case; (3) mayor's permit fee due from the defendant under Section 10, paragraph (P) (2) of said municipal tax ordinance from 1975 to 1984, inclusive, in the amount of P12,120.00, plus such amount of the same fee as may accrue until final determination of the case; (4) sanitary inspection fee in the amount of P1,010.00 for the period from 1975 to 1984, plus the amount of this fee that may accrue until final determination of the case; and (5) the costs of suit. 2
On June 3, 1991, in G.R. No. 90776 this Court affirmed the aforesaid judgment, with the modification that business taxes accruing prior to 1976 are not to be paid by PPC because the same have prescribed, and that storage fees are not also to be paid by PPC since the storage tanks are owned by PPC and not by the municipality and, therefore, cannot be the bases of a charge for service by the municipality. 3 This judgment became final and executory on July 13, 1991 and the records were remanded to the trial court for execution.
On October 14, 1991, in connection with the execution of said judgment, Atty. Felix E. Mendiola filed a motion in behalf of plaintiff municipality with the Regional Trial Court, Branch 78, Morong, Rizal* for the examination of defendant corporation's gross sales for the years 1976 to 1978 and 1984 to 1991 for the purpose of computing the tax on business imposed under the Local Tax Code, as amended. On October 21, 1991, defendant corporation filed a manifestation to the effect that on October 18, 1991, Pililla Mayor Nicomedes Patenia received from it the sum of P11,457,907.00 as full satisfaction of the above-mentioned judgment of the Supreme Court, as evidence by the release and quitclaim documents executed by said mayor. Accordingly, on October 31, 1991 the court below issued an order denying plaintiff municipality's motion for examination and execution of
judgment on the ground that the judgment in question had already been satisfied. 4
Thereafter, on November 21, 1991 Atty. Mendiola filed a motion for reconsideration of the court's aforesaid order of October 31, 1991, claiming that the total liability of defendant corporation to plaintiff municipality amounted to P24,176,599.00, while the amount involved in the release and quitclaim executed by Mayor Patenia was only P12,718,692; and that the said mayor could not waive the balance which represents the taxes due under the judgment to the municipality and over which judgment the law firm of Atty. Mendiola had registered two liens for alleged consultancy services of 25% and attorneys' fees of 25% which, when quantified and added, amount to more than P12 million. On January 28,1992, the trial court denied the aforesaid motion for reconsideration. 5
On February 18, 1992, Atty. Mendiola, again ostensibly in behalf of herein petitioner municipality, filed a petition forcertiorari with us, which petition we referred to the Court of Appeals for proper disposition and was docketed therein as CA-G.R. SP No. 27504. 6 On March 2, 1992, respondent PPC filed a motion questioning Atty. Mendiola's authority to represent petitioner municipality. 7 Consequently, on March 31, 1992 respondent Court of Appeals dismissed the petition for having been filed by a private counsel in violation of law and jurisprudence, but without prejudice to the filing of a similar petition by the Municipality of Pililla through the proper provincial or municipal legal officer. 8 Petitioner filed a motion for reconsideration which was denied by the Court of Appeals in its resolution of June 9, 1992. 9
Petitioner is once again before us with the following assignment of errors:
1. It is an error for the Court of Appeals to consider private respondent's new issue raised for the first time on appeal, as it could no longer be considered on appeal, because it was never been (sic) raised in the court below.
2. It is an error for the Court of Appeals in dismissing (sic) the instant petition with alternative remedy of filing similar petition as it is a departure from established jurisprudence.
3. It is an error for the Court of Appeals to rule that the filing of the instant petition by the private counsel is in violation of law and jurisprudence. 10
We find the present petition devoid of merit.
The Court of Appeals is correct in holding that Atty. Mendiola has no authority to file a petition in behalf of and in the name of the Municipality of Pililla. The matter of representation of a municipality by a private attorney has been settled in Ramos vs. Court of Appeals, et al., 11 and reiterated in Province of Cebu vs. Intermediate Appellate Court, et al., 12 where we ruled that private attorneys cannot represent a province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. — The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province.
When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council. 13
Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy Law, 14 only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it. 15
For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on record. 16 In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law.
The submission of Atty. Mendiola that the exception is broad enough to include situations wherein the provincial fiscal refuses
to handle the case cannot be sustained. The fiscal's refusal to represent the municipality is not a legal justification for employing the services of private counsel. Unlike a practicing lawyer who has the right to decline employment, a fiscal cannot refuse to perform his functions on grounds not provided for by law without violating his oath of office. Instead of engaging the services of a special attorney, the municipal council should request the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case in court, pursuant to Section 1679 of the Revised Administrative Code.17
It is also significant that the lack of authority of herein counsel, Atty. Mendiola, was even raised by the municipality itself in its comment and opposition to said counsel's motion for execution of his lien, which was filed with the court a quo by the office of the Provincial Prosecutor of Rizal in behalf of said municipality. 18
The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his lack of authority to represent the municipality is untenable. The legality of his representation can be questioned at any stage of the proceedings. In the cases hereinbefore cited, 19 the issue of lack of authority of private counsel to represent a municipality was only raised for the first time in the proceedings for the collection of attorney's fees for services rendered in the particular case, after the decision in that case had become final and executory and/or had been duly executed.
Furthermore, even assuming that the representation of the municipality by Atty. Mendiola was duly authorized, said authority is deemed to have been revoked by the municipality when the latter, through the municipal mayor and without said counsel's participation, entered into a compromise agreement with herein private respondent with regard to the execution of the judgment in its favor and thereafter filed personally with the court below two pleadings entitled and constitutive of a "Satisfaction of Judgment" and a "Release and Quitclaim". 20
A client, by appearing personally and presenting a motion by himself, is considered to have impliedly dismissed his lawyer. Herein counsel cannot pretend to be authorized to continue representing the municipality since the latter is entitled to dispense with his services at any time. Both at common law and under Section 26, Rule 138 of the Rules of Court, a client may dismiss his lawyer at any time or at any stage of the proceedings, and there is nothing to prevent a litigant from appearing before the court to conduct his own litigation. 21
The client has also an undoubted right to compromise a suit without the intervention of his lawyer. 22 Even the lawyers' right to
fees from their clients may not be invoked by the lawyers themselves as a ground for disapproving or holding in abeyance the approval of a compromise agreement. The lawyers concerned can enforce their rights in the proper court in an appropriate proceeding in accordance with the Rules of Court, but said rights may not be used to prevent the approval of the compromise agreement. 23
The apprehension of herein counsel that it is impossible that the municipality will file a similar petition, considering that the mayor who controls its legislative body will not take the initiative, is not only conjectural but without factual basis. Contrary to his pretensions, there is presently a manifestation and motion pending with the trial court filed by the aforesaid municipal mayor for the withdrawal of the "Satisfaction of Judgment" and the "Release and Quitclaim"24 previously filed in the case therein as earlier mentioned.
WHEREFORE, the petition at bar is DENIED for lack of merit and the judgment of respondent Court of Appeals is hereby AFFIRMED.
SO ORDERED.
[G.R. No. 99425. March 3, 1997]ANTONIO C. RAMOS, ROSALINDA M. PEREZ, NORMA C. CASTILLO and BALIUAG MARKET VENDORS ASSOCIATION, INC., petitioners, vs. COURT OF APPEALS, HON. CAMILO O. MONTESA, JR., in his capacity as Presiding Judge of the Regional Trial Court of Bulacan, Branch 19, and MUNICIPALITY OF BALIUAG, respondents.
D E C I S I O N
PANGANIBAN, J.:
Who has the legal authority to represent a municipality in lawsuits? If an unauthorized lawyer represents a municipality, what is the effect of his participation in the proceedings? Parenthetically, does a motion to withdraw the appearance of the unauthorized counsel have to comply with Rule 15 of the Rules of Court regarding notice and hearing of motions?
These questions are answered by this Court in resolving this petition for review under Rule 45 of the Rules of Court of the Decision[1] of public respondent[2] in CA-G.R. SP No. 23594 promulgated on March 15, 1991, which denied due course to and dismissed the petition therein. Also assailed is the Resolution[3] of public respondent promulgated on May 9, 1991, which denied the motion for reconsideration for lack of merit.
The Facts
The facts as found by public respondent are undisputed, to wit:[4]
"On April 18, 1990, petitioners Antonio C. Ramos, Rosalinda M. Perez, Norma C. Castillo, and the Baliuag Market Vendors Association, Inc. filed a petition before the court a quo docketed as Civil Case No. 264-M-9 for the Declaration of Nullity of Municipal Ordinances No. 91 (1976) and No. 7 (1990) and the contract of lease over a commercial arcade to be constructed in the municipality of Baliuag, Bulacan.
On April 27, 1980, during the hearing on the petitioners' motion for the issuance of preliminary injunction, the Provincial Fiscal appeared as counsel for respondent Municipality of Baliuag, which opposed the petition. Whereupon, a writ of preliminary injunction was issued by the court a quo on May 9, 1990.
Meanwhile, on May 3, 1990, the Provincial Fiscal and the Provincial Attorney, Oliviano D. Regalado, filed an Answer in (sic) behalf of respondent municipality.
At the pre-trial conference scheduled on May 28, 1990, Atty. Roberto B. Romanillos appeared, manifesting that he was counsel for respondent municipality. On the same date, and on June 15, 1990, respectively, Atty. Romanillos filed a motion to dissolve injunction and a motion to admit an Amended Answer with motion to dismiss.
On June 18, 1990, Provincial Attorney Oliviano D. Regalado appeared as collaborating counsel of Atty. Romanillos. The Provincial Fiscal did not appear. It was Atty. Romanillos who submitted the Reply to- petitioners' Opposition to respondents' motion to dissolve injunction. It was also Atty. Romanillos who submitted a written formal offer of evidence on July 17, 1990 for respondent municipality.
During the hearing on August 10, 1990, petitioners questioned the personality of Atty. Romanillos to appear as counsel of (sic) the respondent municipality, which opposition was reiterated on August 15, 1990, and was put in writing in petitioners' motion of August 20, 1990 to disqualify Atty. Romanillos from appearing as counsel for respondent municipality and to declare null and void the proceedings participated in and undertaken by Atty. Romanillos.
Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint motion dated August 22, 1990 stating, among others, that Atty. Romanillos was withdrawing as counsel for respondent municipality and that Atty. Regalado, as his collaborating counsel for respondent municipality, is adopting the entire proceedings participated in/undertaken by Atty. Romanillos.
On September 19, 1990 respondent Judge issued the Order now being assailed which, as already stated, denied petitioners' motion to disqualify Atty. Romanillos as counsel for respondent municipality and to declare null and void the proceedings participated in by Atty. Romanillos; and on the other hand, granted Atty. Regalado's motion 'to formally adopt the entire proceedings including the formal offer of evidence'. In support of his foregoing action, respondent Judge reasoned:
'Petitioners' motion for the disqualification of Atty. Romanillos as respondent municipality's counsel is deemed moot and academic in view of his withdrawal as counsel of said municipality pursuant to a joint motion dated August 22, 1990, although he shall remain as counsel on record of private respondent Kristi Corporation. Atty. Oliviano Regalado under the same joint motion moved for the adoption of the entire proceedings conducted by collaborating counsel, Atty. Romanillos.
It is noted that Atty. Romanillos initially entered his appearance as collaborating counsel of the Provincial Prosecutor and the Provincial Attorney when he filed a motion to dissolve injunction under motion dated May 30, 1990 and since then despite his active participation in the proceedings, the opposing counsel has never questioned his appearance until after he made a formal offer of evidence for the respondents. The acquiescence of petitioners,' counsel of (sic) his appearance is tantamount to a waiver and petitioners are, therefore, estopped to question the same. In all the pleadings made by Atty. Romanillos, it was clearly indicated that he was appearing as the collaborating counsel of the Provincial Attorney. Besides, petitioners' counsel failed to submit their comment and/or objection to the said joint motion of respondents' counsel as directed by the Court within the reglementary period. By virtue of these circumstances, all the proceedings attended to and participated in by said collaborating counsel is a fait accompli and the Court finds no cogent justification to nullify the same.'
Petitioners' motion for reconsideration of the foregoing Order was denied by respondent Judge in his Order dated October 19, 1990, the second Order now being assailed. Respondent Judge reiterated the observations which he made in the Order of September 19, 1990 that Atty. Romanillos, while actively handling the said case was merely appearing as the collaborating counsel of both the Provincial Prosecutor and the Provincial Attorney of Bulacan; that Atty. Romanillos' appearance was 'never impugned by petitioners' and was only questioned after his (Atty. Romanillos') submission of the formal offer of evidence for respondent; and that therefore, said court proceedings 'is (sic) a fait accompli'. Respondent Judge went on to say that the declaration of nullity of said proceedings and the re-taking of the same evidence by the same parties is (sic) apparently an exercise in futility'. He added that in the absence of untimely objection by petitioners to Atty. Romanillos' appearance as the collaborating counsel, petitioners are guilty of laches for having slept on (sic) their rights and are estopped as their acquiescence may be considered as waiver of such right. Furthermore, according to respondent Judge, assuming that the proceedings had been 'tainted with frailness to render the same legally objectionable', the same has been 'legally remedied' by its formal adoption upon motion of the Provincial Accorney (sic), Atty. Regalado, who is not disqualified to appear as counsel for the municipality of Baliuag, for the reason that by virtue of Section 19 of R.A. No. 5185 (The Decentralization Act of 1967), the authority to act as legal officer/adviser for (sic) civil cases of the province of Bulacan, of which the municipality of Baliuag is a political subdivision, has been transferred from the Provincial Fiscal (now Provincial Prosecutor) of Bulacan to the Provincial Attorney thereof."
As earlier stated, the Court of Appeals dismissed the petition and denied the motion for reconsideration. Hence this recourse.
The Issues
The issues raised by petitioners in their Memorandum are:[5]
"1) Under present laws and jurisprudence, can a municipality be represented in a suit against it by a private counsel?
2) If not, what is the status of the proceedings undertaken by an unauthorized private counsel;
3) Can the provincial attorney of a province act as counsel of a municipality in a suit;
4) Can the provincial attorney adopt with legal effect the proceedings undertaken by an unauthorized private counselof (sic) a municipality;
5) May a court act on an alleged motion which violates Sections 4 and 5 of Rule 15 and Section 26, Rule 128 of the Rules of Court."
Petitioners contend that the assailed Decision which affirmed the Orders of the trial court is void for being violative of the following laws:[6]
"VI-1 The respondent court violated Section 1683 of the Revised Administrative Code; Section 3, paragraph 3 (a) of Republic Act No. 2264, otherwise known as the Local Autonomy Act; and Section 35; Book IV, Title III, Chapter 12, Administrative Code of 1987 (Executive Order No. 292) when it authorized Atty. Oliviano D. Regalado, the Provincial Attorney of Bulacan, to appear as counsel for respondent Municipality of Baliuag.
VI-2 The respondent court violated Section 1683 of the Revised Administrative Code; Section 3, paragraph 3 (a) of Republic Act No. 2264, otherwise known as the Local Autonomy Act; Section 35, Book IV, Title III, Chapter 12, Executive Order No. 292, otherwise known as the Administrative Code of 1987; and Article 1352 of the New Civil Code, when it denied the petitioners' motion to declare the proceedings undertaken or participated in by said Atty. Roberto B. Romanillos, as private counsel of respondent Municipality, null and void.
VI-3 The respondent court acted in excess of its jurisdiction and in grave abuse of discretion when it acted and granted the respondent's JOINT MOTION dated August 22, 1990 (Annex 'H') which, as a rule, is a mere worthless piece of paper which the respondent judge/court has no authority to act upon, considering that said motion was filed in court in patent violation of or without complying with the mandatory requirements provided for by Sections 4 and 5 of Rule 15 and Section 26 of Rule 138 of the Rules of Court."
Public respondent did not give due course to the petition "because it does not prima facie show justifiable grounds for the issuance of certiorari."[7] Public respondent adds that:[8]
"Considering the foregoing jurisprudence, the logical conclusion is that the Provincial Attorney of Bulacan has now the authority to represent the municipality of Baliuag in its law suits.
It follows that respondent Judge was correct in ruling in the assailed Order of October 19, 1990 that even assuming, arguendo, that the proceedings by the court a quo which had been participated in by Atty. Romanillos are legally objectionable, this was legally remedied by the formal adoption by the provincial Attorney, Atty. Regalado, of the said proceedings, considering that the provincial attorney is not disqualified from representing the municipality of Baliuag in civil cases.
In the second place, the record discloses that Atty. Romanillos had appeared as counsel for respondent municipality of Baliuag in collaboration with the Provincial Prosecutor and the Provincial Attorney, as shown in the motion to dissolve injunction dated May 28, 1990 which Atty. Romanillos had filed for respondent municipality. Accordingly and pursuant to the aforecited provisions of law, it cannot correctly be said that respondent Judge had acted with grave abuse of discretion when he allowed Atty. Romanillos to act as private counsel and Atty. Regalado, Provincial Attorney of Bulacan, to appear as counsel for respondent Municipality of Baliuag. Perforce, it also cannot be correctly said that respondent Judge violated the aforecited provisions when he denied petitioners' motion to declare null and void the proceedings undertaken by and participated in by Atty. Romanillos as private counsel of the municipality of Baliuag.
At any rate, even granting, only for the sake of argument, that Atty. Romanillos' appearance as counsel for the municipality could not be legally authorized under the aforesaid provisions of law, the fact that Atty. Regalado as Provincial Attorney of Baliuag had formally adopted the proceedings participated in by Atty. Romanillos as counsel for the municipality of Baliuag had served, as already stated, to cure such a defect.
Thirdly, We are likewise unable to see grave abuse of discretion in respondent Judge's actuation in granting the joint motion filed by Atty. Romanillos and Atty. Regalado for the withdrawal of the former as private counsel of respondent municipality, and the adoption by the latter of the proceedings participated in/undertaken by the former, including the formal offer of evidence submitted by the former."
Public respondent likewise found that the "joint motion does not partake of the nature of an adversarial motion which would have rendered non-compliance with Sections 4 and 5 of Rule 15 of the Rules of Court fatal to the motion."[9] It is to be emphasized that petitioners "sought the disqualification of Atty.
Romanillos x x x (Thus,) what petitioners had sought to (be) achieve(d) in their said motion was in fact what Atty. Romanillos had sought x x x in the joint motion dated August 22, 1990."[10]
Respondent municipality submits that Section 19 of RA 5185:
"is not meant to prohibit or prevent the Provincial Attorney to act as legal adviser and legal officer for municipalities and municipal districts because such interpretations would be to say the least, absurb (sic). In this jurisdiction, a province is composed of municipalities and municipal districts, and therefore they are deemed included in the provisions of Section 19 of Republic Act 5185. It is also impractical and contrary to the spirit of the law to limit the sphere of authority of the Provincial Attorney to the province only."[11]
The different allegations boil down to three main issues: (1) Who is authorized to represent a municipality in a civil suit against it? (2) What is the effect on the proceedings when a private counsel represents a municipality? Elsewise stated, may the proceedings be validated by a provincial attorney's adoption of the actions made by a private counsel? (3) Does a motion of withdrawal of such unauthorized appearance, and adoption of proceedings participated in by such counsel have to comply with Sections 4 and 5[12] of Rule 15 of the Rules of Court?
The Court's Ruling
We affirm the Decision and Resolution of public respondent.
First Issue: Who Is Authorized to Represent a Municipality in Its Lawsuits?
In the recent case of Municipality of Pililla, Rizal vs. Court of Appeals,[13] this Court, through Mr. Justice Florenz D. Regalado, set in clear-cut terms the answer to the question of who may legally represent a municipality in a suit for or against it, thus:[14]
"x x x The matter of representation of a municipality by a private attorney has been settled in Ramos vs. Court of Appeals, et al.,[15] and reiterated in Province of Cebu vs. Intermediate Appellate Court, et al.,[16] where we ruled that private attorneys cannot represent a province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
'Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof (sic) original jurisdiction is vested
in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province.
When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council.'[17]
Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy Law,[18] only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it.[19]
For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on record.[20] In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law."
The provincial fiscal's functions as legal officer and adviser for the civil cases of a province and corollarily, of the municipalities thereof, were subsequently transferred to the provincial attorney.[21]
The foregoing provisions of law and jurisprudence show that only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in its lawsuits. Only in exceptional instances may a private attorney be hired by a municipality to represent it in lawsuits. These exceptions are enumerated in the case of Alinsug vs. RTC Br. 58, San Carlos City, Negros Occidental,[22] to wit:[23]
"Indeed, it appears that the law allows a private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province. This provision has its apparent origin in the ruling inDe Guia v. The Auditor General (44 SCRA 169, March 29, 1979) where the Court held that the municipality's authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old Administrative Code as legal basis, the Court therein cited Enriquez, Sr. v. Gimenez [107 Phil. 932 (1960)] which enumerated instances when the provincial fiscal is disqualified to represent in court a particular municipality; if and when original jurisdiction of case involving the municipality is vested in the
Supreme Court, when the municipality is a party adverse to the provincial government or to some other municipality in the same province, and when, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or otherwise.
Thereafter, in Ramos vs. Court of Appeals (108 SCRA 728, October 30, 1981), the Court ruled that a municipality may not be represented by a private law firm which had volunteered its services gratis, in collaboration with the municipal attorney and the fiscal, as such representation was violative of Sec. 1683 of the old Administrative Code. This strict coherence to the letter of the law appears to have been dictated by the fact that 'the municipality should not be burdened with expenses of hiring a private lawyer' and that the interests of the municipality would be best protected if a government lawyer handles its litigations."' (Underscoring supplied.)
None of the foregoing exceptions is present in this case. It may be said that Atty. Romanillos appeared for respondent municipality inasmuch as he was already counsel of Kristi Corporation which was sued with respondent municipality in this same case. The order of the trial court dated September 19, 1990, stated that Atty. Romanillos "entered his appearance as collaborating counsel of the provincial prosecutor and the provincial attorney."[24] This collaboration is contrary to law and hence should not have been recognized as legal. It has already been ruled in this wise:
"The fact that the municipal attorney and the fiscal are supposed to collaborate with a private law firm does not legalize the latter's representation of the municipality of Hagonoy in Civil Case No. 5095-M. While a private prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in civil cases wherein a municipality is the plaintiff."[25]
As already stated, private lawyers may not represent municipalities on their own. Neither may they do so even in collaboration with authorized government lawyers. This is anchored on the principle that only accountable public officers may act for and in behalf of public entities and that public funds should not be expended to hire private lawyers.
Petitioners cannot be held in estoppel for questioning the legality of the appearance of Atty. Romanillos, notwithstanding that they questioned the witnesses of respondent municipality during the hearing of its motion to dissolve the preliminary injunction. Municipality of Pililla, Rizal vs. Court of Appeals[26] held that the legality of the representation of an unauthorized counsel may be raised at any stage of the proceedings. This Court stated that:[27]
"The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his
lack of authority to represent the municipality is untenable. The legality of his representation can be questioned at any stage of the proceedings. In the cases hereinbefore cited, the issue of lack of authority of private counsel to represent a municipality was only raised for the first time in the proceedings for the collection of attorney's fees for services rendered in the particular case, after the decision in that case had become final and executory and/or had been duly executed."
Elementary fairness dictates that parties unaware of the unauthorized representation should not be held in estoppel just because they did not question on the spot the authority of the counsel for the municipality. The rule on appearances of a lawyer is that
"(u)ntil the contrary is clearly shown, an attorney is presumed to be acting under authority of the litigant whom he purports to represent. (Azotes v. Blanco, 78 Phil. 739) His authority to appear for and represent petitioner in litigation, not having been questioned in the lower court, it will be presumed on appeal that counsel was properly authorized to file the complaint and appear for his client. (Republic v. Philippine Resources Development Corporation, 102 Phil. 960)"[28]
Second Issue: Effect on Proceedings by Adoption of Unauthorized Representation
Would the adoption by Atty. Regalado of the proceedings participated in by Atty. Romanillos validate such proceedings? We agree with public respondent that such adoption produces validity. Public respondent stated the reasons [29] to which we agree:
"Moreover, it does not appear that the adoption of proceedings participated in or undertaken by Atty. Romanillos when he was private counsel for the respondent municipality of Baliuag such as the proceedings on the motion to dissolve the injunction, wherein petitioners had even cross-examined the witnesses presented by Atty. Romanillos in support of said motion and had even started to present their witnesses to sustain their objection to the motion would have resulted in any substantial prejudice to petitioners' interest. As We see it, to declare the said proceedings null and void notwithstanding the formal adoption thereof by Atty. Regalado as Provincial Attorney of Bulacan who is authorized to represent respondent municipality of Baliuag in court and to require trial anew to cover the same subject matter, to hear the same witnesses and to admit the same evidence adduced by the same parties cannot enhance the promotion of justice."
This Court believes that conferring legitimacy to the appearance of Atty. Romanillos would not cause substantial prejudice on petitioners. Requiring new trial on the mere legal technicality that the municipality was not represented by a legally authorized counsel would not serve the interest of justice. After all, this Court does not see any injustice committed against petitioners by the adoption of the work of private counsel nor any interest of justice being served by requiring retrial of the case by the duly authorized legal representative of the town.
In sum, although a municipality may not hire a private lawyer to represent it in litigations, in the interest of substantial justice however, we hold that a municipality may adopt the work already performed in good faith by such private lawyer, which work is beneficial to it (1) provided that no injustice is thereby heaped on the adverse party and (2) provided further that no compensation in any guise is paid therefor by said municipality to the private lawyer. Unless so expressly adopted, the private lawyer's work cannot bind the municipality.
Third Issue: "Joint Motion" Need Not Comply with Rule 15
We also agree with the justification of public respondent that a motion to withdraw the appearance of an unauthorized lawyer is a non-adversarial motion that need not comply with Section 4 of Rule 15 as to notice to the adverse party. The disqualification of Atty. Romanillos was what petitioners were really praying for when they questioned his authority to appear for the municipality. The disqualification was granted, thereby serving the relief prayed for by petitioners. Such being the case, no "notice directed to the parties concerned and served at least 3 days before the hearing thereof"[30] need be given petitioners, the questioned motion not being contentious. Besides, what petitioners were questioning as to lack of authority was remedied by the adoption of proceedings by an authorized counsel, Atty. Regalado. The action of the trial court allowing the motion of respondent municipality effectively granted petitioners' motion to disqualify Atty. Romanillos. In People vs. Leviste,[31] we ruled that:
"While it is true that any motion that does not comply with the requirements of Rule 15 should not be accepted for filing and, if filed, is not entitled to judicial cognizance, this Court has likewise held that where a rigid application of the rule will result in a manifest failure or miscarriage of justice, technicalities may be disregarded in order to resolve the case. Litigations should, as much as possible, be decided on the merits and not on technicalities. As this Court held in Galvez vs. Court of Appeals, an order of the court granting the motion to dismiss despite the absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings x x x (which) cannot deprive a competent court of jurisdiction over the Case."'(Citations omitted).
It should be remembered that rules of procedure are but tools designed to facilitate the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is empowered to suspend their operation.[32]
WHEREFORE, premises considered, the Petition is DENIED and the assailed Decision and Resolution are AFFIRMED. No costs.
SO ORDERED.
G.R. No. 111230 September 30, 1994
ENRIQUE T. GARCIA, ET AL., petitioners, vs.COMMISSION ON ELECTIONS and SANGGUNIANG BAYAN OF MORONG, BATAAN, respondents.
PUNO, J.:
The 1987 Constitution is borne of the conviction that people power can be trusted to check excesses of government. One of the means by which people power can be exercised is thru initiatives where local ordinances and resolutions can be enacted
or repealed. An effort to trivialize the effectiveness of people's initiatives ought to be rejected.
In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang Bayan ng Morong, Bataan agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in accord with Republic ActNo. 7227.
On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The petition states:
I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye 1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang Kapasiyahan na aanib lamang ang Morong sa SSEZ kung ang mga sumusunod na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng Morong at Bataan:
(A). Ibalik sa Bataan ang "Virgin Forests" — isang bundok na hindi nagagalw at punong-puno ng malalaking punong-kahoy at iba'-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan.
(K). Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkakaloob ng pamahalaang national o "Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa Lalawigan.
(D). Payagang magtatag rin ng sariling "special economic zones" ang bawat bayan ng Morong, Hermosa at Dinalupihan.
(E). Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.
(G). Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.
(H). Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa
magbukas pa ng pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan.
(I). Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan.
(J). Magkaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa at Bataan.
The municipality of Morong did not take any action on the petition within thirty (30) days after its submission. Petitioners then resorted to their power of initiative under the Local Government Code of 1991. 3 They started to solicit the required number of signatures 4 to cause the repeal of said resolution. Unknown to the petitioners, however, the Honorable Edilberto M. de Leon, Vice Mayor and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11, 1993 to the Executive Director of COMELEC requesting the denial of " . . . the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productive and futility." 5 We quote the letter,viz:
The Executive DirectorC O M E L E CIntramuros, Metro Manila
S i r:
In view of the petition filed by a group of proponents headed by Gov. Enrique T. Garcia, relative to the conduct of a local initiative and/or referendum for the annulment of Pambayang Kapasyahan Blg. 10, Serye 1993, may we respectfully request to deny the petition referred thereto considering the issues raised by the proponents were favorably acted upon and endorsed to Congress and other government agencies by the Sangguniang Bayan of Morong.
For your information and guidance, we are enumerating hereunder the issues raised by the petitioners with the corresponding actions undertaken by the Sangguniang Bayan of Morong, to wit:
ISSUES RAISED BY PROPONENTS
I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye ng taong 1993.
II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ kung:
a) Ibabalik sa Morong ang pag-aaring Grande Island, kabundukan at Naval Reservation;
b) Ibase sa aring Lupa ng LGU ang kikitain at mapapasok na manggagawa nila sa SSEZ;
c) Isama ang nasabing lupa sa pagkukuwenta ng "IRA" ng Morong, Hermosa at Dinalupihan;
d) Makapagtatag ng sariling "economic zones" ang Morong, Hermosa at Dinalupihan;
e) Pabayaan bukas ang pinto ng Morong patungong SSEZ at magbukas ng dalawang (2) pinto pa;
(f) Konkretohin ang daang Morong papunta sa Orani at Dinalupihan;
g) Pumili ng SBMA Chairman na taga-ibang lugar.
ACTIONS UNDERTAKEN BY THE SB OF MORONG
1. By virtue of R.A. 7227, otherwise known as the Bases Conversion Development Act of 1992, all actions of LGU's correlating on the above issues are merely recommendatory in nature when such provisions were already embodied in the statute.
2. Corollary to the notion, the Sangguniang Bayan of Morong passed and approved
Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines to amend certain provisions of R.A. 7227, wherein it reasserted its position embodied in Pambayan Kapasyahan Blg. 08 and Blg. 12, Serye ng taong 1992, (Attached and marked as Annex "A:) which tackled the same issues raised by the petitioners particularly items a), b), c), e), and g).
3. Item d) is already acted upon by BCDA Chairman Arsenio Bartolome III in its letter to His Excellency President Fidel V. Ramos, dated May 7, 1993 (Attached and marked as Annex "B") with clarifying letter from BCDA Vice-Chairman Rogelio L. Singson regarding lands on Mabayo and Minanga dated June 3, 1993 that only lands inside the perimeter fence are envisioned to be part of SBMA.
4. Item f), President Ramos in his marginal note over the letter request of Morong, Bataan Mayor Bienvenido L. Vicedo, the Sangguniang Bayan and Congressman Payumo, when the Resolution of Concurrence to SBMA was submitted last April 6, 1993, order the priority implementation of completion of Morong-Dinalupihan (Tasik-Road) Project, including the Morong-Poblacion-Mabayo Road to DPWH. (Attached and marked as Annex "C").
Based on the foregoing facts, the Sangguniang Bayan of Morong had accommodated the clamor of the petitioners in accordance with its limited powers over the issues. However, the Sangguniang Bayan of Morong cannot afford to wait for amendments by Congress of R.A. 7227 that will perhaps drag for several months or years, thereby delaying the development of Morong, Bataan.
Henceforth, we respectfully reiterate our request to deny the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productive and futility.
Thank you and more power.
Very truly yours,
(SGD.) EDILBERTO M. DE LEONMun. Vice Mayor/Presiding Officer
In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local initiative on the ground that its subject is "merely a resolution (pambayang kapasyahan) and not an ordinance." 6 On July 13, 1993, the COMELEC en banc further resolved to direct Provincial Election Supervisor, Atty. Benjamin N. Casiano, to hold action on the authentication of signatures being gathered by petitioners. 7
These COMELEC resolutions are sought to be set aside in the petition at bench. The petition makes the following submissions:
5. This is a petition for certiorari and mandamus.
5.01 For certiorari, conformably to Sec. 7, Art. IX of the Constitution, to set aside Comelec Resolution Nos. 93-1676 and 93-1623 (Annexes "E" and "H") insofar as it disallowed the initiation of a local initiative to annul PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993 including the gathering and authentication of the required number of signatures in support thereof.
5.01.1 As an administrative agency, respondent Comelec is bound to observe due process in the conduct of its proceedings. Here, the subject resolutions, Annexes "E" and "H", were issued ex parte and without affording petitioners and the other proponents of the initiative the opportunity to be heard thereon. More importantly, these resolutions and/or directives were issued with grave abuse of discretion. A
Sangguniang Bayan resolution being an act of the aforementioned local legislative assembly is undoubtedly a proper subject of initiative. (Sec. 32, Art. VI, Constitution)
5.02 For mandamus, pursuant to Sec. 3, Rule 65, Rules of Court, to command the respondent Comelec to schedule forthwith the continuation of the signing of the petition, and should the required number of signatures be obtained, set a date for the initiative within forty-five (45) days thereof.
5.02.1 Respondent Comelec's authority in the matter of local initiative is merely ministerial. It is duty-bound to supervise the gathering of signatures in support of the petition and to set the date of the initiative once the required number of signatures are obtained.
If the required number of signatures is obtained, the Comelec shall then set a date for the initiative during which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within sixty (60) days from the date of certification by the Comelec, as provided in subsection (g) hereof, in case of provinces and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec. (Sec. 22, par. (h) R.A. 7160.
Respondent COMELEC opposed the petition. Through the Solicitor General, it contends that under the Local
Government Code of 1991, a resolution cannot be the subject of a local initiative. The same stance is assumed by the respondent Sangguniang Bayan of Morong. 8
We grant the petition.
The case at bench is of transcendental significance because it involves an issue of first impression — delineating the extent of the all important original power of the people to legislate. Father Bernas explains that "in republican systems, there are generally two kinds of legislative power, original and derivative. Original legislative power is possessed by the sovereign people. Derivative legislative power is that which has been delegated by the sovereign people to legislative bodies and is subordinate to the original power of the people." 9
Our constitutional odyssey shows that up until 1987, our people have not directly exercised legislative power, both the constituent power to amend or revise the Constitution or the power to enact ordinary laws. Section 1, Article VI of the 1935 Constitution delegated legislative power to Congress, thus "the legislative power shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives." Similarly, section 1, Article VIII of the 1973 Constitution, as amended, provided that "the Legislative power shall be vested in a Batasang Pambansa." 10
Implicit in the set up was the trust of the people in Congress to enact laws for their benefit. So total was their trust that the people did not reserve for themselves the same power to make or repeal laws. The omission was to prove unfortunate. In the 70's and until the EDSA revolution, the legislature failed the expectations of the people especially when former President Marcos wielded lawmaking powers under Amendment No. 6 of the 1973 Constitution. Laws which could have bridled the nation's downslide from democracy to authoritarianism to anarchy never saw the light of day.
In February 1986, the people took a direct hand in the determination of their destiny. They toppled down the government of former President Marcos in a historic bloodless revolution. The Constitution was rewritten to embody the lessons of their sad experience. One of the lessons is the folly of completely surrendering the power to make laws to the legislature. The result, in the perceptive words of Father Bernas, is that the new Constitution became "less trusting of public officials than the American Constitution." 11
For the first time in 1987, the system of people's initiative was thus installed in our fundamental law. To be sure, it was a late awakening. As early as 1898, the state of South Dakota has
adopted initiative and referendum in its constitution 12 and many states have followed suit. 13 In any event, the framers of our 1987 Constitution realized the value of initiative and referendum as an ultimate weapon of the people to negate government malfeasance and misfeasance and they put in place an overarching system. Thus, thru an initiative, the people were given the power to amend the Constitution itself. Sec. 2 of Art. XVII provides: "Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein." Likewise, thru an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative body. Sections 1 and 32 of Article VI provide:
Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives except to the extent reserved to the people by the provisions on initiative and referendum.
xxx xxx xxx
Sec. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereto.
The COMELEC was also empowered to enforce and administer all laws and regulations relative to the conduct of an initiative and referendum. 14 Worthwhile noting is the scope of coverage of an initiative or referendum as delineated by section 32 Art. VI of the Constitution, supra — any act or law passed by Congress or local legislative body.
In due time, Congress respondent to the mandate of the Constitution. It enacted laws to put into operation the constitutionalized concept of initiative and referendum. On August 4, 1989, it approved Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Liberally borrowed from American
laws, 15 R.A. No. 6735, among others, spelled out the requirements 16 for the exercise of the power of initiative and referendum, the conduct of national initiative and referendum; 17 procedure of local initiative and referendum; 18 and their limitations. 19 Then came Republic Act No. 7160, otherwise known as The Local Government Code of 1991. Chapter 2, Title XI, Book I of the Code governed the conduct of local initiative and referendum.
In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Respondents take the negative stance as they contend that under the Local Government Code of 1991 only an ordinance can be the subject of initiative. They rely on section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides: "Local Initiative Defined. — Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance."
We reject respondents' narrow and literal reading of the above provision for it will collide with the Constitution and will subvert the intent of the lawmakers in enacting the provisions of the Local Government Code of 1991 on initiative and referendum.
The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section 32 of Article VI provides in luminous language: "The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress, or local legislative body . . ." An act includes a resolution. Black 20 defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature, including not merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations . . . ." It is basic that a law should be construed in harmony with and not in violation of the constitution. 21 In line with this postulate, we held in In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words or provisions are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language used." 22
The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was implemented by Congress when it enacted Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating
Funds Therefor." Thus, its section 3(a) expressly includes resolutions as subjects of initiatives on local legislations, viz:
Sec. 3. Definition of Terms — For purposes of this Act, the following terms shall mean;
(a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution.
a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution, or ordinance. (Emphasis ours)
Similarly, its section 16 states: "Limitations Upon Local Legislative Bodies — Any proposition on ordinance orresolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom . . . ." On January 16, 1991, the COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum, on National and Local Laws." It likewise recognized resolutions as proper subjects of initiatives. Section 5, Article I of its Rules states: "Scope of power of initiative — The power of initiative may be exercised to amend the Constitution, or to enact a national legislation, a regional, provincial, city, municipal or barangay law, resolution or ordinance."
There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend resolutions to be proper subjects of local initiatives. The debates confirm this intent. We quote
some of the interpellations when the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and House Bill No. 21505 were being considered in the House of Representatives, viz:
THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative ad referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum on the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated.?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years. 23
Contrary to the submission of the respondents, the subsequent enactment of the local Government Code of 1991 which also dealt with local initiative did not change the scope of its coverage. More specifically, the Code did not limit the coverage of local initiatives to ordinances alone. Section 120, Chapter 2, Title IX Book I of the Code cited by respondents merely defines the concept of local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. It does not, however, deal with the subjects or matters that can be taken up in a local initiative. It is section 124 of the same Code which does. It states:
Sec. 124. Limitations on Local Initiatives. (a) The power of local initiative shall not be exercised more than once a year.
(b) Initiative shall extend only to subjects or matters which are within the legal powers of the Sanggunians to enact.
xxx xxx xxx
This provision clearly does not limit the application of local initiatives to ordinances, but to all "subjects or matters which are within the legal powers of the Sanggunians to enact," which undoubtedly includes
resolutions. This interpretation is supported by Section 125 of the same Code which provides: "Limitations upon Sanggunians. — Any proposition or ordinance approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended by the sanggunian concerned within six (6) months from the date of the approval thereof . . . ." Certainly, the inclusion of the wordproposition is inconsistent with respondents' thesis that only ordinances can be the subject of local initiatives. The principal author of the Local Government Code of 1991, former Senator Aquilino Pimentel, espouses the same view. In his commentaries on the said law, he wrote, viz: 24
4. Subject Matter Of Initiative. All sorts of measures may be the subject of direct initiative for as long as these are within the competence of the Sanggunian to enact. In California, for example, direct initiatives were proposed to enact a fishing control bill, to regulate the practice of chiropractors, to levy a special tax to secure a new library, to grant a franchise to a railroad company, and to prevent discrimination in the sale of housing and similar bills.
Direct initiative on the local lever may, therefore, cover all kinds of measures provided that these are within the power of the local Sanggunians to enact, subject of course to the other requisites enumerated in the Section.
5. Form of Initiative. Regarding the form of the measure, the section speaks only of "ordinance," although the measure may be contained in a resolution. If the registered voters can propose ordinances, why are they not allowed to propose resolutions too? Moreover, the wording of Sec. 125, below, which deals not only with ordinances but with "any proposition" implies the inclusion of resolutions. The discussion hereunder will also show support for the conclusion that resolutions may indeed be the subject of local initiative.
We note that respondents do not give any reason why resolutions should not be the subject of a local initiative. In truth, the reason lies in the well known distinction between a resolution and an ordinance — i.e., that a resolution is used whenever the
legislature wishes to express an opinion which is to have only a temporary effect while an ordinance is intended to permanently direct and control matters applying to persons or things in general. 25 Thus, resolutions are not normally subject to referendum for it may destroy the efficiency necessary to the successful administration of the business affairs of a city. 26
In the case at bench, however, it can not be argued that the subject matter of the resolution of the municipality of Morong merely temporarily affects the people of Morong for it directs a permanent rule of conduct or government. The inclusion of Morong as part of the Subic Special Economic Zone has far reaching implications in the governance of its people. This is apparent from a reading of section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military Reservations Into Other Productive Uses, Creating the Bases Conversion and Development Authority For This Purpose, Providing Funds Therefor and For Other Purposes." to wit:
Sec. 12. Subic Special Economic Zone. — Subject to the concurrence by resolution of thesangguniang panlungsod of the City of Olongapo and the sangguniang bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced, covered, and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America as amended, and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to a as the Subic Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special Economic Zone to the Office of the President. Thereafter, the President of the Philippines shall issue a proclamation defining the metes and bounds of the zone as provided herein.
The abovementioned zone shall be subject to the following policies:
(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments;
(b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow or movement of goods and capital within, into a exported out of the Subic Special Economic Zone, as well as provide incentives such as tax and duty-free importations of raw material, capital and equipment. However, exportations or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines:
(c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National Government one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the base areas.
In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic
Zone, the same shall be resolved in favor of the latter;
(d) No exchange control policy shall be applied and free markets for foreign exchange, gold, securities and futures shall be allowed and maintained in the Subic Special Economic Zone;
(e) The Central Bank, through the Monetary Board, shall supervise and regulate the operations of banks and other financial institutions within the Subic Special Economic Zone;
(f) Banking and finance shall be liberalized with the establishment of foreign currency depository units of local commercial banks and offshore banking units of foreign banks with minimum Central Bank regulation;
(g) Any investor within the Subic Special Economic Zone whose continuing investment shall not be less than Two hundred fifty thousand dollars ($250,000), his/her spouse and dependent children under twenty-one (21) years of age, shall be granted permanent resident status within the Subic Special Economic Zone. They shall have freedom of ingress and egress to and from the Subic Special Economic Zone without any need of special authorization from the Bureau of Immigration and Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this Act may also issue working visas renewable every two (2) years to foreign executives and other aliens possessing highly-technical skills which no Filipino within the Subic Special Economic Zone possesses, as certified by the Department of Labor and Employment. The names of aliens granted permanent residence status and working visas by the Subic Bay Metropolitan Authority shall be reported to the Bureau of Immigration and Deportation within thirty (30) days after issuance thereof.
(h) The defense of the zone and the security of its perimeters shall be the responsibility of the National Government in coordination with the Subic Bay Metropolitan Authority. The Subic Bay Metropolitan Authority shall
provide and establish its own internal security and fire fighting forces; and
(i) Except as herein provided, the local government units comprising the Subic Special Economic Zone shall retain their basic autonomy and identity. The cities shall be governed by their respective charters and the municipalities shall operate and function in accordance with Republic Act No. 7160, otherwise known as the Local Government Code of 1991.
In relation thereto, section 14 of the same law provides:
Sec. 14. Relationship with the Conversion Authority and the Local Government Units. —
(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall exercise administrative powers, rule-making and disbursement of funds over the Subic Special Economic Zone in conformity with the oversight function of the Conversion Authority.
(b) In case of conflict between the Subic Authority and the local government units concerned on matters affecting the Subic Special Economic zone other than defense and security, the decision of the Subic Authority shall prevail.
Considering the lasting changes that will be wrought in the social, political, and economic existence of the people of Morong by the inclusion of their municipality in the Subic Special Economic Zone, it is but logical to hear their voice on the matter via an initiative. It is not material that the decision of the municipality of Morong for the inclusion came in the form of a resolution for what matters is its enduring effect on the welfare of the people of Morong.
Finally, it cannot be gained that petitioners were denied due process. They were not furnished a copy of the letter-petition of Vice Mayor Edilberto M. de Leon to the respondent COMELEC praying for denial of their petition for a local initiative on Pambayang Kapasyahan Blg. 10, Serye 1993. Worse, respondent COMELEC granted the petition without affording petitioners any
fair opportunity to oppose it. This procedural lapse is fatal for at stake is not an ordinary right but the sanctity of the sovereignty of the people, their original power to legislate through the process of initiative. Ours is the duty to listen and the obligation to obey the voice of the people. It could well be the only force that could foil the mushrooming abuses in government.
IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 93-1623 dated July 6, 1993 and Resolution 93-1676 dated July 13, 1993 are ANNULLED and SET ASIDE. No costs.
SO ORDERED.