Republic of the PhilippinesSUPREME COURT

Baguio City

EN BANC

 

G.R. No. 116763 April 19, 1996

GOVERNOR RODOLFO C. FARIÑAS and AL NACINO, petitioners, vs.MAYOR ANGELO N. BARBA, VICE MAYOR MANUEL S. HERNANDO and EDWARD PALAFOX, respondents.

 

MENDOZA, J.:p

The question in this case is: In case of a permanent vacancy in the Sangguniang Bayan caused by the cessation from office of a member who does not belong to any political party, who can appoint the replacement and in accordance with what procedure?

This case arose from the following facts:

Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte. On March 24, 1994, he resigned after going without leave to the United States.

To fill the vacancy created by his resignation, the mayor, respondent Angelo M. Barba, recommended to the Governor of the province, respondent Rodolfo C. Fariñas, the appointment of respondent Edward Palafox.

A similar recommendation for the appointment of Edward Palafox was made by the Sangguniang Bayan of San Nicolas but the recommendation was made to Mayor Barba. The resolution, containing the recommendation, was submitted to the Sangguniang Panlalawigan of Ilocos Norte purportedly in compliance with §56 of the Local Government Code (R.A. No. 7160). 1

The Sangguniang Panlalawigan, purporting to act under this provision of the Local Government Code, disapproved the resolution "for the reason that the authority and power to appoint Sangguniang Bayan members are lodged in the Governor, and therefore, the Resolution should be addressed to the Provincial Governor." Accordingly, the Sangguniang Panlalawigan recommended to the Governor the appointment of petitioner Al Nacino, vice Carlito Domingo, as member of the Sangguniang Bayan of San Nicolas. On June 8, 1994, petitioner Governor appointed petitioner Nacino and swore him in office that same day.

On the other hand, respondent Mayor Barba appointed respondent Edward Palafox to the same position on June 8, 1994. The next day, June 9, 1994, respondent Palafox took his oath as member of the Sangguniang Bayan.

On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a petition for quo warranto and prohibition, entitled "Governor Rodolfo C. Fariñas and Al Nacino v. Mayor Angelo M. Barba, Vice Mayor Manuel S. Hernando, Jr. and Edward D. Palafox."

On July 8, 1994 the trial court rendered its decision, upholding the appointment of respondent Palafox by respondent Mayor Barba. It held:

Under the facts and circumstances as shown clearly in the case, there is no doubt the law that is applicable is sub-section "C" of Section 45 of Republic Act No. 7160 otherwise known as the Local Government Code of 1991 which provides:

In case the permanent vacancy is caused by a Sanggunian Member who does not belong to any political party, the Local Chief Executive shall upon the recommendation of the Sanggunian concerned, appoint a qualified person to fill the vacancy.

. . . Inasmuch as the permanent vacancy is in the Sanggunian Bayan of San Nicolas, Ilocos Norte, it is the Sanggunian concerned referred to in the law which recommends the appointment to fill the vacancy. . . This being so, the Local Chief Executive referred to in sub-section "C" of Section 45 of Republic Act No. 7160 is the Municipal Mayor of San Nicolas, Ilocos Norte.

It cannot be denied that the Governor has the authority to appoint a qualified person to fill the vacancy in the Sanggunian Bayan caused by resignation of a member thereof as that is vested in him or her by the Provision of No. 2, Sec. 45 of Republic Act No. 7160. To the mind of the court that authority is not vested in him or her where the permanent vacancy is caused by a Sanggunian Member who does not belong to any political party as that authority is specifically vested upon the Local Chief Executive upon recommendation of the Sanggunian concerned as per sub-section "C" of Section 45 of the same Republic Act No. 7160. Under No. 2 of Sec. 45 aforementioned the law does not require a recommendation for the appointment of Sanggunian Bayan Member to fill a permanent vacancy either from the Sangguniang Panlalawigan or from the Sanggunian Bayan. . . As such there can be no other person referred to as the Local Chief Executive having the authority to appoint other than the Municipal Mayor of the Municipality of the Sanggunian Bayan where there is permanent vacancy. This can be clearly inferred from the two (2) provisions of the law (No. 2 and sub-section C of Sec. 45 of Rep. Act No. 7160). While No. 2 of Sec. 45 specifically vests the power to appoint in the Governor, sub-sec. C of Sec. 45, specifically vests the power to appoint in the Local Chief Executive. The Local Chief Executive specifically mentioned in said sub-section C of Sec. 45 is not the Governor, for there would have been no need for the law making body to have specifically stated in the law if it had intended that the Governor is that one and the same Local Chief Executive vested with power to appoint.

Petitioners filed a motion for reconsideration, but this was denied by the trial court on August 18, 1994. Hence this petition for review on certiorari.

Petitioners contend that the power to fill a vacancy in the Sangguniang Bayan, which is created as a result of the cessation from office of a member who does not belong to a political party, is vested in the provincial governor upon recommendation of the Sangguniang Panlalawigan.

The statutory provision in question is §45 of the Local Government Code of 1991 (R.A. No . 7160) which reads:

§45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner:

(1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan;

(3) The city or municipal mayor, in the case of the sangguniang barangay, upon recommendation of the sangguniang barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefor.

(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned.

[1] Since the vacancy in this case was created by a Sanggunian member who did not belong to any political party, the specific provision involved is par. (c), to wit:

(c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy.

But who is the "local chief executive" referred? And which is the "sanggunian concerned"? With respect to the first ("local chief executive"), petitioners look to §45(a) for the answer and say that it is the governor, with respect to vacancies in the Sangguniang Panlungsod of component cities and Sangguniang Bayan, or the mayor with respect to vacancies in the Sangguniang Barangay.

In support of this view, they cite, first of all, the following provision of the former Local Government Code (B.P. Blg. 337):

§50. Permanent Vacancies in the Local Sanggunians. — In case of permanent vacancy in thesangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, or sangguniang barangay, the President of the Philippines, upon recommendation of the Minister of Local Government, shall appoint a qualified person to fill the vacancy in the sangguniang panlalawigan and the sangguniang panglungsod; the governor, in the case of sangguniang bayan members; or the city or municipal mayor, in the case of sangguniang barangay members. Except for the sangguniang barangay, the appointee shall come from the political party of the sanggunian member who caused the vacancy, and shall serve the unexpired term of the vacant office.

and, second, the following provision of the present Code:

§63. Preventive Suspension. — (a) Preventive suspension may be imposed:

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

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

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

Reference to these provisions is appropriate not for the reason advanced by petitioners, i.e., that the power to appoint implies the power to remove, but because implicit in these provisions is a policy to vest in the President, the governor and the mayor in descending order the exercise of an executive power whether to appoint in order to fill vacancies in local councils or to suspend local officials. These provisions are in pari materia with §45.

To be sure the President of the Philippines can not be referred to as "local chief executive" in §45(c) but it is apparent that the phrase is a misnomer and that the choice of this phrase was simply dictated by the need to avoid, for stylistic reasons, interminably repeating the officials on whom the power to appoint is conferred. Perhaps "authorities concerned" would have been a more accurate generic phrase to use.

For that matter, to follow private respondents' interpretation would be to run into a similar, if not greater, difficulty. For §45(a) (3) vests the power to fill vacancies in the Sangguniang Barangay in the mayor but the local chief executive of a barangay is not the mayor. It is the punong barangay. Yet "local chief executive" cannot be applied to the punong barangay without rendering §45(a) (3) meaningless. For then there would never be any occasion when the mayor, under this provision, can appoint a replacement for a member of the Sangguniang Bayan who for one reason or another ceases from office for reason other than the expiration of his term. And why should a vacancy in the Sangguniang Panlalawigan be filled by a different authority (the governor, according to this view) simply because the vacancy was created by a member who does not belong to a political party when, according to §45(a) (1), a vacancy created by a member who belongs to a political party must be filled by appointment by the President of the Philippines?

With reference to the phrase "sangguniang concerned" in §45(c), petitioners say it means, with respect to a vacancy in the Sangguniang Bayan, the Sangguniang Panlalawigan. Their reason is that under §61 of the Code, the power to investigate complaints against elective municipal officials is vested in the Sangguniang Panlalawigan:

§61. Form and Filing of Administrative Complaints — A verified complaint against any erring local elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or a component city shall be filed before the Office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sanggunian panlalawigan whose decision may be appealed to the Office of the President;

(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.

This interpretation is inconsistent with the fact that in filling vacancies in the Sangguniang Barangay it is the Sangguniang Barangay which under §45(a) (3) recommends the appointee, not the Sangguniang Panlungsod or the Sangguniang Bayan, which would be the case if petitioners' view were to prevail.

We think that the phrase "sanggunian concerned" in §45(c) should more properly be understood as referring to the Sanggunian in which the vacancy is created. This is in keeping with the policy implicit in §45(a) (3).

In other words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as providing for the filling of vacancies in the various Sanggunians when these vacancies are created as a result of the cessation from office (other than expiration of term) of members who belong to political parties. On the other hand, §45(c) must be understood as providing for the filling of vacancies created by members who do not belong to any political party. Consequently, §45 must be construed to mean that —

I. Where the Permanent Vacancy is Caused by a Sanggunian Member Belonging to a Political Party

A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized cities and independent component cities — The President, through the Executive Secretary, upon the nomination and certification of the political party to which the member who caused the vacancy belonged, as provided in §45 (b).

B. Sangguniang Panlungsod of component cities and Sangguniang Bayan — The Governor upon the nomination and certification of the political party to which the member who caused the vacancy belonged, as provided in §45 (b).

III. Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a Political Party

A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized and independent component cites — The President, through the Executive Secretary, upon recommendation of the Sangguniang Panlalawigan or Sangguniang Panlungsod as the case may be

B. Sangguniang Panlungsod of component cities and Sangguniang Bayan — The Governor upon recommendation of the Sangguniang Panlungsod or Sangguniang Bayan as the case may be

III. Where the Vacancy is Caused by a Member of the Sangguniang Barangay — City or Municipal Mayor upon recommendation of the Sangguniang Barangay

There is only one rule governing appointments to the Sangguniang Barangay. Any vacancy therein caused by the cessation from office of a member must be made by the mayor upon the recommendation of that Sanggunian. The reason is that members of the Sangguniang Barangay are not allowed to have party affiliations.

Indeed there is no reason for supposing that those who drafted §45 intended to make the manner of filling vacancies in the Sanggunians, created by members who do not belong to any political party, different from the manner of filling such vacancies when created by members who belong to political party or parties. The provision for the first must approximate the provision for the second situation. Any difference in procedure must be limited to the fact that in the case of vacancies caused by those who have political

affiliations there is a party which can nominate a replacement while there is none in the case of those who have no political affiliation. Accordingly, where there is no political party to make a nomination, the Sanggunian, where the vacancy occurs, must be considered the appropriate authority for making the recommendation, by analogy to vacancies created in the Sangguniang Barangay whose members are by law prohibited from having any party affiliation.

[2] Having determined that appointments in case of vacancies caused by Sanggunian members who do not belong to any political party must be made in accordance with the "recommendation" of the Sanggunians concerned where the vacancies occur, the next question is: Is the appointing authority limited to the appointment of those "recommended" to him? We think an affirmative answer must be given to the question. The appointing authority is not bound to appoint anyone recommended to him by the Sanggunian concerned. The power of appointment is a discretionary power. On the other hand, neither is the appointing power vested with so large a discretion that he can disregard the recommendation of the Sanggunian concerned, Since the recommendation takes the place of nomination by political party, the recommendation must likewise be considered a condition sine qua non for the validity of the appointment, by analogy to the provision of §45(b).

[3] The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor respondent Edward Palafox was appointed in the manner indicated in the preceding discussion, neither is entitled to the seat in the Sangguniang Bayan of San Nicolas, Ilocos Norte which was vacated by member Carlito B. Domingo. For while petitioner Al Nacino was appointed by the provincial governor, he was not recommended by the Sangguniang Bayan of San Nicolas. On the other hand, respondent Edward Palafox was recommended by the Sangguniang Bayan but it was the mayor and not the provincial governor who appointed him.

WHEREFORE, the decision of the Regional Trial Court of Ilocos Norte, insofar as it dismisses petitioners' action forquo warranto and prohibition, is AFFIRMED, but for different reasons from those given by the trial court in its decision.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 109005 January 10, 1994

JUAN D. VICTORIA, petitioner, vs.THE COMMISSION ON ELECTIONS and JESUS JAMES CALISIN, respondents.

Juan D. Victoria for himself and in his own behalf.

The Solicitor General for public respondent.

 

QUIASON, J.:

This is a petition for certiorari, under Rule 65 of the Revised Rules of Court in relation to section 2, Article IX of the Constitution, to set aside (a) the Resolution of the Commission on Elections (COMELEC) dated January 22, 1993, which certified respondent James Calisin as the highest ranking member of the Sangguniang Panlalawigan of the Province of Albay and (b) its Resolution dated February 22, 1993, which denied the motion for reconsideration of petitioner.

The issue in the case at bench is the ranking of the members of the Sangguniang Panlalawigan of the Province of Albay for purposes of succession.

In the May 11, 1992 Elections, the following candidates from the first, second and third districts of the Province of Albay were elected and proclaimed as members of the Sangguniang Panlalawigan, to wit:

 

FIRST DISTRICT

Name No. of Votes Garnered

1. Jesus James Calisin 28,335 votes2. Vicente Go, Sr. 17,937 votes3. Clenio Cabredo 16,705 votes

SECOND DISTRICT

1. Juan D. Victoria 32,918 votes2. Jesus Marcellana 26,030 votes3. Lorenzo Reyeg 23,887 votes

THIRD DISTRICT

1. Ramon Fernandez, Jr. 19,315 votes2. Masikap Fontanilla 19,241 votes3. Arturo Osia 17,778 votes4. Nemesio Baclao 17,545 votes

(Rollo, pp. 27-28)

Due to the suspension of Governor Romeo Salalima of the Province of Albay, Vice-Governor Danilo Azana automatically assumed the powers and functions of the governor, leaving vacant his post as vice-governor. Under the law, Azana's position as vice-governor should be occupied by the highest ranking Sangguniang member, a post being contested by petitioner and private respondent.

In answer to private respondent's petition for his declaration as senior Sanggunian member for the Province of Albay, the COMELEC issued a resolution dated January 22, 1993, certifying him as first in the order of ranking with petitioner herein as second ranking member. The COMELEC based its certification on the number of votes obtained by the Sanggunian members in relation to the number of registered voters in the district.

Thus, on February 15, 1993, Secretary Rafael M. Alunan III of the Department of Interior and Local Government designated private respondent as acting Vice-Governor of the province.

Petitioner filed a motion for reconsideration of the COMELEC resolution which was denied on February 22, 1993.

Hence, this petition.

Petitioner claims that the ranking of the Sanggunian members should not only be based on the number of votes obtained in relation to the total number of registered voters, but also on the number of voters in the district who actually voted therein. He further argues that a district may have a large number of registered voters but only a few actually voted, in which case the winning candidate would register a low percentage of the number of votes obtained. Conversely, a district may have a smaller number of registered voters but may have a big voters' turn-out, in which case the winning candidate would get a higher percentage of the votes. Applying his formula, petitioner would come out to be the highest ranking Sanggunian member.

Petitioner gives the following illustration:

1. for private respondent.

107,216 (actually voted)—————————— x 28,335 (votes obtained) = 23.40%129,793 (registered voters)

(Rollo, pp. 24, 25 and 30)

2. for petitioner

121,423 (actually voted)—————————— x 32,918 (votes obtained) = 25.84%154,665 (registered voters)

(Rollo, p. 9).

We are not persuaded.

The Local Government provides:

Sec. 44. Permanent Vacancies in the Office of the Governor, Vice-Governor, Mayor, and Vice-Mayor. — (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor, the highest ranking Sanggunian member or, in case of his permanent inability, the second highest ranking Sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other Sanggunian members according to their ranking as defined herein.

xxx xxx xxx

For purposes of succession as provided in this Chapter, ranking in the Sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. (Emphasis ours)

The COMELEC came up with the following ranking of the top three Sanggunian members:

——————————————————————————————NAME District Registered Votes Percent Rankof Elected Voters Obtained Dist'nCandidates——————————————————————————————ALBAY

CALISIN,JESUS JAMES B. 1st 130,085 28,335 21.78 1st

VICTORIA,JUAN D. 2nd 155.318 32,918 21.19 2nd

MARCELLANAJESUS, M. 2nd 155.318 26,030 16.76 3rd——————————————————————————————(Rollo, p. 14)

The law is clear that the ranking in the Sanggunian shall be determined on the basis of the proportion of the votes obtained by each winning candidate of the total number of registered voters who actually voted. In such a case, the Court has no recourse but to merely apply the law. The courts may not speculate as to the probable intent of the legislature apart from the words (Pascual v. Pascual-Bautista, 207 SCRA 561 [1992]).

In the case of Globe-Mackay Cable and Radio Corporation v. National Labor Relations Commission, 206 SCRA 710 (1992), we held that:

. . . Under the principles of statutory construction, if a statue is clear, plain and free from ambiguity, it must be given it literal meaning and applied without attempted interpretation. This plain-meaning rule or 

verba legis derived from the maxim, index animi sermo est (speech is the index of intention) rests on the valid presumption that the words employed by the legislature in a statute correctly express its intent or will and preclude the court from construing it differently. The legislature is presumed to know the meaning of the words, to have used words advisely, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure. . .

Petitioner's contention is therefore untenable considering the clear mandate of the law, which leaves no room for other interpretation but it must very well be addressed to the legislative branch and not to this Court which has no power to change the law.

Considering the foregoing, we find no grave abuse of discretion on the part of the COMELEC in issuing the Resolution dated January 22, 1993.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 134213 July 20, 1999

ROMEO J. GAMBOA, JR., petitioner, vs.MARCELO AGUIRRE, JR., and JUAN Y. ARANETA, respondents.

 

YNARES-SANTIAGO, J.:

The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)?

The facts are not in dispute.1âwphi1.nêt

In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros Occidental Governor, Vice-Governor and SP members, respectively. Sometime in August of 1995, the governor designated petitioner as Acting Governor for the duration of the former's official trip abroad until his return. When the SP held its regular session on September 6, 1995, respondents questioned the authority of petitioner to preside therein in view of his designation as Acting Governor and asked him to vacate the Chair. The latter, however, refused to do so. In another session, seven (7) members of the SP voted to allow petitioner to continue presiding while four (4) others voted against with one (1) abstention. On September 22, 1995, respondents filed before the lower court a petition for declatory relief and prohibition. In the meantime, on October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a decision and declared petitioner as "temporarily legally incapacitated to preside over the sessions of the SP during the period that he is the Acting Governor." 1 Aggrieved, petitioner filed a petition for review raising the issue earlier mentioned. Although this case is dismissible for having become moot and academic considering the expiration in 1998 of the terms of office of the local officials involved herein, the Court nonetheless proceeds to resolve this common controversy but novel issue under the existing laws on local government.

Sec. 49(a) and 466(a) (1) of Republic Act (R.A.) No. 7160 otherwise known as the Local Government Code of 1991, provide that the Vice-Governor shall be the presiding officer of the SP. 2 In addition to such function, he "become(s)" 3 the Governor and "assume(s)" 4 the higher office for the unexpired term of his predecessor, in case of "permanent vacancy" therein. When the vacancy, however, is merely temporary, the Vice-Governor "shall automatically exercise the powers (subject to certain limitations) and perform the duties and functions" 5 of the Governor. It may be noted that the code provides only for modes of succession in case of permanent vacancy in the office of the Governor and the Vice-Governor (whether single or simultaneously) as well as in case of a temporary vacancy in the office of the Governor. But, no such contingency is provided in case of temporary vacancy in the office of the Vice-Governor, just like the 1983 Local Government Code. 6

It is correct that when the Vice-Governor exercises the "powers and duties" of the Office of the Governor, he does not assume the latter office. He only "acts" as the Governor but does not "become" the Governor.

His assumption of the powers, duties and functions of the provincial Chief Executive does not create a permanent vacuum or vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title as Vice-Governor by merely becoming an Acting Governor, (not Governor) or by merely exercising the powers and duties of the higher officer. But the problem is, while in such capacity, does he temporarily relinquish the powers, functions, duties and responsibilities of the Vice-Governor, including the power to preside over the sessions of the SP?

Sad to say the new Local Government Code is silent on this matter, yet this query should be answered in the positive. A Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in nature, whereas plain members of the provincial board perform functions partaking of a legislative character. This is because the authority vested by law in the provincial boards involves primarily a delegation of some legislative powers of Congress. 7 Unlike under the old Code, where the Governor is not only the provincial Chief Executive, 8but also the presiding officer of the local legislative body, 9 the new Code delineated the union of the executive-legislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the SP and is no longer considered a member thereof. 10This is clear from the law, when it provides that "local legislative power shall be vested in theSP," 11 which is "the legislative body of the province," and enumerates therein membership consisting of the:

1.) Vice-Governor, as presiding officer,

2.) regular elective SP members,

3.) three elective sectoral representatives, and

4.) those ex-officio members, namely:

a.) president of the provincial chapter of the liga ng mga barangay,

b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,

c.) president of the provincial federation of sangguniang members of municipalities and component cities. 12

None being included in the enumeration, the Governor is deemed excluded applying the rule in legal hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local executive power in the province is vested alone in the Governor. 13 Consequently, the union of legislative-executive powers in the office of the local chief executive under the former Code has been disbanded, so that either department now comprises different and non-intermingling official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and balance between the two.

It has been held that if a Mayor who is out of the contrary is considered "effectively absent", the Vice-Mayor should discharge the duties of the mayor during the latter's absence. 14 This doctrine should equally apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this term should be reasonably construed to mean "effective" absence, 15 that is, one that renders the officer concerned powerless, for the time being, to discharge the powers and prerogatives of his office. 16 There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. 17 By virtue of the

foregoing definition, it can be said that the designation, appointment or assumption of the Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during such contingency. Considering the silence of the law on the matter, the mode of succession provided for permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be observed in the event of temporary vacancy occurring in the same office. 18 This is so because in the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.

Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the latter office, since the nature of the duties of the provincial Governor call for a full-time occupant to discharge them. 19Such is not only consistent with but also appears to be the clear rationale of the new Code wherein the policy of performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding temporary vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an "inability" on the part of the regular presiding officer (Vice Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 49(b) of the Local Government Code — concerning the election of a temporary presiding officer. The continuity of the Acting Governor's (Vice Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), "(i)n the event of the inability of the regular presiding officer to preside at the sanggunian session, the members present and constituting aquorum shall elect from among themselves a temporary presiding officer." 20

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

 

G.R. No. 107916 March 31, 1995

PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA MODAY, petitioners, vs. COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6 REGIONAL

TRIAL COURT, AGUSAN DEL SUR AND MUNICIPALITY OF BUNAWAN, Respondents.chanrobles virtual law library

 

ROMERO, J.: chanrobles virtual law library

Petitioner seeks the resolution of his Omnibus Motion for the Enforcement of Restraining Order and Contempt.chanroblesvirtualawlibrary chanrobles virtual law library

In connection with the petition for review involving the expropriation of petitioners' land by respondent Municipality of Bunawan Agusan Del Sur, the Court on December 8, 1993 resolved to issue a temporary restraining order enjoining and restraining

a) Judge Evangeline S. Yuipco of the Regional Trial Court of Prosperidad, Agusan Del Sur; Branch 6, from further enforcing her decision, dated July 2, 1991 in Special Civil Case No. 719, for "Eminent Domain", and chanrobles virtual law library

b) the respondent Municipality of Bunawan, through its incumbent Mayor from using and occupying all buildings constructed within and from further constructing any building on the land subject of the petition, effective immediately and until herein further orders from this Court.

In his aforesaid Omnibus Motion, petitioner alleges that the municipal mayor continues to use the buildings on the subject land and even constructed new "blocktiendas" thereon in October 1994. Photographs, affidavits and an invitation to an affair held there attached to the motion show such continuing use of the subject land. He prays that the municipal mayor and municipal officials be cited for contempt.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner also alleges that the sheriff has refused to enforce the TRO enjoining his regional trial court from proceeding with the case. Accordingly, he prays that a law enforcement agency be designated to enforce the restraining order by padlocking the buildings and demolishing the blocktiendas on the land.chanroblesvirtualawlibrary chanrobles virtual law library

In their opposition to the motion, respondent municipal mayor admits the construction of temporary booths for a certain municipal project which was due to be demolished after October 29, 1994. However, no photos or other proofs were submitted to show that the booths had indeed been demolished. Respondent also alleges that the buildings and the

land were indeed used, not for Mayor Bustillo's personal purposes, but for public service and public interest.chanroblesvirtualawlibrary chanrobles virtual law library

Respondent Municipality of Bunawan, acting through its mayor, clearly disobeyed the restraining order issued by the Court on December 8, 1993. Respondent admits having constructed temporary booths on the subject lands as well as having used the buildings thereon for public service-oriented activities.chanroblesvirtualawlibrary chanrobles virtual law library

The explanation given by respondent municipality is unacceptable. The purpose for which the buildings were used is immaterial. Respondent was duty bound to obey the injunction issued by this Court. The TRO was explicit in its language. Violating its purpose and language is patently contemptuous and merits the corresponding punishment.chanroblesvirtualawlibrary chanrobles virtual law library

We reiterate the restraining order issued by the Court on December 8, 1993.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the respondent Municipality of Bunawan, Agusan Del Sur, through its incumbent Municipal Mayor, is cited for contempt and is hereby FINED in the amount of one thousand pesos (P1,000.00) with the WARNING that a repetition or continuation of the acts herein found to constitute contempt of court will be dealt with more severely. The mayor is hereby ordered to DEMOLISH the structures subject of the restraining order.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 156052             March 7, 2007

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO, and BONIFACIO S. TUMBOKON,Petitioners, vs.HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, Respondent.

D E C I S I O N

CORONA, J.:

In this original petition for mandamus,1 petitioners Social Justice Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to enforce Ordinance No. 8027.

The antecedents are as follows.

On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.2 Respondent mayor approved the ordinance on November 28, 2001.3 It became effective on December 28, 2001, after its publication.4

Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a principle described as the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general welfare of the society.5 This is evident from Sections 1 and 3 thereof which state:

SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I.

xxx xxx xxx

SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed.

Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under Section 1 to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil companies Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation.

However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding (MOU)6 with the oil companies in which they agreed that "the scaling down of the Pandacan Terminals [was] the most viable and practicable option." Under the MOU, the oil companies agreed to perform the following:

Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU, undertake a program to scale down the Pandacan Terminals which shall include, among others, the immediate removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the commencing of works for the creation of safety buffer and green zones surrounding the Pandacan Terminals. xxx

Section 2. – Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish joint operations and management, including the operation of common, integrated and/or shared facilities, consistent with international and domestic technical, safety, environmental and economic considerations and standards. Consequently, the joint operations of the OIL COMPANIES in the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate agreement covering the commercial and operational terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES.

Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which shall be taken from the properties of the OIL COMPANIES and not from the surrounding communities, shall be the sole responsibility of the OIL COMPANIES.

The City of Manila and the DOE, on the other hand, committed to do the following:

Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of implementing the spirit and intent thereof.

Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL COMPANIES to continuously operate in compliance with legal requirements, within the limited area resulting from the joint operations and the scale down program.

Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES’ compliance with the provisions of this MOU.

Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones and shall exert all efforts at preventing future occupation or encroachment into these areas by illegal settlers and other unauthorized parties.

The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the same resolution, the Sangguniandeclared that the MOU was effective only for a period of six months starting July 25, 2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 139 extending the validity of Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue special business permits to the oil companies. Resolution No. 13, s. 2003 also called for a reassessment of the ordinance.10

Meanwhile, petitioners filed this original action for mandamus on December 4, 2002 praying that Mayor Atienza be compelled to enforce Ordinance No. 8027 and order the immediate removal of the terminals of the oil companies.11

The issues raised by petitioners are as follows:

1. whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals, and

2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No. 8027.12

Petitioners contend that respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local Government Code (RA 7160),13 to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals of the oil companies. Instead, he has allowed them to stay.

Respondent’s defense is that Ordinance No. 8027 has been superseded by the MOU and the resolutions.14However, he also confusingly argues that the ordinance and MOU are not inconsistent with each other and that the latter has not amended the former. He insists that the ordinance remains valid and in full force and effect and that the MOU did not in any way prevent him from enforcing and implementing it. He maintains that the MOU should be considered as a mere guideline for its full implementation.15

Under Rule 65, Section 316 of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. Mandamus is an extraordinary writ that is employed to compel the performance, when refused, of a ministerial duty that is already imposed on the respondent and there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner should have a well-defined, clear and certain legal right to the performance of the act and it must be the clear and imperative duty of respondent to do the act required to be done.17

Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists. The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established. Unless the right to the relief sought is unclouded, mandamus will not issue.18

To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance, petitioner SJS states that it is a political party registered with the Commission on Elections and has its offices in Manila. It claims to have many members who are residents of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.

We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding concerns a public right and its object is to compel a public duty, the people who are interested in the execution of the laws are regarded as the real parties in interest and they need not show any specific interest.19 Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the city’s ordinances. Respondent never questioned the right of petitioners to institute this proceeding.

On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all laws and ordinances relative to the governance of the city."> 20  One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by theSanggunian or annulled by the courts.21 He has no other choice. It is his ministerial duty to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.23

The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian have made the respondent’s duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. This is also connected to the second issue raised by petitioners, that is, whether the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or repeal Ordinance No. 8027.

We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.24

Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack25 on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.

WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately enforce Ordinance No. 8027.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

 

G.R. No. 97882 August 28, 1996

THE CITY OF ANGELES, Hon. ANTONIO ABAD SANTOS, in his capacity as MAYOR of Angeles City, and the SANGGUNIANG PANLUNGSOD OF THE CITY OF ANGELES, petitioners, vs.COURT OF APPEALS and TIMOG SILANGAN DEVELOPMENT CORPORATION, respondents.

 

PANGANIBAN, J.:p

In resolving this petition, the Court addressed the questions of whether a donor of open spaces in a residential subdivision can validly impose conditions on the said donation; whether the city government as donee can build and operate a drug rehabilitation center on the donated land intended for open space; and whether the said donation may be validly rescinded by the donor.

Petitioners claim they have the right to construct and operate a drug rehabilitation center on the donated land in question, contrary to the provisions stated in the amended Deed of Donation.

On the other hand, private respondent, owner/developer of the Timog Park residential subdivision in Angeles City, opposed the construction and now, the operation of the said center on the donated land, which is located within said residential subdivision.

Before us is a petition for review on certiorari assailing the Decision 1 of the Court of Appeals 2 dated October 31, 1990, which affirmed the decision 3 of the Regional Trial Court of Angeles City Branch 56, 4 dated February 15, 1989.

The Antecedents

In a Deed of Donation dated March 9, 1984, subsequently superseded by a Deed of Donation dated September 27, 1984, which in turn was superseded by an Amended Deed of Donation dated November 26, 1984, private respondent donated to the City of Angeles, 51 parcels of land situated in Barrio Pampang, City of Angeles, with an aggregate area of 50,676 square meters, more or less, part of a bigger area also belonging to private respondent. The amended deed 5 provided, among others, that:

2. The properties donated shall be devoted and utilized solely for the site of the Angeles City Sports Center (which excludes cockfighting) pursuant to the plans to be submitted within six (6) months by the DONEE to the DONOR for the latter's approval, which approval shall not be unreasonably withheld as long as entire properties donated are developed as a Sports Complex. Any change or modification in the basic design or concept of said Sports Center must have the prior written consent of the DONOR.

3. No commercial building, commercial complex, market or any other similar complex, mass or tenament (sic) housing/building(s) shall be constructed in the properties donated nor shall cockfighting, be allowed in the premises.

4. The construction of the Sports Center shall commence within a period of one (1) year from March 9, 1984 and shall be completed within a period of five (5) years from March 9, 1984.

xxx xxx xxx

6. The properties donated (which is more than five (5) percent of the total land area of the DONOR's subdivision) shall constitute the entire open space for DONOR's subdivision and all other lands or areas previously reserved or designated, including Lot 1 and Lot 2A of Block 72 and the whole Block 29 are dispensed with, and rendered free, as open spaces, and the DONEE hereby agrees to execute and deliver all necessary consents, approvals, endorsements, and authorizations to effect the foregoing.

7. The properties donated are devoted and described as "open spaces" of the DONOR's subdivision, and to this effect, the DONEE, upon acceptance of this donation, releases the DONOR and/or assumes any and all obligations and liabilities appertaining to the properties donated.

8. Any substantial breach of the foregoing provisos shall entitle the DONOR to revoke or rescind this Deed of Donation, and in such eventuality, the DONEE agrees to vacate and return the premises, together with all improvements, to the DONOR peacefully without necessity of judicial action.

On July 19, 1988, petitioners started the construction of a drug rehabilitation center on a portion of the donated land. Upon learning thereof, private respondent protested such action for being violative of the terms and conditions of the amended deed and prejudicial to its interest and to those of its clients and residents. Private respondent also offered another site for the rehabilitation center. However, petitioners ignored the protest, maintaining that the construction was not violative of the terms of the donation. The alternative site was rejected because, according to petitioners, the site was too isolated and had no electric and water facilities.

On August 8, 1988, private respondent filed a complaint with the Regional Trial Court, Branch 56, in Angeles City against the petitioners, alleging breach of the conditions imposed in the amended deed of donation and seeking the revocation of the donation and damages, with preliminary injunction and/or temporary restraining order to halt the construction of the said center.

On August 10, 1988, the trial court issued a temporary restraining order to enjoin the petitioners from further proceeding with the construction of the center, which at that time was already 40% complete.

However, the trial court denied the prayer for preliminary injunction based on the prohibition in Presidential Decree No. 1818.

In their Answer with counterclaim, petitioners admitted the commencement of the construction but alleged inter aliathat the conditions imposed in the amended deed were contrary to Municipal Ordinance No. 1, Series of 1962, otherwise known as the Subdivision Ordinance of the Municipality of Angeles. 6

On October 15, 1988, private respondent filed a Motion for Partial Summary Judgment on the ground that the main defense of the petitioners was anchored on a pure question of law and that their legal position was untenable.

The petitioners opposed, contending that they had a meritorious defense as (1) private respondents had no right to dictate upon petitioners what to do with the donated land and how to do it so long as the purpose remains for public use; and (2) the cause of action of the private respondent became moot and academic when the Angeles City Council repealed the resolution providing for the construction of said drug rehabilitation center and adopted a new resolution changing the purpose and usage of said center to a "sports development and youth center" in order to conform with the sports complex project constructed on the donated land.

On February 15, 1989, the trial court rendered its decision, in relevant part reading as follows:

. . . the Court finds no inconsistency between the conditions imposed in the Deeds of Donation and the provision of the Subdivision Ordinance of the City of Angeles requiring subdivisions in Angeles City to reserve at least one (1) hectare in the subdivision as suitable sites known as open spaces for parks, playgrounds, playlots and/or other areas to be rededicated to public use. On the contrary, the condition requiring the defendant city of Angeles to devote and utilize the properties donated to it by the plaintiff for the site of the Angeles City Sports Center conforms with the requirement in the Subdivision Ordinance that the subdivision of the plaintiff shall be provided with a playground or playlot, among others.

On the other hand the term "public use'" in the Subdivision Ordinance should not be construed to include a Drug Rehabilitation Center as that would be contrary to the primary purpose of the Subdivision Ordinance requiring the setting aside of a portion known as "Open Space" for park, playground and playlots, since these are intended primarily for the benefit of the residents of the subdivision. While laudable to the general public, a Drug Rehabilitation Center in a subdivision will be a cause of concern and constant worry to its residents.

As to the third issue in paragraph (3), the passage of the Ordinance changing the purpose of the building constructed in the donated properties from a Drug Rehabilitation Center to a Sports Center comes too late. It should have been passed upon the demand of the plaintiff to the defendant City of Angeles to stop the construction of the Drug Rehabilitation Center, not after the complaint was filed.

Besides, in seeking the revocation of the Amended Deed of Donation, plaintiff also relies on the failure of the defendant City of Angeles to submit the plan of the proposed Sports Center within six (6) months and construction of the same within five years from March 9, 1984, which are substantial violations of the conditions imposed in the Amended Deed of Donation.

The dispositive portion of the RTC decision reads:

WHEREFORE, judgment is hereby rendered:

(1) Enjoining defendants, its officers, employees and all persons acting on their behalf to perpetually cease and desist from constructing a Drug Rehabilitation Center or any other building or improvement on the Donated Land.

(2) Declaring the amended Deed of Donation revoked and rescinded and ordering defendants to peacefully vacate and return the Donated Land to plaintiff, together with all the improvements existing thereon. And,

(3) Denying the award of compensatory or actual and exemplary damages including attorney's fees.

NO PRONOUNCEMENT AS TO COST.

In March 1989, petitioners fried their Notice of Appeal. On April 15, 1989 while the appeal was pending, petitioners inaugurated the Drug Rehabilitation Center. 7

On April 26, 1991, the respondent Court rendered the assailed Decision affirming the ruling of the trial court. Subsequently, the petitioners motion for re-consideration was also denied for lack of merit.

Consequently, this Petition for Review.

The Issues

The key issues 8 raised by petitioners may be restated as follows:

I. Whether a subdivision owner/developer is legally bound under Presidential Decree No. 1216 to donate to the city or municipality the "open space" allocated exclusively for parks, playground and recreational use.

II. Whether the percentage of the "open space" allocated exclusively for parks, playgrounds and recreational use is to be based on the "gross area" of the subdivision or on the total area reserved for "open space".

III. Whether private respondent as subdivision owner/developer may validly impose conditions in the Amended Deed of Donation regarding the use of the "open space" allocated exclusively for parks and playgrounds..

IV. Whether or not the construction of the Drug Rehabilitation Center on the donated "open space" may be enjoined.

V. Whether the donation by respondents subdivision owner/developer of the "open space" of its subdivision in favor of petitioner City of Angeles may be revoked for alleged violation of the Amended Deed of Donation.

Central to this entire controversy is the question of whether the donation of the open space may be revoked at all.

First Issue: Developer Legally Bound to Donate Open Space

The law involved in the instant case is Presidential Decree No. 1216, dated October 14, 1977, 9 which reads:

PRESIDENTIAL DECREE NO. 1216

Defining "Open Space" In Residential Subdivisions And Amending Section 31 Of Presidential Decree No. 957 Requiring Subdivision Owners To Provide Roads, Alleys, Sidewalks And Reserve Open Space For Parks Or Recreational Use.

WHEREAS, there is a compelling need to create and maintain a healthy environment in human settlements by providing open spaces, roads, alleys and sidewalks as may be deemed suitable to enhance the quality of life of the residents therein;

WHEREAS, such open spaces, roads, alleys and sidewalks in residential subdivisions are for public use and are, therefore, beyond the commerce of men;

WHEREAS, pursuant to Presidential Decree No. 953 at least thirty percent (30%) of the total area of a subdivision must be reserved, developed and maintained as open space for parks and recreational areas, the cost of which will ultimately be borne by the lot buyers which thereby increase the acquisition price of subdivision lots beyond the reach of the common mass;

WHEREAS, thirty percent (30%) required open space can be reduced to a level that will make the subdivision industry viable and the price of residential lots within the means of the low income group at the same time preserve the environmental and ecological balance through rational control of land use and proper design of space and facilities;

WHEREAS, pursuant to Presidential Decree No. 757, government efforts in housing, including resources, functions and activities to maximize results have been concentrated into one single agency, namely, the National Housing Authority;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and decree:

Sec. 1. For purposes of this Decree, the term "open apace" shall mean an area reserved exclusively for parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals, health centers, barangay centers and other similar facilities and amenities.

Sec. 2. Section 31 of Presidential Decree No. 957 is hereby amended to read as follows:

Sec. 31. Roads, Alleys, Sidewalks and Open Spaces — The owner as developer of a subdivision shall provide adequate roads, alleys and sidewalks. For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space. Such open space shall have the following standards allocated exclusively for parks, playgrounds and recreational use:

a. 9% of gross area for high density or social housing (66 to 100 family lots per gross hectare).

b. 7% of gross area for medium-density or economic housing (21 to 65 family lots per gross hectare).

c. 3.5% of gross area for low-density or open market housing (20 family lots and below per gross hectare).

These areas reserved for parks, playgrounds and recreational use shall be non-alienable public lands, and non-buildable. The plans of the subdivision project shall include tree planting on such parts of the subdivision as may be designated by the Authority.

Upon their completion certified to by the Authority, the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local governments to accept provided, however, that the parks and playgrounds maybe donated to the Homeowners Association of the project with the consent of the city or municipality concerned. No portion of the parks and playgrounds donated thereafter shall be converted to any other purpose or purposes.

Sec. Sections 2 and 5 of Presidential Decree No. 953 are hereby repealed and other laws, decrees, executive orders, institutions, rules and regulations or parts thereof inconsistent with these provisions are also repealed or amended accordingly.

Sec. 4. This Decree shall take effect immediately.

Pursuant to the wording of Sec. 31 of P.D. 957 as above amended by the aforequoted P.D. No. 1216, private respondent is under legal obligation to donate the open space exclusively allocated for parks, playgrounds and recreational use to the petitioner.

This can be clearly established by referring to the original provision of Sec. 31 of P.D. 957, which reads as follows:

Sec. 31. Donation of roads and open spaces to local government — The registered owner developer of the subdivision or condominium project, upon completion of the development of said project may, at his option, convey by way of donation the roads and open spaces found within the project to the city or municipality wherein the project is located. Upon acceptance of he donation by the city or municipality concerned, no portion of the area donated shall thereafter be converted to any other purpose or purposes unless after hearing, the proposed conversion is approved by the Authority. (Emphasis supplied)

It will be noted that under the aforequoted original provision, it was optional on the part of the owner or developer to donate the roads and spaces found within the project to the city or municipality where the project is located. Elsewise stated, there was no legal obligation to make the donation.

However, said Sec. 31 as amended now states in its last paragraph:

Upon their completion . . ., the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local government to accept; provided, however, that the parks and playgrounds may be donated to the Homeowners Association of the project with the consent of the city or must concerned. . . .

It is clear from the aforequoted amendment that it is no longer optional on the part of the subdivision owner/developer to donate the grounds; rather there is now a legal obligation to donate the same. Although there is a proviso a proviso that the donation of the parks and playgrounds may be made to the homeowners association of the project with the consent of the city of municipality, concerned, nonetheless, the owner/developer is still obligated under the law to donate. Such option does not change the mandatory hectare of the provision. The donation has to be made regardless of which donee is picked by the owner/developer. The consent requirement before the same can be donated to the homeowners" association emphasizes this point.

Second Issue: Percentage of Area for Parks and Playgrounds

Petitioners contend that the 3.5% to 9% allotted by Sec. 31 for parks, playgrounds and recreational uses should be based on the gross area of the entire subdivision, and not merely on the area of the open space alone, as contended by private respondent and as decided by the respondent Court. 10

The petitioners are correct. The language of Section 31 of P.D. 957 as amended by Section 2 of P.D. 1216 is wanting in clarity and exactitude, but it can be easily inferred that the phrase "gross area" refers to the entire subdivision area. The said phrase was used four times in the same section in two sentences, the first of which reads:

. . . For subdivision projects one (1) hectare or more, the owner or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space, . . .

Here, the phrase "30% of the gross area" refers to the total area of the subdivision, not of the open space. Otherwise, the definition of "open space" would be circular. Thus, logic dictates that the same basis be applied in the succeeding instances where the phrase "open space" is used, i.e., "9% of gross area... 7% of gross area... 3.5% of gross area..." Moreover, we agree with petitioners that construing the 3.5% to 9% as applying to the totality of the open space would result in far too small an area being devoted for parks, playgrounds, etc., thus rendering meaningless and defeating the purpose of the statute. This becomes clear when viewed in the light of the original requirement of P.D. 953 ("Requiring the Planting of Trees in Certain Places, etc."), section 2 of which reads:

Sec. 2. Every owner of land subdivided into commerce/residential/industrial lots after the effectivity of this Decree shall reserve, develop and maintain not less than thirty percent (30%) of the total area of the subdivision, exclusive of roads, service streets and alleys, as open space for parks and recreational areas.

No plan for a subdivision shall be approved by the Land Registration Commission or any office or agency of the government unless at least thirty percent (30%) of the total area of the subdivision, exclusive, of roads, service streets and alleys, is reserved as open space for parks and recreational areas . . .

To our mind, it is clear that P.D. 1216 was an attempt to achieve a happy compromise and a realistic balance between the imperatives of environmental planning and the need to maintain economic feasibility in subdivision and housing development, by reducing the required area for parks, playgrounds and recreational uses from thirty percent (30%) to only 3.5% — 9% of the entire area of the subdivision.

Third Issue: Imposition of Conditions in Donation of Open Space

Petitioners argue that since the private respondent is required by law to donate the parks and playgrounds, it has no right to impose the condition in the Amended Deed of Donation that "the properties donated shall be devoted and utilized solely for the site of the Angeles City Sports Center." It cannot prescribe any condition as to the use of the area donated because the use of the open spaces already governed by P.D. 1216. In other words, the donation should be absolute. Consequently, the conditions in the amended deed which were allegedly violated aredeemed not written. Such being the case, petitioners cannot be considered to have committed any violation of the terms and conditions of the said amended deed, as the donation is deemed unconditional, and it follows that there is no basis for revocation of the donation.

However, the general law on donations does not prohibit the imposition of conditions on a donation so long as the conditions are not illegal or impossible. 11

In regard to donations of open spaces, P.D. 1216 itself requires among other things that the recreational areas to be donated be based, as aforementioned, on a percentage (3.5% 7%, or 9%) of the total area of the subdivision depending on whether the division is low —, medium —, or high-density. It further declares that such open space devoted to parks, playgrounds and recreational areas are non-alienable public land and non-buildable. However, there is no prohibition in either P.D. 957 or P.D. 1216 against imposing conditions on such donation.

We hold that any condition may be imposed in the donation, so long as the same is not contrary to law, morals, good customs, public order or public policy. The contention of petitioners that the donation should be unconditional because it is mandatory has no basis in law. P.D. 1216 does not provide that the donation the open space for parks and playgrounds should be unconditional. To rule that it should be so is tantamount to unlawfully expanding, the provisions of the decree. 12

In the case at bar, one of the conditions imposed in the Amended Deed of Donation is that the donee should build a sports complex on the donated land. Since P.D. 1216 clearly requires that the 3.5% to 9% of the gross area alloted for parks and playgrounds is "non-buildable", then the obvious question arises whether or not such condition was validly imposed and is binding on the donee. It is clear that the "non-buildable" character applies only to the 3.5% to 9% area set by law. If there is any excess land over and above the 3.5% to 9% required by the decree, which is also used or allocated for parks, playgrounds and recreational purposes, it is obvious that such excess area is not covered by the non-buildability restriction. In the instant case, if there be an excess, then the donee would not be barred from developing and operating a sports complex thereon, and the condition in the amended deed would then be considered valid and binding.

To determine if the over 50,000 square meter area donated pursuant to the amended deed would yield an excess over the area required by the decree, it is necessary to determine under which density category the Timog Park subdivision falls.

If the subdivision falls under the low density or open market housing category, with 20 family lots or below per gross hectare, the developer will need to allot only 3.5% of gross area for parks and playgrounds, and since the donated land constitutes "more than five (5) percent of the total land area of the subdivision 13 there would therefore be an excess of over 1.5% of gross area which would not be non-buildable. Petitioners, on the other hand, alleged (and private respondent did not controvert) that the subdivision in question is a "medium-density or economic housing" subdivision based on the sizes of the family lots donated in the amended deed, 14 for which category the decree mandates that not less than 7% of gross area be set aside. Since the donated land constitutes only a little more than 5% of the gross area of the subdivision, which is less than the area required to be allocated for non-buildable open space, therefore there is no "excess land" to speak of. This then means that the condition to build a sports complex on the donated land is contrary to law and should be considered as not imposed.

Fourth Issue: Injunction vs. Construction of the DrugRehabilitation Center

Petitioners argue that the court cannot enjoin the construction of the drug rehabilitation center because the decision of the court came only after the construction of the center was completed and, based on jurisprudence, there can be no injunction unction of events that have already transpired. 15

Private respondent, on the other hand, counters that the operation of the center is a continuing act which would clearly cause injury to private respondent, its clients, and residents of the subdivision, and thus, a proper subject of injunction. 16 Equity should move in to granting of the injunctive relief if persistent repetition of the wrong is threatened.

In light of Sec. 31 of P.D. 957, as amended, declaring the open space for parks, playgrounds and recreational area as non-buildable, it appears indubitable that the construction and operation of a drug rehabilitation center on the land in question is a continuing violation of the law and thus should be enjoined.

Furthermore, the factual background of this case warrants that this Court rule against petitioners on this issue. We agree with and affirm the Court's finding that petitioners committed acts mocking the judicial system. 18

. . . When a writ of preliminary injunction was sought for by the appellee (private respondent) to enjoin the appellants [petitioners herein] from further continuing with the construction of the appellants the said center, the latter resisted and took refuge under the provisions of Presidential Decree No. 1818 (which prohibits writs of preliminary injunction) to continue with the construction of the building. Yet, the appellants also presented "City Council Resolution No. 227 which allegedly repealed the previous

Resolution authorizing the City Government to construct a Drug Rehabilitation Center on the donated property, by "changing the purpose and usage of the Drug Rehabilitation Center to Sports Development and Youth Center to make it conform to the Sports Complex Project therein". Under this Resolution No. 227, the appellants claimed that they have abandoned all plans for the construction of the Drug Rehabilitation Nonetheless, when judgment was finally rendered on February 15, 1989, the appellants were quick to state that they have not after all abandoned their plans for the center as they have in fact inaugurated the same April 15, 1989. In plain and simple terms, this act is a mockery of our judicial system perpetrated by the appellants. For them to argue that the court deal on their Drug Rehabilitation Center is not only preposterous but also ridiculous.

It is interesting to observe that under the appealed decision the appellants and their officers, employees and all other persons acting on their behalf were perpetually enjoined to cease and desist from constructing a Drug Rehabilitation Center on the donated property. Under Section 4 of Rule 39 of the Rules of Court, it is provided that:

Sec. 4 A judgment in an action for injunction shall not be stayed after its rendition and before an appeal is taken or during the tendency of an appeal .

Accordingly, a judgment restraining a party from doing a certain act is enforceable and shall remain in full force and effect appeal. In the case at bar, the cease and desist order therefore still stands. Appellants persistence and continued construction and, subsequent, operation of the Drug Rehabilitation Center violate the express terms of the writ of injunction lawfully issued by the lower court.

This Court finds no cogent reason to reverse the above mentioned findings of the respondent court. The allegation of the petitioners that the construction of the center was finished before the judgment of the trial court was rendered deserves scant consideration because it is self-serving and is completely unsupported by other evidence.

The fact remains that the trial court rendered judgment enjoining the construction of the drug rehabilitation center, revoking the donation and ordering the return of the donated land. In spite of such injunction, petitioners publicly flaunted their disregard thereof with the subsequent inauguration of the center on August 15, 1989. The operation o the center, after inauguration, is even more censurable

Fifth Issue: Revocation of a Mandatory Donation Because of Non-compliance With an Illegal Condition

The private respondent contends that the building of said drug rehabilitation center is violative of the Amended Deed of Donation. Therefore, under Article 764 of the New Civil Code and stipulation no. 8 of the amended deed, private respondent is empowered to revoke the donation when the donee has failed to comply with any of the conditions imposed in the deed.

We disagree. Article 1412 of the Civil Code which provides that:

If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the following rules shall be observed:

(1) When the fault is on the part of both contracting parties, neither may recover what he has given by virtue of the contract, or demand the performance of the other's undertaking;

comes into play here. Both petitioners and private respondents are in violation of P.D. 957 as amended, for donating and accepting a donation of open space less than that required by law, and for agreeing to build and operate a sports complex on the non-buildable open space so donated; and petitioners, for constructing a drug rehabilitation center on the same non-buildable area.

Moreover, since the condition to construct a sport complex on the donated land has previously been shown to be contrary to law, therefore, stipulation no. 8 of the amended deed cannot be implemented because (1) no validstipulation of the amended deed had been breached, and (2) it is highly improbable that the decree would have allowed the return of the donated land for open space under any circumstance, considering the non-alienable character of such open space, in the light of the second Whereas clause of P.D. 1216 which declares that . . . such open spaces, roads, alleys and sidewalks in residential subdivisions are for public use and are, therefore, beyond the commerce of men.

Further, as a matter of public policy, private respondent cannot be allowed to evade its statutory obligation to donate the required open space through the expediency of invoking petitioners breach of the aforesaid condition. It is a familiar principle that the courts will not aid either party to enforce an illegal contract, but will leave them both where they find them. Neither party can recover damages from the other arising from the act contrary to law, or plead the same as a cause of action or as a defense. Each must bear the consequences of his own acts. 19

There is therefore no legal basis whatsoever to revoke the donation of the subject open space and to return the donated land to private respondent. The donated land should remain with the donee as the law clearly intended such open spaces to be perpetually part of the public domain, non-alienable and permanently devoted to public use as such parks, playgrounds or recreation areas.

Removal/Demolition of Drug Rehabilitation Center

Inasmuch as the construction and operation of the drug rehabilitation center has been established to law, the said center should be removed or demolished. At this juncture, we hasten to add that this Court is and has always been four-square behind the government's efforts to eradicate the drug scourge in this country. But the end never justifies the means, and however laudable the purpose of the construction in question, this Court cannot and will not countenance an outright and continuing violation of the laws of the land, especially when committed by public officials.

In theory, the cost of such demolition, and the reimbursement of the public funds expended in the construction thereof, should be borne by the officials of the City Angeles who ordered and directed such construction. This Court has time and again ruled that public officials are not immune from damages in their personal capacities arising from acts done in bad faith. Otherwise stated, a public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. 20 In the instant case, the public officials concerned deliberately violated the law and persisted in their violations, going so far as attempting to deceive the courts by their pretended change of purpose and usage for the enter, and "making a mockery of the judicial system". Indisputably, said public officials acted beyond the scope of their authority and jurisdiction and with evident bad faith. However, as noted by the trial court21, the petitioners mayor and members of the Sangguniang Panlungsod of Angeles City were sued only in theirofficial capacities, hence, they could not be held personally liable without first giving them their day in court. Prevailing jurisprudence 22 holding that public officials are personally liable for damages arising from illegal acts done in bad faith are premised on said officials having been sued both in their official and personal capacities.

After due consideration of the circumstances, we believe that the fairest and most equitable solution is to have the City of Angeles, donee of the subject open space and, ostensibly, the main beneficiary of the

construction and operation of the proposed drug rehabilitation center, undertake the demolition and removal of said center, and if feasible, recover the cost thereof from the city officials concerned.

WHEREFORE, the assailed Decision of the Court of appeals hereby MODIFIED as follows:

(1) Petitioners are hereby ENJOINED perpetually from operating the drug rehabilitation center or any other such facility on the donated open space.

(2) Petitioner City of Angeles is ORDERED to undertake and removal of said drug rehabilitation center within a period of three (3) months from finality of this Decision, and thereafter, to devote public use as a park, playground or other recreational use.

(3) The Amended Deed of Donation dated November 26, 1984 is hereby declared valid and subsisting, except that the stipulations or conditions therein concerning the construction of the Sports Center or Complex are hereby declared void and as if not imposed, and therefore of no force and effect.

No Costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

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.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 127066 March 11, 1997

REYNALDO O. MALONZO, petitioner, vs.THE HONORABLE COMMISSION ON ELECTIONS and THE LIGA NG MGA BARANGAY (Caloocan Chapter) and ALEX L. DAVID, CONRADO G. CRUZ, TRINIDAD REPUNO, GLORIA M. CRUZ, MIRALI M. DURR, FERMIN JIMENEZ, AURELIO BILUAN, ROGELIO SARAZA, HELENE VALBUENA, and HIGINO RULLEPA, respondents.

 

TORRES, JR., J.:

The Court is called upon to strike down Resolution 96-026, 1 dated November 18, 1996, of the respondent Commission on Elections (COMELEC) calling for an Election for the Recall of the Petitioner Reynaldo O. Malonzo, the incumbent Mayor of Caloocan City.

Petitioner was duly elected as Mayor in the elections held on May 8, 1995, winning over former Mayor Macario Asistio, Jr. Barely one year into his term, petitioner's office as Mayor was put to serious question when on July 7, 1996, 1,057 Punong Barangays and Sangguniang Barangay members and Sangguniang Kabataan chairmen, constituting a majority of the members of the Preparatory Recall Assembly of the City of Caloocan, met, and upon deliberation and election, voted for the approval of Preparatory Recall Assembly Resolution No. 01-96, expressing loss of confidence in Mayor Malonzo, and calling for the initiation of recall proceedings against him.

Together with relevant documents, PRA Resolution No. 01-96 was filed with the COMELEC for appropriate action. In response, Mayor Malonzo filed a Petition with the respondent Commission alleging, principally, that the recall process was deficient in form and substance, and therefore, illegally initiated. The COMELEC found the petition devoid of merit and declared the recall proceedings to be in order. The COMELEC's Resolution on the petition states pertinently:

WHEREFORE, in view of the foregoing, the Commission En Banc hereby RESOLVES to DISMISS the Petition. We approve and give DUE COURSE to PRA Resolution No. 01-96 entitled RESOLUTION TO INITIATE RECALL OF REYNALDO O. MALONZO AS MAYOR OF KALOOCAN CITY FOR LOSS OF CONFIDENCE. Accordingly and conformably with Section 71 R.A. 7160, the Commission SETS the date of the Election on Recall on December 14, 1996. We shall, by separate resolution, issue a calendar of activities involved in said exercise.

SO ORDERED. 2

On November 28, 1996, Mayor Malonzo came to us on a "Petition for Certiorari With Prayer For Temporary Restraining Order and Application for Writ of Preliminary Injunction", assailing the COMELEC's resolution as having been issued with grave abuse of discretion. The Petition, in the main, raises the issue of the validity of the institution and proceedings of the recall, putting to fore the propriety of the service of notices to the members of the Preparatory Recall Assembly, and the proceedings held, resulting in the issuance of the questioned Resolution.

Due to the importance of the matters in issue, and the proximity of the Recall Election date declared by the COMELEC, the Court, on November 29, 1996, issued a Resolution 3 ordering the respondent COMELEC to cease and desist from proceeding with the recall election projected on December 14, 1996, and directing the respondents to file their respective Comments.

Private respondents Liga ng mga Barangay (Caloocan Chapter), Alex L. David, Conrado G. Cruz, Trinidad Repuno, Gloria M. Cruz, Mirali M. Durr, Fermin Jimenez, Aurelio Biluan, Rogelio Saraza, Helene Valbuena and Higino Rullepa, filed their Comment 4 on December 6, 1996, alleging that all the

requirements for the holding of a recall election were duly complied with and that the petition is therefore without basis. On the other hand, the Office of the Solicitor General filed a Manifestation in lieu of Comment 5 on February 7, 1997, with the surprising submission that the COMELEC was amiss in its duties as enforcer of election laws.

According to the Solicitor General, the veracity of notices sent to 42 members of the Preparatory Recall Assembly were not directly passed upon by the COMELEC before it issued the questioned Resolution. It thus submits that the propriety of notices sent to said PRA members must first be determined by the COMELEC, after giving private respondents the chance to prove the same, otherwise, a discussion of the other issues in the present petition would be premature.

At this juncture, the Court finds that there is no need to refer the matter of the veracity of the questioned notices sent to certain members of the Preparatory Recall Assembly back to the COMELEC, for the reason that the COMELEC has already conducted an investigation into the same, and has found the proceedings instituting the recall to be in accord with law.

The Solicitor General's observation that the issue of veracity of the notices was not directly passed upon by the COMELEC is incorrect. On the contrary, the matter of validity of notices to the members of the Preparatory Recall Assembly was sufficiently considered by the respondent Commission, as in response to petitioner's request for a technical examination of the recall documents, the COMELEC directed its Election Records and Statistics Department (ERSD) to resolve the matter of notices sent to the Preparatory Recall Assembly members. The ERSD in turn performed its task and reported its findings to the COMELEC. The following excerpts from Resolution UND 96-026 of the COMELEC reflect the results of the ERSD's investigation, and the resulting action of the COMELEC:

The ERSD Report gave the following information:

Three (3) lists of elected Barangay officials were used as reference, namely: COMELEC list; DILG list and Caloocan City list.

According to the COMELEC listing, of the 188 barangays in Kalookan City, there should have been 1,692 members of the PRA. However, one barangay, Barangay 94, did not elect an SK Chairman, thus, there are of record, 1,691 elected barangay officials of Kalookan City, broken down as follows:

Punong Barangay — 188Barangay Kagawads — 1,316SK Chairmen — 187(One Barangay, Barangay94 did not elect itsSK Chairman).

The DILG registry is incomplete, showing only a listing of 1,390 barangay officials. The Kalookan City Talaan ng mga Barangay tallies with the COMELEC List. From the records, the following data is found: Of the 1,691 barangay officials, forty (40) had resigned. In the stead of twenty-eight (28) resignees, replacements were appointed. Twelve (12) positions however, remained vacant, there being no successors named therein. Twenty-two (22) barangay officials are deceased. Twelve (12) vacancies caused by such death were filled up by appointing replacements. Ten (10) vacant positions were however not filled up. There being twenty-two (22) unfilled posts, the total number of Barangay officials of Kalookan City at the time of the constitution of the Preparatory Recall Assembly was initiated is 1,669.

ERSD reported that there were a total of 1,927 notices sent, some members being served two or three notices. The Notices were sent in three modes; Personal, registered mail and by courier and they were in the name of the PRA member, and addressed at his residence or office of record.

In its initial report, the Department stated that six persons listed in the COMELEC record as barangay officials were not duly notified. These were: Jose de Chavez, listed as Barangay kagawad of Barangay; 6; Enrico Marasigan, listed as Barangay kagawad of Barangay 65; Pablo Musngi, listed as Barangay kagawad of Barangay 119; Rolando Ang, listed as Barangay kagawad of Barangay 109; and Pilar Pilares, Barangay Kagawad of Barangay 162 and Teresita Calayo, listed as kagawad of Barangay 182. Respondents explained the absence of notice to these persons thus:

1. Jose de Chavez has been removed from office as Barangay kagawad of Barangay 6 by virtue of Resolution No. 95-011 passed on July 16, 1995, and has been replaced by Corazon Obusan by virtue of Resolution No. 95-016 passed on August 1995, both promulgated by the Barangay Council of said barangay. In view of the fact that it is Corazon Obusan who is the recognized Barangay kagawad of the aforementioned barangay, as it appears in the official roster of the Department of Interior and Local Government (DILG) the notice of the July 7, 1996 PRA session was duly served on her and not on Mr. de Chavez.

2. Enrico Marasigan has resigned as Barangay kagawad of Barangay 65 as evidenced by his resignation letter dated March 24, 1995. He was replaced by Ronio de la Cruz, by virtue of a Resolution passed by the Barangay Council of Barangay 65 dated August 10, 1995. Accordingly, the notice of the July 7, 1996 PRA session was duly served on Mr. de la Cruz and not on Mr. Marasigan.

3. Pablo Musngi ceased to be a Barangay kagawad of Barangay 119 by reason of his death on April 12, 1996. He has been replaced by Sylvia Saberola on whom notice of the July 7, 1996 PRA session has been duly served.

4. Notices, both by personal delivery and by registered mail, were served on Mr. Rolando Ang at his official address at Barangay 109 Zone 10 East Grace Park, Caloocan City. The returns of the said service of notice, however, disclosed that he can no longer be located in the said address. He has, however, not informed the DILG of any change in his official address.

5. Pilar Pilares had been served notice by personal delivery but refused to sign acknowledgment receipt. She has likewise been served notice by registered mail as evidenced by the receipt in her behalf by a certain Ricardo Pilares III. (Respondents' Comment, dated October 14, 1996.

As to Teresita Calayo, respondent defends lack of notice to her, thus:

Teresita Calayo is not a duly elected kagawad of Barangay 182, Zone 16.

Per certification issued by the Board of Election Tellers, Ms. Calayo did not win in the May 1994 Barangay Election. Records would show that it

should be Kagawad Fermin Quintos who should be recognized as legitimate barangay kagawad of the said barangay having placed no. 7 in the election and not Ms. Calayo who appears to be a loser/9th place. There appears to be an apparent oversight in placing the name of Calayo in the subject PRA Resolution for signature, wherein it shows that both the names of Fermin Quintos and Teresita Calayo are included. (Respondents' Compliance dated November 13, 1996, p. 6).

In the ERSD's final and complete report, two (2) additional names were reflected as not having been served notices and these were Line Ramos and Teodulfo Abenoja, listed as kagawads of Barangay 174.

Commenting on this report, respondents stated:

1. As regards Tomas Daep and Teodulfo Abenoja (not Agenoja);.

Notice by registered mail was served on, and acknowledged by Tomas Daep, who personally signed the return card.

There was actually an error committed by the ERSD when it concluded that Tomas Daep has already resigned and was replaced by Ernesto Taupa. Official records would show that Tomas Daep and Ernesto Taupa are still both presently holding the position of Kagawad of Barangay 174 Zone 15.

Ernesto Taupa was officially appointed to the position vacated by Teodulfo Abenoja by virtue of the latter's resignation on 15 March 1996. Teodulfo Abenoja, on the other hand, was appointed to the position vacated by a Line Ramos and Teodulfo Abenoja — they, having resigned and, the latter, having been already replaced by Ernesto Taupa.

Ernesto Taupa on the other, as correctly determined by the ERSD, was validly served with the notice of the PRA session two (2) days before the scheduled PRA meeting.

Respondents' submission, being substantiated by documents. and uncontroverted by Petitioner are hereby accepted as meritorious.

In addition to the aforenamed, three persons, Pablo de Castro, Ruben Ballega, and Jesus Tan claiming to be the Barangay captains of Barangay 116, Barangay 148 and Barangay 156, respectively, and therefore members of the Preparatory Recall Assembly, came before the Commission and manifested that they were not duly notified about the PRA session.

The records in custody of the Commission, however, revealed that there was no truth to their allegations.

Pablo de Castro was served notice by registered mail on July 1, 1996, and this he received on July 3, 1996, as shown in the return card duly signed in acknowledgment. The same notice was served on him by courier (LBC) on July 5, 1996.

Ruben Ballega was notified by personal service on July 1, 1996, the receipt of which was duly acknowledged and by registered mail on July 2, 1996.

Jesus Tan Sr. was served notice personally and by registered mail. The personal service was completed on July 1, 1996, as shown by the receipt signed by his daughter, one

Analiza T. Asque. The same notice was sent him by registered mail, received by the same daughter on July 2, 1996.

The Commission however regards the sending of notice one thing, and the completion of service thereof another, for indeed, the requirement of notice can only be fully satisfied, if there was not only service, but also completion of service thereof. Thus, we were obliged to inquire more closely into the records and we found:

Personal services were acknowledged by receipts signed, if not by the addressee himself, then, as indicated thereon, by his or her spouse, nearest relative or a person of sufficient discretion in the member 's residence or office. Service by registered mail was evinced by the return card duly signed by the addressee or by persons acting for him. There were instances when notices were served but were refused, this fact noted in the acknowledgment receipt by the server and his witnesses. The circumstances being thus, we hold that there was complete service of the notices as contemplated in Section 8, Rule 13 of the Rules of Court which provides;

Sec. 8 Completeness of Service — Personal service is complete upon delivery. Service by ordinary mail is complete upon the expiration of five (5) days after mailing, unless the court otherwise provides; Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time.

That it was Alex David, President of the LIGA ng mga Barangay who sent the notices is of no moment. We had earlier determined that as member of the PRA, he can legally exercise the prerogatives attached to his membership in the Preparatory Recall Assembly, sending notices to the other members of its scheduled convening.

It is evident from the foregoing and, therefore, the Commission so holds that the requirements of notice had been fully complied with. 6

Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of the same is therefore a function of the COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual findings of the COMELEC, based on its own assessments and duly supported by gathered evidence, are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of the same.

Moreover, to order the COMELEC to repeat the process of determining the notices' propriety would be sanctioning a recycling of administrative functions, entailing added cost and waste of effort.

Petitioner likewise attacks the COMELEC's ruling on the validity of the proceedings held by the Preparatory Recall Assembly, in that it allegedly ruled that the LIGA ng mga Barangay is authorized to initiate the recall and convene the Preparatory Recall Assembly. Petitioner likewise averred that the session held, and the adoption of the recall resolution, by the recall assembly were tainted with irregularities, violence, graft and corruption.

The pertinent provisions of law, as regards the initiation of the recall process, are Sections 69 and 70 of R.A. 7160:

Sec. 69. By whom Exercised. — The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs.

Sec. 70. Initiation of the Recall Process. —

(a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to which the local elective official subject to such recall belongs.

(b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be composed of the following:

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(2) City level. — All punong barangay and sangguniang barangay members in the city;

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(c) A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceeding against any elective official in the local government unit concerned. Recall of provincial, city, or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose.

(d) Recall of any elective provincial, city, municipal, or barangay official may also be validly initiated upon petition of at least 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.

(1) A written petition for recall duly signed before the election registrar or his representative, and in the presence of a representative of the petitioner and a representative of the official sought to be recalled, and in a public place in the province, city, municipality, or barangay, as the case may be, shall be filed with the COMELEC through its office in the local government unit concerned. The COMELEC or its duly authorized representative shall cause the publication of the petition in a public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of voters.

(2) Upon the lapse of the aforesaid period, the COMELEC or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled.

Petitioner's insistence, that the initiation of the recall proceedings was infirm since it was convened by the Liga ng mga Barangays, is misplaced. Petitioner observes that "respondent Liga is an organization of all barangays. It is not an organization of barangay captains and kagawads. The barangays are represented in the Liga by the barangay captains as provided under Section 492 of the Local Government Code. It also provides that the Kagawad may represent the barangay in the absence of the barangay chairman." 7 The Liga ng mga Barangay is undoubtedly an entity distinct from the Preparatory Recall Assembly. It just so happens that the personalities representing the barangays in the Liga are the very members of the Preparatory Recall Assembly, the majority of whom met on July 7, 1996, and voted in favor of the resolution calling for the recall of Mayor Malonzo, after deliberation reported in the record, in accordance with the existing law. Thus, the Punong Barangays and Sangguniang Barangay members convened and voted as members of the Preparatory Recall Assembly of the City of Caloocan, and not as members of the Liga ng mga Barangay. The recall proceedings, therefore, cannot be denied merit on this ground.

Any doubt as to the propriety of the proceedings held during the recall assembly should be laid to rest. As the respondent COMELEC pertinently observes:

The Minutes of the session of the Preparatory Assembly indicated that there was a session held. Attendees constitute the majority of all the members of the Preparatory Assembly, as we shall later on establish. Rules of procedure, simple they may be were formulated. Deliberations were conducted on the main issue, which was that of petitioner's recall. The members were given the opportunity to articulate on their resolve about the matter. More importantly, their sentiments were expressed through their votes signified by their signatures and thumbmarks affixed to the Resolution. No proof was adduced by Petitioner to substantiate his claim that the signatures appearing thereon represented a cause other than that of adopting the resolution. The law on recall did not prescribe an elaborate proceeding. Neither did it demand a specific procedure. What is fundamental is compliance with the provision that there should be a session called for the purpose of initiating recall proceedings, attended by a majority of all the members of the preparatory recall assembly, in a public place and that the resolution resulting from such assembly be adopted by a majority of all the PRA members. 8

The charges of graft and corruption, violence and irregularities, before and during the session of the preparatory recall assembly are largely uncorroborated, and cannot override the substantiated findings of the respondent COMELEC.

In cases filed before administrative and quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 9

Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 10 It means such evidence which affords a substantial basis from which the fact in issue can be reasonably inferred. 11 To overturn the presumption of validity of performance of official duty, more than a mere scintilla of proof is needed, otherwise, one disgruntled fellow can destroy the foundations laid by the overwhelming majority, and this is not the scenario envisioned by our democratic system of government.

In sum, we are persuaded strongly by the principle that the findings of fact of administrative bodies charged with their specific field of expertise, are afforded great weight by the courts, and in the absence of substantial showing that such findings are made from an erroneous estimation of the evidence presented, they are conclusive, and in the interest of stability of the governmental structure, should not be disturbed.

ACCORDINGLY, the Court hereby RESOLVED to DISMISS the present petition, for lack of merit. The decision of the respondent Commission on Elections to GIVE DUE COURSE to PRA Resolution No. 01-96 is hereby AFFIRMED. The Commission on Elections is hereby ORDERED to set the date of the Election on Recall in the city of Caloocan, which date shall not be later than thirty days after receipt of notice of this Resolution, which is immediately executory.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 102549 August 10, 1992

EDWIN B. JAVELLANA, petitioner, vs.DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND LUIS T. SANTOS, SECRETARY, respondents.

Reyes, Lozada and Sabado for petitioner.

 

GRIÑO-AQUINO, J.:

This petition for review on certiorari involves the right of a public official to engage in the practice of his profession while employed in the Government.

Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros Occidental. On October 5, 1989, City Engineer Ernesto C. Divinagracia filed Administrative Case No. C-10-90 against Javellana for: (1) violation of Department of Local Government (DLG) Memorandum Circular No. 80-38 dated June 10, 1980 in relation to DLG Memorandum Circular No. 74-58 and of Section 7, paragraph b, No. 2 of Republic Act No. 6713, otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees," and (2) for oppression, misconduct and abuse of authority.

Divinagracia's complaint alleged that Javellana, an incumbent member of the City Council or Sanggunian Panglungsod of Bago City, and a lawyer by profession, has continuously engaged in the practice of law without securing authority for that purpose from the Regional Director, Department of Local Government, as required by DLG Memorandum Circular No. 80-38 in relation to DLG Memorandum Circular No. 74-58 of the same department; that on July 8, 1989, Javellana, as counsel for Antonio Javiero and Rolando Catapang, filed a case against City Engineer Ernesto C. Divinagracia of Bago City for "Illegal Dismissal and Reinstatement with Damages" putting him in public ridicule; that Javellana also appeared as counsel in several criminal and civil cases in the city, without prior authority of the DLG Regional Director, in violation of DLG Memorandum Circular No. 80-38 which provides:

MEMORANDUM CIRCULAR NO. 80-38

TO ALL: PROVINCIAL GOVERNORS, CITY AND MUNICIPALITY MAYORS, KLGCD REGIONAL DIRECTORS AND ALL CONCERNED

SUBJECT: AMENDING MEMORANDUM CIRCULAR NO. 80-18 ON SANGGUNIAN SESSIONS,PER DIEMS, ALLOWANCES, STAFFING AND OTHER RELATED MATTERS

In view of the issuance or Circular No. 5-A by the Joint Commission on Local Government Personnel Administration which affects certain provisions of MC 80-18, there is a need to amend said Memorandum Circular to substantially conform to the pertinent provisions of Circular No. 9-A.

xxx xxx xxx

C. Practice of Profession

The Secretary (now Minister) of Justice in an Opinion No. 46 Series of 1973 stated inter alia that "members of local legislative bodies, other than the provincial governors or the mayors, do not keep regular office hours." "They merely attend meetings or sessions of the provincial board or the city or municipal council" and that provincial board members are not even required "to have an office in the provincial building." Consequently, they are not therefore to required to report daily as other regular government employees do, except when they are delegated to perform certain administrative functions in the interest of public service by the Governor or Mayor as the case may be. For this reason, they may, therefore, be allowed to practice their professions provided that in so doing an authority . . . first be secured from the Regional Directors pursuant to Memorandum Circular No. 74-58, provided, however, that no government personnel, property,

equipment or supplies shall be utilized in the practice of their professions. While being authorized to practice their professions, they should as much as possible attend regularly any and all sessions, which are not very often, of their Sanggunians for which they were elected as members by their constituents except in very extreme cases, e.g., doctors who are called upon to save a life. For this purpose it is desired that they always keep a calendar of the dates of the sessions, regular or special of their Sanggunians so that conflicts of attending court cases in the case of lawyers and Sanggunian sessions can be avoided.

As to members of the bar the authority given for them to practice their profession shall always be subject to the restrictions provided for in Section 6 of Republic Act 5185. In all cases, the practice of any profession should be favorably recommended by the Sanggunian concerned as a body and by the provincial governors, city or municipal mayors, as the case may be. (Emphasis ours, pp. 28-30,Rollo.)

On August 13, 1990, a formal hearing of the complaint was held in Iloilo City in which the complainant, Engineer Divinagracia, and the respondent, Councilor Javellana, presented their respective evidence.

Meanwhile, on September 10, 1990, Javellana requested the DLG for a permit to continue his practice of law for the reasons stated in his letter-request. On the same date, Secretary Santos replied as follows:

1st IndorsementSeptember 10, 1990

Respectfully returned to Councilor Erwin B. Javellana, Bago City, his within letter dated September 10, 1990, requesting for a permit to continue his practice of law for reasons therein stated, with this information that, as represented and consistent with law, we interpose no objection thereto, provided that such practice will not conflict or tend to conflict with his official functions.

On September 21, 1991, Secretary Luis T. Santos issued Memorandum Circular No. 90-81 setting forth guidelines for the practice of professions by local elective officials as follows:

TO: All Provincial Governors, City and Municipal Mayors, Regional Directors and All Concerned.

SUBJECT: Practice of Profession and Private Employment of Local Elective Officials

Section 7 of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), states, in part, that "In addition to acts and omission of public officials . . . now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public officials . . . and are hereby declared to be unlawful: . . . (b) Public Officials . . . during their incumbency shall not: (1) . . . accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; (2) Engage 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: . . .

xxx xxx xxx

Under Memorandum Circular No. 17 of the Office of the President dated September 4, 1986, the authority to grant any permission, to accept private employment in any capacity and to exercise profession, to any government official shall be granted by the head of the Ministry (Department) or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides,in part, that:

No officer shall engage directly in any . . . vocation or profession . . . without a written permission from the head of the Department: Provided, that this prohibition will be absolute in the case of those officers . . . 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, the time so devoted outside of office should be fixed by the Chief of the agency to the end that it will not impair in anyway the efficiency of the officer or employee . . . subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission.

Conformably with the foregoing, the following guidelines are to be observed in the grant of permission to the practice of profession and to the acceptance of private employment of local elective officials, to wit:

1) The permission shall be granted by the Secretary of Local Government;

2) Provincial Governors, City and Municipal Mayors whose duties and responsibilities require that their entire time be at the disposal of the government in conformity with Sections 141, 171 and 203 of the Local Government Code (BP 337), are prohibited to engage in the practice of their profession and to accept private employment during their incumbency:

3) Other local elective officials may be allowed to practice their profession or engage in private employment on a limited basis at the discretion of the Secretary of Local Government, subject to existing laws and to the following conditions:

a) That the time so devoted outside of office hours should be fixed by the local chief executive concerned to the end that it will not impair in any way the efficiency of the officials concerned;

b) That no government time, personnel, funds or supplies shall be utilized in the pursuit of one's profession or private employment;

c) That no conflict of interests between the practice of profession or engagement in private employment and the official duties of the concerned official shall arise thereby;

d) Such other conditions that the Secretary deems necessary to impose on each particular case, in the

interest of public service. (Emphasis supplied, pp. 31-32, Rollo.)

On March 25, 1991, Javellana filed a Motion to Dismiss the administrative case against him on the ground mainly that DLG Memorandum Circulars Nos. 80-38 and 90-81 are unconstitutional because the Supreme Court has the sole and exclusive authority to regulate the practice of law.

In an order dated May 2, 1991, Javellana's motion to dismiss was denied by the public respondents. His motion for reconsideration was likewise denied on June 20, 1991.

Five months later or on October 10, 1991, the Local Government Code of 1991 (RA 7160) was signed into law, Section 90 of which provides:

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. (Emphasis ours.)

Administrative Case No. C-10-90 was again set for hearing on November 26, 1991. Javellana thereupon filed this petition for certiorari praying that DLG Memorandum Circulars Nos. 80-38 and 90-81 and Section 90 of the new Local Government Code (RA 7160) be declared unconstitutional and null void because:

(1) they violate Article VIII, Section 5 of the 1987 Constitution, which provides:

Sec. 5. The Supreme Court shall have the following powers:

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(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the

Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts andquasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

(2) They constitute class legislation, being discriminatory against the legal and medical professions for only sanggunian members who are lawyers and doctors are restricted in the exercise of their profession while dentists, engineers, architects, teachers, opticians, morticians and others are not so restricted (RA 7160, Sec. 90 [b-1]).

In due time, the Solicitor General filed his Comment on the petition and the petitioner submitted a Reply. After deliberating on the pleadings of the parties, the Court resolved to dismiss the petition for lack of merit.

As a matter of policy, this Court accords great respect to the decisions and/or actions of administrative authorities not only because of the doctrine of separation of powers but also for their presumed knowledgeability and expertise in the enforcement of laws and regulations entrusted to their jurisdiction (Santiago vs. Deputy Executive Secretary, 192 SCRA 199, citing Cuerdo vs. COA, 166 SCRA 657). With respect to the present case, we find no grave abuse of discretion on the part of the respondent, Department of Interior and Local Government (DILG), in issuing the questioned DLG Circulars Nos. 80-30 and 90-81 and in denying petitioner's motion to dismiss the administrative charge against him.

In the first place, complaints against public officers and employees relating or incidental to the performance of their duties are necessarily impressed with public interest for by express constitutional mandate, a public office is a public trust. The complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint against the City Government of Bago City, their real employer, of which petitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia would actually be a judgment against the City Government. By serving as counsel for the complaining employees and assisting them to prosecute their claims against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government.

Petitioner's contention that Section 90 of the Local Government Code of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII, Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches upon the Supreme Court's power and authority to prescribe rules on the practice of law. The Local Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it.

Section 90 of the Local Government Code does not discriminate against lawyers and doctors. It applies to all provincial and municipal officials in the professions or engaged in any occupation. Section 90 explicitly provides that sanggunian members "may practice their professions, engage in any occupation, or teach in schools expect during session hours." If there are some prohibitions that apply particularly to lawyers, it is because of all the professions, the practice of law is more likely than others to relate to, or affect, the area of public service.

WHEREFORE, the petition is DENIED for lack of merit. Costs against the petitioner.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. L-114783 December 8, 1994

ROBERT V. TOBIAS, RAMON M. GUZMAN, TERRY T. LIM, GREGORIO D. GABRIEL, and ROBERTO R. TOBIAS, JR. petitioners, vs.HON. CITY MAYOR BENJAMIN S. ABALOS, CITY TREASURER WILLIAM MARCELINO, and THE SANGGUNIANG PANLUNGSOD, all of the City of Mandaluyong, Metro Manila, respondents.

Estrella, Bautista & Associates for petitioners.

 

BIDIN, J.:

Invoking their rights as taxpayers and as residents of Mandaluyong, herein petitioners assail the constitutionality of Republic Act No. 7675, otherwise known as "An Act Converting the Municipality of Mandaluyong into a Highly Urbanized City to be known as the City of Mandaluyong."

Prior to the enactment of the assailed statute, the municipalities of Mandaluyong and San Juan belonged to only one legislative district. Hon. Ronaldo Zamora, the incumbent congressional representative of this legislative district, sponsored the bill which eventually became R.A. No. 7675. President Ramos signed R.A. No. 7675 into law on February 9, 1994.

Pursuant to the Local Government Code of 1991, a plebiscite was held on April 10, 1994. The people of Mandaluyong were asked whether they approved of the conversion of the Municipality of Mandaluyong into a highly urbanized city as provided under R.A. No. 7675. The turnout at the plebiscite was only 14.41% of the voting population. Nevertheless, 18,621 voted "yes" whereas 7,911 voted "no." By virtue of these results, R.A. No. 7675 was deemed ratified and in effect.

Petitioners now come before this Court, contending that R.A. No. 7675, specifically Article VIII, Section 49 thereof, is unconstitutional for being violative of three specific provisions of the Constitution.

Article VIII, Section 49 of R.A. No. 7675 provides:

As a highly-urbanized city, the City of Mandaluyong shall have its own legislative district with the first representative to be elected in the next national elections after the passage of this Act. The remainder of the former legislative district of San Juan/Mandaluyong shall become the new legislative district of San Juan with its first representative to be elected at the same election.

Petitioner's first objection to the aforequoted provision of R.A. No. 7675 is that it contravenes the "one subject-one bill" rule, as enunciated in Article VI, Section 26(1) of the Constitution, to wit:

Sec. 26(1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

Petitioners allege that the inclusion of the assailed Section 49 in the subject law resulted in the latter embracing two principal subjects, namely: (1) the conversion of Mandaluyong into a highly urbanized city; and (2) the division of the congressional district of San Juan/Mandaluyong into two separate districts.

Petitioners contend that the second aforestated subject is not germane to the subject matter of R.A. No. 7675 since the said law treats of the conversion of Mandaluyong into a highly urbanized city, as expressed in the title of the law. Therefore, since Section 49 treats of a subject distinct from that stated in the title of the law, the "one subject-one bill" rule has not been complied with.

Petitioners' second and third objections involve Article VI, Sections 5(1) and (4) of the Constitution, which provide, to wit:

Sec. 5(1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party list system of registered national, regional and sectoral parties or organizations.

Sec. 5(4). Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standard provided in this section.

Petitioners argue that the division of San Juan and Mandaluyong into separate congressional districts under Section 49 of the assailed law has resulted in an increase in the composition of the House of Representatives beyond that provided in Article VI, Sec. 5(1) of the Constitution. Furthermore, petitioners contend that said division was not made pursuant to any census showing that the subject municipalities have attained the minimum population requirements. And finally, petitioners assert that Section 49 has the effect of preempting the right of Congress to reapportion legislative districts pursuant to Sec. 5(4) as aforecited.

The contentions are devoid of merit.

Anent the first issue, we agree with the observation of the Solicitor General that the statutory conversion of Mandaluyong into a highly urbanized city with a population of not less than two hundred fifty thousand indubitably ordains compliance with the "one city-one representative" proviso in the Constitution:

. . . Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative" (Article VI, Section 5(3), Constitution).

Hence, it is in compliance with the aforestated constitutional mandate that the creation of a separate congressional district for the City of Mandaluyong is decreed under Article VIII, Section 49 of R.A. No. 7675.

Contrary to petitioners' assertion, the creation of a separate congressional district for Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highly urbanized city but is a natural and logical consequence of its conversion into a highly urbanized city. Verily, the title of R.A. No. 7675, "An Act Converting the Municipality of Mandaluyong Into a Highly Urbanized City of Mandaluyong" necessarily includes and contemplates the subject treated under Section 49 regarding the creation of a separate congressional district for Mandaluyong.

Moreover, a liberal construction of the "one title-one subject" rule has been invariably adopted by this court so as not to cripple or impede legislation. Thus, in Sumulong v. Comelec (73 Phil. 288 [1941]), we ruled that the constitutional requirement as now expressed in Article VI, Section 26(1) "should be given a practical rather than a technical construction. It should be sufficient compliance with such requirement if the title expresses the general subject and all the provisions are germane to that general subject."

The liberal construction of the "one title-one subject" rule had been further elucidated in Lidasan v. Comelec (21 SCRA 496 [1967]), to wit:

Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill and the public, of the nature, scope and consequences of the proposed law and its operation" (emphasis supplied).

Proceeding now to the other constitutional issues raised by petitioners to the effect that there is no mention in the assailed law of any census to show that Mandaluyong and San Juan had each attained the minimum requirement of 250,000 inhabitants to justify their separation into two legislative districts, the same does not suffice to strike down the validity of R.A. No. 7675. The said Act enjoys the presumption of having passed through the regular congressional processes, including due consideration by the members of Congress of the minimum requirements for the establishment of separate legislative districts. At any

rate, it is not required that all laws emanating from the legislature must contain all relevant data considered by Congress in the enactment of said laws.

As to the contention that the assailed law violates the present limit on the number of representatives as set forth in the Constitution, a reading of the applicable provision, Article VI, Section 5(1), as aforequoted, shows that the present limit of 250 members is not absolute. The Constitution clearly provides that the House of Representatives shall be composed of not more than 250 members, "unless otherwise provided by law." The inescapable import of the latter clause is that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Therefore, the increase in congressional representation mandated by R.A. No. 7675 is not unconstitutional.

Thus, in the absence of proof that Mandaluyong and San Juan do not qualify to have separate legislative districts, the assailed Section 49 of R.A.No. 7675 must be allowed to stand.

As to the contention that Section 49 of R.A. No. 7675 in effect preempts the right of Congress to reapportion legislative districts, the said argument borders on the absurd since petitioners overlook the glaring fact that it was Congress itself which drafted, deliberated upon and enacted the assailed law, including Section 49 thereof. Congress cannot possibly preempt itself on a right which pertains to itself.

Aside from the constitutional objections to R.A. No. 7675, petitioners present further arguments against the validity thereof.

Petitioners contend that the people of San Juan should have been made to participate in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district. The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong.

Similarly, petitioners' additional argument that the subject law has resulted in "gerrymandering," which is the practice of creating legislative districts to favor a particular candidate or party, is not worthy of credence. As correctly observed by the Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the assailed law, is the incumbent representative of the former San Juan/Mandaluyong district, having consistently won in both localities. By dividing San Juan/Mandaluyong, Rep. Zamora's constituency has in fact been diminished, which development could hardly be considered as favorable to him.

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

SO ORDERED.