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LOCGOV (PROF. RVG) - Digests (02.19.13)A-2014

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Garcia v Comelec

Facts: Enrique Garcia was elected governor of the province of Bataan. Some mayors,

vice-mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the

province constituted themselves into a Preparatory Recall Assembly to initiate the recall

election of Garcia. The mayor of Mariveles, Honorable Oscar, de los Reyes, and the mayor of

Dinalupihan, the Honorable Lucila Payumo, were chosen as Presiding Officer and Secretaryof the Assembly, respectively. Thereafter, the Vice-Mayor of Limay, the Honorable Ruben

Roque, was recognized and he moved that a resolution be passed for the recall of the

petitioner on the ground of "loss of confidence."The motion was "unanimously seconded."

Petitioners filed with the Comelec a petition to deny due course to the Resolution for failure

to comply with the requirements under the LGC. The comelec dismissed the petition and

scheduled the recall election. Petitioners filed a petition for certiorari and prohibition with

the SC on the ground that section 70 of R.A. 7160 allowing recall through the initiative of the

PRAC is unconstitutional because: (1) the people have the sole and exclusive right to decide

whether or not to initiate proceedings, and (2) it violated the right of elected local publicofficials belonging to the political minority to equal protection of law. They also argued that

the proceedings followed by the PRAC in passing Resolution No. I suffered from numerous

defects, the most fatal of which was the deliberate failure to send notices of the meeting to

sixty-five (65) members of the assembly.

Issue: WON all the members of the Preparatory Recall Assembly were notified of its meeting

Held: Yes

Ratio: The failure to give notice to all members of the assembly, especially to the members

known to be political allies of Garcia was admitted by both counsels of the respondents.

They did not deny that only those inclined to agree with the resolution of recall were notified

as a matter of political strategy and security. They justified these selective notices on the

ground that the law does not specifically mandate the giving of notice. We reject this

submission of the respondents. The due process clause of the Constitution requiring notice

as an element of fairness is inviolable and should always be considered as part and parcel of

every law in case of its silence. The need for notice to all the members of the assembly is

also imperative for these members represent the different sectors of the electorate of

Bataan. To the extent that they are not notified of the meeting of the assembly, to that

extent is the sovereign voice of the people they represent nullified. The resolution to recallshould articulate the majority will of the members of the assembly but the majority will can

be genuinely determined only after all the members of the assembly have been given a fair

opportunity to express the will of their constituents. Needless to stress, the requirement of

notice is indispensable in determining the collective wisdom of the members of the

Preparatory Recall Assembly. Its non-observance is fatal to the validity of the resolution to

recall petitioner Garcia as Governor of the province of Bataan.


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Issue: WON the alternative mode of allowing a preparatory recall assembly to initiate the

process of recall is unconstitutional

Held: No

Ratio: A reading of the legislative history of these recall provisions will reveal that the idea

of empowering a preparatory recall assembly to initiate the recall from office of local

elective officials, originated from the House of Representatives and not the Senate. The

legislative records reveal there were two (2) principal reasons why this alternative mode of

initiating the recall process thru an assembly was adopted, viz: (a) to diminish the difficulty

of initiating recall thru the direct action of the people; and (b) to cut down on its expenses.

Our lawmakers took note of the undesirable fact that the mechanism initiating recall by

direct action of the electorate was utilized only once in the City of Angeles, Pampanga, but

even this lone attempt to recall the city mayor failed. Former Congressman Wilfredo

Cainglet explained that this initiatory process by direct action of the people was toocumbersome, too expensive and almost impossible to implement. Consequently, our

legislators added in the a second mode of initiating the recall of local officials thru a

preparatory recall assembly. They brushed aside the argument that this second mode may

cause instability in the local government units due to its imagined ease.

Petitioners cannot point to any specific provision of the Constitution that will sustain this

submission. To be sure, there is nothing in the Constitution that will remotely suggest that

the people have the "sole and exclusive right to decide on whether to initiate a recall

proceeding." The Constitution did not provide for any mode, let alone a single mode, of

initiating recall elections. Neither did it prohibit the adoption of multiple modes of initiatingrecall elections. The mandate given by section 3 of Article X of the Constitution is for

Congress to "enact a local government code which shall provide for a more responsive and

accountable local government structure through a system of decentralization with effective

mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate,

Congress was clearly given the power to choose the effective mechanisms of recall as its

discernment dictates. The power given was to select which among the means and methods

of initiating recall elections are effective to carry out the judgment of the electorate.

Congress was not straightjacketed to one particular mechanism of initiating recall elections.

What the Constitution simply required is that the mechanisms of recall, whether one or

many, to be chosen by Congress should be effective. Using its constitutionally granted

discretion, Congress deemed it wise to enact an alternative mode of initiating recall

elections to supplement the former mode of initiation by direct action of the people.

Congress has made its choice as called for by the Constitution and it is not the prerogative

of this Court to supplant this judgment. The choice may be erroneous but even then, the

remedy against a bad law is to seek its amendment or repeal by the legislative. By the

principle of separation of powers, it is the legislative that determines the necessity,

adequacy, wisdom and expediency of any law.


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Petitioners also positive thesis that in passing Resolution 1, the Bataan Preparatory Recall

Assembly did not only initiate the process of recall but had de facto recalled Garcia from

office, a power reserved to the people alone. Again, the contention cannot command our

concurrence. Petitioners have misconstrued the nature of the initiatory process of recall by

the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the

people. This is a misimpression for initiation by the PRAC is also initiation by the people,

albeit done indirectly through their representatives. It is not constitutionally impermissible

for the people to act through their elected representatives. Nothing less than the paramount

task of drafting our Constitution is delegated by the people to their representatives, elected

either to act as a constitutional convention or as a congressional constituent assembly. The

initiation of a recall process is a lesser act and there is no rhyme or reason why it cannot be

entrusted to and exercised by the elected representatives of the people. More far out is

petitioners' stance that a PRA resolution of recall is the recall itself. It cannot be seriously

doubted that a PRA resolution of recall merely, starts the process. It is part of the process

but is not the whole process. This ought to be self evident for a PRA resolution of recall that

is not submitted to the COMELEC for validation will not recall its subject official. Likewise, a

PRA resolution of recall that is rejected by the people in the election called for the purpose

bears no effect whatsoever. The initiatory resolution merely sets the stage for the officialconcerned to appear before the tribunal of the people so he can justify why he should be

allowed to continue in office. Before the people render their sovereign judgment, the official

concerned remains in office but his right to continue in office is subject to question. This is

clear in section 72 of the Local Government Code which states that "the recall of an elective

local official shall be effective onlyupon the election and proclamation of a successor in the

person of the candidate receiving the highest number of votes cast during the election on

recall."

Issue: WON petitioners were denied equal protection of the laws

Held: No

Ratio: Petitioners' argument does not really assail the law but its possible abuse by the

members of the PRAC while exercising their right to initiate recall proceedings. More

specifically, the fear is expressed that the members of the PRAC may inject political color in

their decision as they may initiate recall proceedings only against their political opponents

especially those belonging to the minority. A careful reading of the law, however, will

ineluctably show that it does not give an asymmetrical treatment to locally elected officials

belonging to the political minority. First to be considered is the politically neutral

composition of the preparatory recall assembly, all mayors, vice-mayors and sangguniangmembers of the municipalities and component cities are made members of the preparatory

recall assembly at the provincial level. Its membership is not apportioned to political parties.

No significance is given to the political affiliation of its members. Secondly, the preparatory

recall assembly, at the provincial level includes all the elected officials in the province

concerned. Considering their number, the greater probability is that no one political party

can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a

locally elected public official is loss of confidence of the people. The members of the PRAC


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are in the PRAC not in representation of their political parties but as representatives of the

people. By necessary implication, loss of confidence cannot be premised on mere

differences in political party affiliation. Indeed, our Constitution encourages multi-party

system for the existence of opposition parties is indispensable to the growth and nurture of

democratic system. Clearly then, the law as crafted cannot be faulted for discriminating

against local officials belonging to the minority.

The fear that a preparatory recall assembly may be dominated by a political party and that it

may use its power to initiate the recall of officials of opposite political persuasions, especially

those belonging to the minority, is not a ground to strike down the law as unconstitutional.

To be sure, this argument has long been in disuse for there can be no escape from the

reality that all powers are susceptible of abuse. The mere possibility of abuse cannot,

however, infirm per se the grant of power to an individual or entity. To deny power simply

because it can be abused by the grantee is to render government powerless and no people

need an impotent government. There is no democratic government that can operate on the

basis of fear and distrust of its officials, especially those elected by the people themselves.

On the contrary, all our laws assume that officials, whether appointed or elected, will act in

good faith and will perform the duties of their office. Such presumption follows the solemnoath that they took after assumption of office, to faithfully execute all our laws.

There is only one ground for the recall of local government officials: loss of confidence. This

means that the people may petition or the Preparatory Recall Assembly may resolve to

recall any local elective officials without specifying any particular ground except loss of

confidence. There is no need for them to bring up any charge of abuse or corruption against

the local elective officials who are the subject of any recall petition.

Petitioners also contend that the resolution of the members of the preparatory recall

assembly subverted the will of the electorate of the province of Bataan who elected Garcia

with a majority of 12,500 votes. Again, the contention proceeds from the erroneous premise

that the resolution of recall is the recall itself. It refuses to recognize the reality that the

resolution of recall is a mere proposal to the electorate of Bataan to subject petitioner to a

new test of faith. The proposal will still be passed upon by the sovereign electorate of

Bataan. As this judgment has yet to be expressed, it is premature to conclude that the

sovereign will of the electorate of Bataan has been subverted. The electorate of Bataan may

or may not recall petitioner Garcia in an appropriate election. If the electorate re-elects

Garcia, then the proposal to recall him made by the preparatory recall assembly is rejected.

On the other hand, if the electorate does not re-elect Garcia, then he has lost the confidence

of the people which he once enjoyed. The judgment will write finis to the politicalcontroversy. For more than judgments of courts of law, the judgment of the tribunal of the

people is final for "sovereignty resides in the people and all government authority emanates

from them."

In sum, the petition at bench appears to champion the sovereignty of the people,

particularly their direct right to initiate and remove elective local officials thru recall


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elections. If the petition would succeed, the result will be a return to the previous system of

recall elections which Congress found should be improved. The alternative mode of initiating

recall proceedings thru a preparatory recall assembly is, however, an innovative attempt by

Congress to remove impediments to the effective exercise by the people of their sovereign

power to check the performance of their elected officials. The power to determine this mode

was specifically given to Congress and is not proscribed by the Constitution.

Quaison, Concurring: The intent is clear that the 1987 Constitution leaves it to Congress

to provide the recall mechanism without any pre-ordained restrictions. The broad powers of

Congress in pescribing the procedure for recall include the determination as to the number

of electors needed to initiate the recall, the method of voting of the electors, the time and

place of the voting and whether the process includes the election of the successor of the

recalled official. In the Local Government Code of 1991 (R.A. 7160), Congress adopted an

alternative procedure for initiating the recall and made it as a mere stage of the recall

process.

Congress also deigned it wise to give the electorate a chance to participate in the exercisetwice: first, in the initiation of the recall; and secondly, in the election of the person to

occupy the office subject of the recall. This is in contrast with the first recall statute in the

Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate were

denied the opportunity to vote for the retention of the official subject of the recall.

In a sense, the members of the PRA can be considered as constituting a segment of the

electorate because they are all registered voters of the province. If they constitute less than

one per cent of the voters in the province, that miniscule number goes to the policy, not the

validity of the law and the remedy to correct such a flaw is left with t he legislature, not with

the judiciary.

Vitug, Concurring: It may not be amiss, however, to caution against any idea of

omnipotence in wielding the "power of recall" conferred to the "Preparatory Recall

Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a

correlative duty to exercise it responsibly. When it, therefore, becomes all too evident that

there has been an abuse of that authority, appropriate judicial recourse to, and corrective

relief by, this Court will not be denied.

Davide Jr, Dissenting: In both B.P. Blg. 337 and the Local Government Code of 1991, our

Legislature fixed it at 25% of the total number of registered voters in the local governmentunit concerned during the election in which the local official sought to be recalled was

elected. It follows then that said power cannot be shared with any other group of persons or

officials. The reason why the initiation phase can and must be done only by the electorate is

not difficult to understand. If it can also be done by another body, such as the PRA in this

case, the exclusiveness or indivisibility of the power is necessarily impaired or negated. In

such a case, the electorate is by passed and the resulting recall petition or resolution can by

no means be an authentic, free, and voluntary act of the electorate, which characteristics


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are indicia of the exercise of a power. The power to initiate, being a component of the power

or recall, necessarily includes the power not to initiate. The power to initiate becomes

meaningless if another body is authorized to do it for the electorate. Worse, since the

second component of the power of recall, i.e., the recall election, does not come into play

without the recall petition, it follows that where the petition is not done through the initiative

of the electorate because the latter chooses not to exercise its power to recall or finds no

reason therefor, that election becomes, as to the electorate would in effect be compelled to

participate in a political exercise it neither called for nor decided to have.

Hence, the fullness of the power of recall precludes the delegation of the corresponding

authority to initiate it to any entity other than the electorate, especially where the

delegation unduly infringes upon and impairs such power as in this case.

I might add that since Congress decided to retain the 25% requirement for the traditional

method of initiating recall which is the method in full accord and perfect harmony with the

true essence of recall the provision for an alternative method, i.e., recall resolution by a

mere majority of the PRA, is subtly designed to negate, if not altogether defeat, the power of

the electorate and to substitute the will of a very small group for the will of the electorate.

PARAS VS COMELEC

Petitioner is the incumbent Punong Barangay of Pula, Cabanatuan City who won during thelast regular barangay election in 1994.

A petition, signed by 29.30% of the registered voters of the barangay, for his recall was filed.COMELEC approved the petition but deferred the recall election in view of petitionersopposition. COMELEC set anew the recall election on December 16, 1995.

To prevent the holding of the recall election, petitioner filed for injunction before RTCCabanatuan. The trial court dismissed the petition and required petitioner and his counsel to

explain why they should not be cited for contempt for misrepresenting that the barangayrecall election was without COMELEC approval.

In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled therecall election on January 13, 1996.

Petitioner: the scheduled January 13, 1996 recall election is now barred as the SangguniangKabataan (SK) election was set on the first Monday of May 1996; that SK election is a regularlocal election; hence no recall election can be had for barely four months separate the SKelection from the recall election.

WON petitioners contention correct- NO

SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of arecall election only once during his term of office for loss of confidence.(b) No recall shall take place withinone (1) year from the date of the officialsassumption to office or one (1) year immediately preceding a regular local election.

It is a rule in statutory construction that every part of the statute must be interpreted withreference to the context. The evident intent of Section 74 is to subject an elective localofficial to recall election once during his term of office. Paragraph (b) construed together


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with paragraph (a) merely designates the period when such elective local official may besubject of a recall election, that is, during the second year of his term of office.Subscribing to petitioners interpretation of the phrase regular local election to include theSK election will unduly circumscribe the novel provision of the LGC on recall, a mode ofremoval of public officers by initiation of the people before the end of his term. And if the SKelection which is set by R.A. No. 7808 to be held every three years from May 1996 were to

be deemed within the purview of the phrase regular local election, then no recall electioncan be conducted rendering inutile the recall provision of the LGC.

In the interpretation of a statute, the Court should start with the assumption that thelegislature intended to enact an effective law. An interpretation should, if possible, beavoided under which a statute or provision being construed is defeated, or as otherwiseexpressed, nullified, destroyed, emasculated, repealed, explained away, or renderedinsignificant, meaningless, inoperative or nugatory.

It is likewise a basic precept in statutory construction that a statute should be interpreted inharmony with the Constitution. Thus, the interpretation should not be in conflict with theConstitutional mandate of Section 3 of Article X of the Constitution to enact a localgovernment code which shall provide for a more responsive and accountable localgovernment structure instituted through a system of decentralization witheffectivemechanisms of recall, initiative, and referendum x x x.

Petitioners too literal interpretation of the law leads to absurdity which we cannotcountenance. The Court admonishes against a too-literal reading of the law as this is apt toconstrict rather than fulfill its purpose and defeat the intention of its authors. The spirit,rather than the letter of a law determines its construction; hence, a statute, as in this case,must be read according to its spirit and intent.

Finally, recall election is potentially disruptive of the normal working of the local governmentunit necessitating additional expenses, hence the prohibition against the conduct of recallelection one year immediately preceding the regular local election. The proscription isdue to the proximity of the next regular election for the office of the local electiveofficial concerned. The electorate could choose the officials replacement in the saidelection who certainly has a longer tenure in office than a successor elected through a recallelection. It would, therefore, be more in keeping with the intent of the recall provision of theCode to construe regular local election as one referring to an election where the office heldby the local elective official sought to be recalled will be contested and be filled by theelectorate.

Nevertheless, recall is no longer possible because of the limitation stated under Section 74(b) of the Code considering that the next regular election involving the barangay officeconcerned is barely seven (7) months away, the same having been scheduled on May 1997.

Malonzo v Comelec

Facts: Petitioner was duly elected as Mayor, winning over former Mayor Macario

Asistio, Jr. Barely one year into his term, 1,057 Punong Barangays and SangguniangBarangay members and SK chairmen, constituting a majority of the members of thePreparatory Recall Assembly of the City of Caloocan, met, and upon deliberation andelection, 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 recallproceedings against him. The Comelec declared the recall proceedings to be in order. MayorMalonzo filed a petition for certiorari with a prayer for TRO assailing the Comelecsresolution. The Petition, in the main, raises the issue of the validity of the institution andproceedings of the recall, putting to fore the propriety of the service of notices to the


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members of the Preparatory Recall Assembly, and the proceedings held, resulting in theissuance of the questioned Resolution.

Issue: WON notices were properly sent to the members of the PRAHeld: Yes

Ratio:The Commission regards the sending of notice one thing, and the completion ofservice thereof another, for indeed, the requirement of notice can only be fully satisfied, ifthere was not only service, but also completion of service thereof. Thus, we were obliged toinquire more closely into the records and we found. Personal services were acknowledged byreceipts signed, if not by the addressee himself, then, as indicated thereon, by his or herspouse, nearest relative or a person of sufficient discretion in the member 's residence oroffice. Service by registered mail was evinced by the return card duly signed by theaddressee or by persons acting for him. There were instances when notices were served butwere refused, this fact noted in the acknowledgment receipt by the server and hiswitnesses. The circumstances being thus, we hold that there was complete service of thenotices as contemplated in Section 8, Rule 13 of the Rules of Court.

That it was Alex David, President of the LIGA ng mga Barangay who sent the notices is of nomoment. We had earlier determined that as member of the PRA, he can legally exercise theprerogatives attached to his membership in the Preparatory Recall Assembly, sendingnotices to the other members of its scheduled convening. It is evident from the foregoingand, therefore, the Commission so holds that the requirements of notice had been fullycomplied with. Needless to state, the issue of propriety of the notices sent to the PRAmembers is factual in nature, and the determination of the same is therefore a function ofthe COMELEC. In the absence of patent error the Court should not disturb the same.

Issue: WON the proceedings held by the PRA are validHeld: Yes

Ratio: Petitioner's insistence, that the initiation of the recall proceedings was infirm since itwas 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 barangaycaptains and kagawads. The barangays are represented in the Liga by the barangaycaptains as provided under Section 492 LGC. It also provides that the Kagawad mayrepresent the barangay in the absence of the barangay chairman." The Liga ng mgaBarangay is undoubtedly an entity distinct from the Preparatory Recall Assembly. It just sohappens that the personalities representing the barangays in the Liga are the very membersof the Preparatory Recall Assembly, the majority of whom met on July 7, 1996, and voted infavor of the resolution calling for the recall of Mayor Malonzo, after deliberation reported inthe record, in accordance with the existing law. Thus, the Punong Barangays andSangguniang Barangay members convened and voted as members of the Preparatory RecallAssembly of Caloocan, and not as members of the Liga ng mga Barangay. The recallproceedings, therefore, cannot be denied merit on this ground. Any doubt as to the proprietyof the proceedings held during the recall assembly should be laid to rest. As the COMELECpertinently observes: The Minutes of the session of the Preparatory Assembly indicated thatthere 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 maybe were formulated. Deliberations were conducted on the main issue, which was that ofpetitioner's recall. The members were given the opportunity to articulate on their resolveabout the matter. More importantly, their sentiments were expressed through their votessignified by their signatures and thumbmarks affixed to the Resolution. No proof wasadduced by Petitioner to substantiate his claim that the signatures appearing thereonrepresented a cause other than that of adopting the resolution.


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

Claudio v Comelec

Facts:Jovito Claudio was the duly elected mayor of Pasay City in the May 11, 1998. On May19, 1999, several barangay chairs formed an ad hoc committee for the purpose ofconvening the PRA. Richard Advincula was designated chair. The members of the PRAadopted Resolution No. 01, S-1999, initiating Claudios recall. The petition for recall was filedon the Office of the City Mayor. The comelec also posted the petition on the bulletin boardsof certain public places. Oppositions to the petition were filed by Jovito Claudio, Rev. RonaldLangub, and Roberto L. Angeles, alleging procedural and substantive defects in the petition,to wit: (1) the signatures affixed to the resolution were actually meant to show attendanceat the PRA meeting; (2) most of the signatories were only representatives of the partiesconcerned who were sent there merely to observe the proceedings; (3) the convening of thePRA took place within the one-year prohibited period; (4) the election case, filed byWenceslao Trinidad in this Court, seeking the annulment of the proclamation of petitionerClaudio as mayor of Pasay City, should first be decided before recall proceedings againstpetitioner could be filed; and (5) the recall resolution failed to obtain the majority of all themembers of the PRA, considering that 10 were actually double entries, were not dulyaccredited members of the barangays, 40 sangguniang kabataan officials had withdrawntheir support, and 60 barangay chairs executed affidavits of retraction.

The COMELEC granted the petition and dismissed the opposition. It ruled that the 1,073members who attended the May 29, 1999 meeting were more than necessary to constitutethe PRA, considering that its records showed the total membership of the PRA was 1,790,while the statistics of the Department of Interior and Local Government (DILG) showed thatthe total membership of the PRA was 1,876. In either case, since only a majority is requiredto constitute the PRA, clearly, a majority had been obtained in support of the recallresolution. Hence, this petition.

Issue: WON Word "Recall" in Paragraph (b) of 74 of the Local Government Code Includesthe Convening of the Preparatory Recall Assembly and the Filing by it of a Recall ResolutionHeld:Yes

Ratio: We can agree that recall is a process which begins with the convening of thepreparatory, recall assembly or the gathering of the signatures at least 25% of theregistered voters of a local government unit, and then proceeds to the filing of a recallresolution or petition with the COMELEC, the verification of such resolution or petition, thefixing of the date of the recall election, and the holding of the election on the scheduleddate.[5) However, as used in paragraph (b) of 74, "recall" refers to the election itself bymeans of which voters decide whether they should retain their local official or elect hisreplacement. Several reasons can be cited in support of this conclusion.First, 74 deals with restrictions on the power of recall. It is in fact entitled "Limitations onRecall." On the other hand, 69 provides that "the power of recall ...shall be exercised by theregistered voters of a local government unit to which the local elective official belongs."

Since the power vested on the electorate is not the power to initiate recall proceedings[6)but the power to elect an official into office, the limitations in 74 cannot be deemed toapply to the entire recall proceedings. In other words, the term "recall" in paragraph (b)refers only to the recall election, excluding the convening of the PRA and the filing of apetition for recall with the COMELEC, or the gathering of the signatures of at least 25 % ofthe voters for a petition for recall.

Thus, there may be several PRAs held or petitions for recall filed with the COMELEC - there isno legal limit on the number of times such processes may be resorted to. These are merelypreliminary steps for the purpose of initiating a recall. The limitations in 74 apply only to


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the exercise of the power of recall which is vested in the registered voters. It is this - and notmerely, the preliminary steps required to be taken to initiate a recall - which paragraph (b)of 74 seeks to limit by providing that no recall shall take place within one year from thedate of assumption of office of an elective local official.

The second reason why the term "recall" in paragraph (b) refers to recall election is to befound in the purpose of the limitation itself. There are two limitations in paragraph (b) on the

holding of recalls: (1) that no recall shall take place within one year from the date ofassumption of office of the official concerned, and (2) that no recall shall take place withinone year immediately preceding a regular local election.

The purpose of the first limitation is to provide a reasonable basis for judging theperformance of an "The only logical reason which we can ascribe for requiring the electors towait one year before petitioning for a recall election is to prevent premature action on theirpart in voting to remove a newly elected official before having had sufficient time toevaluate the soundness of his policies and decisions." The one-year limitation was reckonedas of the filing of a petition for recall because the Municipal Code involved in that caseexpressly provided that "no removal petition shall be filed against any officer or until he hasactually held office for at least twelve months." But however the period of prohibition isdetermined, the principle announced is that the purpose of the limitation is to provide areasonable basis for evaluating the performance of an elective local official. Hence, in thiscase, as long as the election is held outside the one-year period, the preliminaryproceedings to initiate a recall can be held even before the end of the first year in office of alocal official.

Third, to construe the term "recall" in paragraph (b) as including the convening of the PRAfor the purpose of discussing the performance in office of elective local officials would be tounduly restrict the constitutional right of speech and of assembly of its members. Thepeople cannot just be asked on the day of the election to decide on the performance of theirofficials. The crystallization and formation of an informed public opinion takes time. To hold,therefore, that the first limitation in paragraph (b) includes the holding of assemblies for theexchange of ideas and opinions among citizens is to unduly curtail one of the mostcherished rights in a free society. Indeed, it is wrong to assume that such assemblies willalways eventuate in a recall election. To the contrary, they may result in the expression ofconfidence in the incumbent.

To sum up, the term "recall" in paragraph (b) refers to the recall election and not to thepreliminary proceedings to initiate recall -Because 74 speaks of limitations on "recall" which, according to 69, is a power which shallbe exercised by the registered voters of a local government unit. Since the voters do notexercise such right except in an election, it is clear that the initiation of recall proceedings isnot prohibited within the one-year period provided in paragraph (b);Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficientbasis for judging an elective local official, and final judging is not done until the day of theelection; and Because to construe the limitation in paragraph (b) as including the initiationof recall proceedings would unduly curtail freedom of speech and of assembly guaranteed inthe Constitution.As the recall election in Pasay City is set on April 15, 2000, more than one year afterpetitioner assumed office as mayor of that city, we hold that there is no bar to its holding onthat date.

Issue: WON the Phrase "Regular Local Election" in the Same Paragraph (b) of 74 of the LGCincludes the Election Period for that Regular Election or Simply the Date of Such Election

Ratio: The law is unambiguous in providing that "[n) o recall shall take place within . . . one(1) year immediately preceding a regular local election." Had Congress intended thislimitation to refer to the campaign period, which period is defined in the Omnibus ElectionCode, it could have expressly said so.


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Moreover, petitioner's interpretation would severely limit the period during which a recallelection may be held. Actually, because no recall election may be held until one year afterthe assumption of office of an elective local official, presumably on June 30 following hiselection, the free period is only the period from July 1 of the following year to about themiddle of May of the succeeding year. This is a period of only nine months and 15 days,more or less. To construe the second limitation in paragraph (b) as including the campaign

period would reduce this period to eight months. Such an interpretation must be rejected,because it would devitalize the right of recall which is designed to make local governmentunits" more responsive and accountable."Indeed, there is a distinction between election period and campaign period. Under theOmnibus Election Code, unless otherwise fixed by the COMELEC, the election periodcommences ninety (90) days before the day of the election and ends thirty (30) daysthereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph(b) includes the "election period" would emasculate even more a vital right of the people.

To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on the holding ofrecall elections. First, paragraph (a) prohibits the holding of such election more than onceduring the term of office of an elective local official. Second, paragraph (b) prohibits theholding of such election within one year from the date the official assumed office. And third,paragraph (b) prohibits the holding of a recall election within one year immediatelypreceding a regular local election. As succinctly stated in Paras v. COMELEC, "[p) aragraph(b) construed together with paragraph (a) merely designates the period when such electivelocal official may be subject to recall election, that is, during the second year of office."

Issue: WON the Recall RESOLUTION was Signed by a Majority of the PRA and Duly VerifiedHeld: Yes

Ratio: Petitioner alleges other grounds for seeking the annulment of the resolution of theCOMELEC ordering the holding of a recall election. He contends that a majority of thesignatures of the members of the PRA was not obtained because 74 members did not reallysign the recall resolution. According to petitioner, the 74 merely signed their names onpages 94-104 of the resolution to signify their attendance and not their concurrence.Petitioner claims that this is shown by the word "Attendance" written by hand at the top ofthe page on which the signatures of the 74 begin.

This contention has no basis. To be sure, this claim is being raised for the first time in thiscase. It was not raised before the COMELEC. Although the word "Attendance" appears at thetop of the page, it is apparent that it was written by mistake because it was crossed out bytwo parallel lines drawn across it. Apparently, it was mistaken for the attendance sheetwhich is a separate document. It is absurd to believe that the 74 members of the PRA whosigned the recall resolution signified their attendance at the meeting twice. It is moreprobable to believe that they signed pages 94-104 to signify their concurrence in the recallresolution of which the pages in question are part. The other point raised by petitioner isthat the recall petition filed in the COMELEC was not duly verified, because Atty. Nelson Ng,who notarized it, is not commissioned as notary public for Pasay City but for Makati City. Asin the case of the first claim, this issue was not raised before the COMELEC itself. It cannot,therefore, be raised now.

Javellana DILG

Facts: Attorney Erwin B. Javellana was an elected City Council or of Bago City,Negros Occidental. City Engineer Ernesto C. Divinagracia filed Administrative Case against

Javellana.Divinagracia's complaint alleged that Javellana has continuously engaged in thepractice 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 inrelation 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


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City Engineer Ernesto C. Divinagracia of Bago City for "Illegal Dismissal and Reinstatementwith Damages" putting him in public ridicule: that Javellana also appeared as counsel inseveral criminal and civil cases in the city, without prior authority of the DLG RegionalDirector, in violation of DLG Memorandum Circular No. 80-38

Javellana filed a Motion to Dismiss the administrative case against him on the ground mainlythat DLG Memorandum Circular Nos. 80-38 and 90-81 are unconstitutional because the

Supreme Court has the sole and exclusive authority to regulate the practice of law. Themotion to dismiss was denied.A few months later, the LGC was enacted which provides: "SEC. 90. Practice of Profession."(b) Sanggunian members may practice their professions, engage in any occupation, orteach in schools except during session hours: Provided, That sanggunian members who arealso members of the Bar shall not:"(1) Appear as counsel before any court in any civil case wherein a local government unit orany 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 nationalor 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 localgovernment unit of which he is an official; and"(4) Use property and personnel of the Government except when the sanggunian memberconcerned is defending the interest of the Government.

Javellana thereupon filed this petition for certiorari praying that DLG Memorandum CircularsNos. 80-38 and 90-81 and Section 90 of RA 7160 be declared unconstitutional and null and

Issue: WON the Memorandum Circulars and Section 90 of RA 7160 are unconstitutionalHeld: No

Ratio: In the first place, complaints against public officers and employees relating orincidental to the performance of their duties are necessarily impressed with public interestfor by express constitutional mandate, a public office is a public trust. The complaint forillegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in effecta complaint against the City Government of Bago City, their real employer, of whichpetitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia,would actually be a judgment against the City Government. By serving as counsel for thecomplaining employees and assisting them to prosecute their claims against City EngineerDivinagracia, the petitioner violated Memorandum Circular No. 74-58 (in relation to Section7[b-2] of RA 6713) prohibiting a government official from engaging in the private practice ofhis 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 DLGMemorandum Circular No. 90-81 violate Article VIII. Section 5 of the Constitution iscompletely off tangent. Neither the statute nor the circular trenches upon the SupremeCourt's power and authority to prescribe rules on the practice of law. The Local GovernmentCode and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for publicofficials to avoid conflicts of interest between the discharge of their public duties and theprivate practice of their profession, in those instances where the law allows it.Section 90 of the Local Government Code does not discriminate against lawyers anddoctors. 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 theirprofessions, engage in any occupation, or teach in schools except during session hours." Ifthere are some prohibitions that apply particularly to lawyers, it is because of all theprofessions, the practice of law is more likely than others to relate to, or affect, the area ofpublic service.

PIMENTEL VS AGUIRRE2000, Panganiban


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Facts:1. 1997 Pres. FVR issued AO 372 to reduce the total expenditures in 1998 by 25%

a. Sec. 1 All government departments and agencies, including state universities andcolleges, government-owned and controlled corporations and local governmentsunits will identify and implement measures in FY 1998 that will reduce totalexpenditures for the year by at least 25% of authorized regular appropriations

b. Sec. 4 Pending the assessment and evaluation by the Development BudgetCoordinating Committee of the emerging fiscal situation, the amount equivalent to10% of the internal revenue allotment (IRA) to local government units shall bewithheld.

2. 1998 Pres. Estrada issues AO43 amending Sec.4 decreasing the withholding of IRA to5%.

3. Pimentel FILED: Certiorari and Prohibition v. Aguirre (in his capacity as executivesecretary).a. He seeks to enjoin the implementation of the two provisions.

4. Roberto Pagdanganan INTERVENTION provincial governor of Bulacan, national presidentof the League of Provinces of the Philippines and chairman of the League of Leagues ofLocal Governments. SC noted said motion.

5. Pet. Stand: In issuing assailed order the president exercised the power of control overLGUs in contravention of Sec. 286 LGU Code (automatic release of IRA) and Sec 6 Art Xof the Constitution (just share in taxes automatically released).Resp. Stand: The AOs were to alleviate economic difficulty (a cash measure); merelysupervisory/advisory. Withholding of the IRA merely temporary pending assessment.

Issue: W/N the AOs were valid?

Held: Sec 1, mere advisory to decrease expenditures is valid. Sec4, the withholding of IRA incontravention to LocGov code and Constitution is invalid/unconstitutional.

1. Sec 4 Art X Consti provides that the Pres. Only has the power of supervision overLGUs. The president has the power of control only over the exec. department (recallthe one person / alter egos in exec dept doctrine).- Drilon v. Lim Control v. supervision. Officers in control lay down the rules in the

performance or accomplishment of an act. If these rules are not followed, they may,in their discretion, order the act undone or redone by their subordinates or evendecide to do it themselves. On the other hand, supervision does not cover suchauthority. Supervising officials merely see to it that the rules are followed, but theythemselves do not lay down such rules, nor do they have the discretion to modify orreplace them. If the rules are not observed, they may order the work done or redone,but only to conform to such rules. They may not prescribe their own manner ofexecution of the act. They have no discretion on this matter except to see to it thatthe rules are followed.

- LGU officials power stems from the electorates sovereign power, and not thepresident. Hence the Pres. Only has supervision over the LGU officials. So long astheir acts are within the sphere of their legit powers, the Pres. may not withhold oralter any authority or power given them by the Constitution and the law

2. State policy of ensuring local autonomy and the decentralization ofadministration- Ganzon v. CA local autonomy - a more responsive and accountable local

government structure instituted through a system of decentralization.(decentralization of admin)

- Decentralization simply means the devolution of national administration, not power,to local governments.

3. Sec. 1 valid. Merely directory.


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- GN: LGUs have Local Fiscal autonomy the power to create their own sources ofrevenue in addition to their equitable share in the national taxes released by thenational government, as well as the power to allocate their resources in accordancewith their own priorities. It does not however rule out any manner of national govtintervention by supervision.EXC: Hence Sec. 284 of the LocGov code provides an exception.

REQs(1) an unmanaged public sector deficit of the national government(2) consultations with the presiding officers of the Senate and the House of

Representatives and the presidents of the various local leagues; and(3) the corresponding recommendation of the secretaries of the Department of

Finance, Interior and Local Government, and Budget and Management.Furthermore, any adjustment in the allotment shall in no case be less than thirtypercent (30%) of the collection of national internal revenue taxes of the third fiscalyear preceding the current one.

- Pet. these reqs have not been complied with.Resp. no need to comply with reqs, inapplicable since Sec 1 is merely directory, notbeing mandatory it is not an exercise of control by the president.

- SC - The language used, while authoritative, does not amount to acommand. Rather, the provision is merely an advisory to prevail upon localexecutives to recognize the need for fiscal restraint in a period of economic difficulty.Hence no need to comply with reqs.

4. Sec. 4 invalid. Unconsti.- A basic feature of local fiscal autonomy is the automatic release of the shares of

LGUs in the national internal revenue. Consti Sec 6. Art X and- Loc Gov Sec. 286 provides that it shall not be subject to any lien or holdback that

may be imposed by the national government for whatever purpose." The term "shall"is a word of command that must be given a compulsory meaning. The provision is,therefore, imperative.

- Section 4 of AO 372, however, orders the withholding pending assessment. Suchwithholding clearly contravenes the Constitution and the law. Although temporary, itis equivalent to a holdback which means "something held back or withheld, oftentemporarily." Hence, the "temporary" nature of the retention by the nationalgovernment does not matter. Any retention is prohibited.

5. Refutation of Justice Kapunan's Dissenta. Kapunan: the petition is premature. Incorrect because Tanada v. Angara - By the

mere enactment of the questioned law or the approval of the challenged action, thedispute is said to have ripened into a judicial controversy even without any otherovert act. Besides this issue on prematurity has not been raised by the parties.

b. Kapunan: Sec4 is subsumed into the power of the president as chief fiscal officer andpoints out instances where he may intervene in local matters. Incorrect becausethese instances as referred to in the Dissent have specifically been authorized bylaw, vs. here the AO is clearly in contravention to law.

c. Further striking down Sec4 of the AO, doesnt mean that LocGov 284 cannot be usedanymore. Kapunan glances over the fact that the proviso requires interactionbetween the national government and the LGUs at the planning level, in this case the

problem is that no such interaction or consultation was ever held prior to theissuance of AO 372. That is why the provincial governor Pagdanganan intervened.

d. Kapunan argues Sec4 may be valid under LocGov 287 a cursory reading revealsthat it is totally inapplicable to the issue at bar. It directs LGUs to appropriate in theirannual budgets percent of their respective IRAs for development projects. It speaksof no positive power granted the President to priorly withhold any amount. Not at all.


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WHEREFORE Certiorari and Prohibition GRANTED. Respondents and their successors arehereby permanently PROHIBITED from implementing the AOs, insofar as local governmentunits are concerned.

NPC VS CBAA2009, Brion

Facts:1993, First Private Power Corporation (FPPC) entered into a BOT agreement with NAPOCORfor the construction of the 215 Megawatt Bauang Diesel Power Plant in Payocpoc, Bauang,La Union. The BOT Agreement provided for the creation of the Bauang Private PowerCorporation (BPPC) that will own, manage and operate the power plant/station, and assumeand perform FPPCs obligations under the BOT agreement. For a fee, 3 BPPC will convertNAPOCORs supplied diesel fuel into electricity and deliver the product to NAPOCOR.

BOT Agreement also provides that NAPOCOR shall be responsible for the payment of all realestate taxes and assessments, rates, and other charges in respect of the Site and thebuildings and improvements thereon. CONTRACTOR shall, directly or indirectly, own thePower Station and all the fixtures, fittings, machinery, and equipment on the Site or used inconnection with the Power Station which have been supplied by it or at its cost and it shalloperate and manage the Power Station for the purpose of converting fuel of NAPOCOR intoelectricity.

Municipality of Bauang questioned before the Regional Director of the Bureau of LocalGovernment Finance (BLGF) the declared tax exemption; later, the issue was elevated to theDeputy Executive Director and Officer-in-Charge of the BLGF, Department of Finance, whoruled that BPPCs machineries and equipments are subject to real property tax and directedthe Assessors Office to take appropriate action. Municipal Assessor of Bauang then issued aNotice of Assessment and Tax Bill to BPPC assessing/taxing the machineries and equipments

NAPOCOR filed a petition with the LBAA. The petition asked that, retroactive to 1995, themachineries covered by the tax declarations be exempt from real property tax under Section234(c) of Republic Act No. 7160

Section 234. Exemptions from Real Property Tax. The following are exempted fromthe payment of real property tax: (c) All machineries and equipment that areactually, directly and exclusively used by local water districts and government-ownedor controlled corporations engaged in the supply and distribution of water and/orgeneration and transmission of electric power;

LBAA: Denied the petition. In this case, NAPOCOR does not own and does not even actuallyand directly use the machineries. It is the BPPC, a non-government entity, which owns,maintains, and operates the machineries and equipment; using these, it generateselectricity and then sells this to NAPOCOR. Additionally, it ruled that the liability for thepayment of the real estate taxes is determined by law and not by the agreement of theparties; hence, the provision in the BOT Agreement whereby NAPOCOR assumedresponsibility for the payment of all real estate taxes and assessments, rates, and other

charges, in relation with the site, buildings, and improvements in the BOT project, is anarrangement between the parties that cannot be the basis in identifying who is liable to thegovernment for the real estate tax.

CBAA subsequently dismissed the appeal based on its finding that the BPPC, and notNAPOCOR, is the actual, direct and exclusive user of the equipment and machineries. It hasbeen established that BPPC manufactures or generates the power which is sold to NAPOCORand NAPOCOR distributes said power to the consumers. In other words, the relationshipbetween BPPC and NAPOCOR is one of manufacturer or seller and exclusive distributor or
http://www.lawphil.net/judjuris/juri2009/jan2009/gr_171470_2009.html#fnt3http://www.lawphil.net/judjuris/juri2009/jan2009/gr_171470_2009.html#fnt3http://www.lawphil.net/judjuris/juri2009/jan2009/gr_171470_2009.html#fnt3


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buyer. Indeed BPPC does not use said machineries and equipment pretendedly or feignedlybut truly and factually hence, "actually." BPPC uses them without anything interveninghence, directly. BPPC uses the same machineries and equipment apart from all othershence, exclusively.

CTA: It found that BPPC never filed an appeal to contest or question the assessment;

instead, it was NAPOCOR that filed the purported appeal a petition for exemption of themachineries and equipment. The CTA, however, said that NAPOCOR is not the proper party,and the purported appeal did not substantially comply with the requisites of the law.According to the CTA, NAPOCOR is not the registered owner of the machineries andequipment. These are registered in BPPCs name as further confirmed by Section 2.08 of theBOT Agreement. It noted that under the BOT Agreement, NAPOCOR shall have a right overthe machineries and equipments only after their transfer at the end of the 15-year co-operation period. "By the nature of the agreement and work of BPPC, the [machineries] areactually, directly, and exclusively used by it in the conversion of bunker fuel to electricity for[NAPOCOR] for a fee," the CTA said.

Issue: WON NAPOCOR is exemptHeld: No

Ratio:Section 234(c) of the LGC is clear and not at all ambiguous in its terms. Exempt from realproperty taxation are: (a) all machineries and equipment; (b) [that are] actually, directly,and exclusively used by; (c) [local water districts and] government-owned or controlledcorporations engaged in the [supply and distribution of water and/or] generation andtransmission of electric power.

We note, in the first place, that the present case is not the first occasion where NAPOCORclaimed real property tax exemption for a contract partner under Sec. 234 (c) of the LGC. InFELS Energy, Inc. v. The Province of Batangas. We concluded in that case that we could notrecognize the tax exemption claimed, since NAPOCOR was not the actual, direct andexclusive user of the barge as required by Sec. 234 (c). The mere undertaking of petitionerNPC under Section 10.1 of the Agreement, that it shall be responsible for the payment of allreal estate taxes and assessments, does not justify the exemption. The privilege granted topetitioner NPC cannot be extended to FELS. The covenant is between FELS and NPC anddoes not bind a third person not privy thereto, in this case, the Province of Batangas.

Rather than ownership, NAPOCORs use of the machineries and equipment is the criticalissue, since its claim under Sec. 234(c) of the LGC is premised on actual, direct andexclusive use. To support this claim, NAPOCOR characterizes the BOT Agreement as a merefinancing agreement where BPPC is the financier, while it (NAPOCOR) is the actual user ofthe properties. As in the fact of ownership, NAPOCORs assertion is belied by thedocumented arrangements between the contracting parties, viewed particularly from theprism of the BOT law.

Build-operate-and-transfer A contractual arrangement whereby the project proponent

undertakes the construction, including financing, of a given infrastructure facility, and theoperation and maintenance thereof. The project proponent operates the facility over a fixedterm during which it is allowed to charge facility users appropriate tolls, fees, rentals, andcharges not exceeding those proposed in its bid or as negotiated and incorporated in thecontract to enable the project proponent to recover its investment, and operating andmaintenance expenses in the project. The project proponent transfers the facility to thegovernment agency or local government unit concerned at the end of the fixed term whichshall not exceed fifty (50) years.


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That some kind of "financing" arrangement is contemplated in the sense that the privatesector proponent shall initially shoulder the heavy cost of constructing the projectsbuildings and structures and of purchasing the needed machineries and equipment isundeniable. The arrangement, however, goes beyond the simple provision of funds, sincethe private sector proponent not only constructs and buys the necessary assets to put upthe project, but operates and manages it as well during an agreed period that would allow it

to recover its basic costs and earn profits. In other words, the private sector proponent goesinto business for itself, assuming risks and incurring costs for its account.

In this sense, a BOT arrangement is sui generis and is different from the usual financingarrangements where funds are advanced to a borrower who uses the funds to establish aproject that it owns, subject only to a collateral security arrangement to guard against thenonpayment of the loan

If the BOT Agreement under consideration departs at all from the concept of a BOT projectas defined by law, it is only in the way BPPCs cost recovery is achieved; instead of selling tofacility users or to the general public at large, the generated electricity is purchased byNAPOCOR which then resells it to power distribution companies. This deviation, however, isdictated, more than anything else, by the structure and usages of the power industry anddoes not change the BOT nature of the transaction between the parties.

For these same reasons, we reject NAPOCORs argument that the machineries andequipment must be subjected to a lower assessment level. NAPOCOR cites as supportSection 216 of the LGC. Since the basis for the application of the claimed differentialtreatment or assessment level is the same as the claimed tax exemption, the lower tribunalscorrectly found that there is no basis to apply the lower assessment level of 10%.

AQUINO VS AURE2008, Chico-Nazario

FACTS:Aure and Aure Lending filed a Complaint for ejectment against Aquino before MTC, allegingthat they acquired the property from Sps Aquino by virtue of a Deed of Sale. Aure claimedthat after the spouses Aquino received substantial consideration for the sale of the subjectproperty, they refused to vacate the same.

In her Answer, Aquino countered the complaint lacks COA for Aure and Aure Lending do nothave any legal right over the subject property. Aquino admitted there was a sale but it wasgoverned by the MOA signed by Aure, which stated that Aure shall secure a loan from abank or financial institution in his own name using the subject property as collateral and turnover the proceeds thereof to the spouses Aquino. However, even after Aure successfullysecured a loan, the spouses Aquino did not receive the proceeds thereon or benefitedtherefrom

MeTC: dismissed: non-compliance with buy conciliation process; Aure and Aquino areresidents of the same bgy but no showing of any attempt to settle the case amicably at thebuy level.

RTC: affirmed: buy conciliation is a conditio sine qua non for the filing of ejectmentcomplaint involving residents of the same bgy.

CA: reversed and remanded case to MeTC for further proceedings. Failure of Aure to subjectthe matter to barangay conciliation is not a jurisdictional flaw and it will not affect thesufficiency of Aures Complaint since Aquino failed to seasonably raise such issue in herAnswer.


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ISSUE: WON non-recourse to the barangay conciliation process is a jurisdictional flaw thatwarrants the dismissal of the ejectment suit

HELD: No. Although Aquinos defense of non compliance with PD 1508 is meritorious,procedurally, such defense is no longer available for failure to plead the same in the Answeras required by the omnibus motion rule.

RATIO: The primordial objective of PD 1508 is to reduce the number of court litigations andprevent the deterioration of the quality of justice which has been brought by theindiscriminate filing of cases in the courts. To ensure this objective, PD 1508 S6 requires theparties to undergo a conciliation process before the Lupon Chairman or the Pangkat ng

Tagapagkasundo as a precondition to filing a complaint in court subject to certainexceptions which are inapplicable to this case. The said section has been declaredcompulsory in nature. This is now incorporated in LGC 412.

The precise technical effect of failure to comply with the requirement of Section 412 of theLocal Government Code on barangay conciliation (previously contained in Section 5 ofPresidential Decree No. 1508) is much the same effect produced by non exhaustion ofadministrative remedies the complaint becomes afflicted with the vice of prematurity; andthe controversy there alleged is not ripe for judicial determination. The complaint becomesvulnerable to a motion to dismiss.

Nevertheless, conciliation process is not a jurisdictional requirement so that non compliancetherewith cannot affect the jurisdiction which the court has otherwise acquired over thesubject matter or over the person of the defendant

1) Aquino already voluntarily submitted herself to the jurisdiction of the MeTC so she can nolonger be allowed to attack its jurisdiction. (i.e. by filing an Answer & failing to object to suchexercise of jurisdiction in her Answer)

2) The failure of a defendant [Aquino] in an ejectment suit to specifically allege the fact thatthere was no compliance with the barangay conciliation procedure constitutes a waiver ofthat defense. (Rules of CivPro R9.1 and R8.15) The fact that Aquino raised such objectionduring the pretrial and in her Position Paper is of no moment, for the issue of nonrecourse tobarangay mediation proceedings should be impleaded in her Answer. The spirit thatsurrounds the foregoing statutory norm is to require the party filing a pleading or motion toraise all available exceptions for relief during the single opportunity so that single ormultiple objections may be avoided.

Neither could the MeTC dismiss the case motu proprio. The 1997 Rules of Civil Procedureprovide only three instances when the court may motu proprio dismiss the claim, and that iswhen the pleadings or evidence on the record show that (1) the court has no jurisdictionover the subject matter; (2) there is another cause of action pending between the sameparties for the same cause; or (3) where the action is barred by a prior judgment or by astatute of limitations. Thus, it is clear that a court may not motu proprio dismiss a case onthe ground of failure to comply with the requirement for barangay conciliation, this ground

not being among those mentioned for the dismissal by the trial court of a case on its owninitiative.

Morata v Go

Facts On August 5, 1982, Victor Go and Flora D. Go filed a complaint against petitionersJulius Morata and Ma. Luisa Morata for recovery of a sum of money plus damages amountingto P49,400.00. On the basis of the allegation in the complaint that the parties-litigants are allresidents of Cebu City, petitioners filed a motion to dismiss, citing as grounds therefor, the


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failure of the complaint to allege prior availment by the plaintiffs of the barangayconciliation process required by P.D. 1508, as well as the absence of a certification by theLupon or Pangkat Secretary that no conciliation or settlement had been reached by theparties. The judge denied the motion to dismiss, ruling that the provision of Sec 6 of the lawapplies only to cases cognizable by the inferior courts mentioned in Secs 11 and 12 of thelaw.

Issue: WON the complaint should be dismissed for failure to comply with PD 1508Held: Yes

Ratio: Section 6 of P.D. 1508 reads as follows:SECTION 6. Conciliation pre-condition to filing of complaint. No complaint, petition, action for

proceeding involving any matter within the authority of the Lupon as provided in Section 2hereof shall be filed or instituted in court or any other government office for adjudicationunless there has been a confrontation of the parties before the Lupon Chairman or thePangkat and no conciliation or settlement has been reached as certified by the LuponSecretary or the Pangkat Secretary attested by the Lupon or Pangkat Chairman, or unlessthe settlement has been repudiated. However, the parties may go directly to court in thefollowing cases:[1] Where the accused is under detention;[2] Where a person has otherwise been deprived of personal liberty calling for habeascorpus proceedings;[3] Actions coupled with provisional remedies such as preliminary injunction, attachment,delivery of personal property and support pendente lite; and[4] Where the action may otherwise be barred by the Statute of LimitationsSECTION 2. Subject matters for amicable settlement. The Lupon of each barangay shall haveauthority to bring together the parties actually residing in the same city or municipality foramicable settlement of all disputes except:[1] Where one party is the government ,or any subdivision or instrumentality thereof;[2] Where one party is a public officer or employee, and the dispute relates to the

performance of his official functions;[3] Offenses punishable by imprisonment exceeding 30 days, or a fine exceeding P200.00;[4] Offenses where there is no private offended party;[5] Such other classes of disputes which the Prime Minister may in the interest of justicedetermine upon recommendation of the Minister of Justice and the Minister of LocalGovernment.

Thus, except in the instances enumerated in sections 2 and 6 of the law, the Lupon has theauthority to settle amicably all types of disputes involving parties who actually reside in thesame city or municipality. The law, as written, makes no distinction whatsoever with respectto the classes of civil disputes that should be compromised at the barangay level, incontradistinction to the limitation imposed upon the Lupon by paragraph (3), section 2thereof as regards its authority over criminal cases. In fact, in defining the Lupon's authority,Section 2 of said law employed the universal and comprehensive term "all", to which usageWe should neither add nor subtract in consonance with the rudimentary precept in statutoryconstruction that "where the law does not distinguish, We should not distinguish. 2 By

compelling the disputants to settle their differences through the intervention of thebarangay leader and other respected members of the barangay, the animosity generated byprotracted court litigations between members of the same political unit, a disruptive factortoward unity and cooperation, is avoided. It must be borne in mind that the conciliationprocess at the barangay level is likewise designed to discourage indiscriminate filing ofcases in court in order to decongest its clogged dockets and, in the process, enhance thequality of justice dispensed by it. Thus, to say that the authority of the Lupon is limited tocases exclusively cognizable by the inferior courts is to lose sight of this objective. Worse, itwould make the law a self-defeating one. For what would stop a party, say in an action for a


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sum of money or damages, as in the instant case, from bloating up his claim in order toplace his case beyond the jurisdiction of the inferior court and thereby avoid the mandatoryrequirement of P.D. 1508? And why, indeed, should the law seek to ease the congestion ofdockets only in inferior courts and not in the regional trial courts where the log-jam of casesis much more serious? Indeed, the lawmakers could not have intended such half-measureand self-defeating legislation.

There can be no question that when the law conferred upon the Lupon "the authority tobring together the parties actually residing in the same city or municipality for amicablesettlement of all disputes, ... ," its obvious intendment was to grant to the Lupon as broadand comprehensive an authority as possible as would bring about the optimum realization ofthe aforesaid objectives. These objectives would only be half-met and easily thwarted if theLupon's authority is exercised only in cases falling within the exclusive jurisdiction of inferiorcourts.Moreover, if it is the intention of the law to restrict its coverage only to cases cognizable bythe inferior courts, then it would not have provided in Section 3 thereof the following rule onVenue, to wit:Section 3. Venue. ... However, all disputes which involve real property or any interest thereinshall be brought in the Barangay where the real property or and part thereof is situated.for it should be noted that, traditionally and historically, jurisdiction over cases involving realproperty or any interest therein, except forcible entry and detainer cases, has always beenvested in the courts of first instance [now regional trial court].But it is pointed out by the respondent judge that Sections 11, 12, and 14, of the law speakof the city and/or municipal courts as the forum for the nullification or execution of thesettlement or arbitration award issued by the Lupon. We hold that this circumstance cannotbe construed as a limitation of the scope of authority of the Lupon. As heretofore stated, theauthority of the Lupon is clearly established in Section 2 of the law; whereas Sections 11, 12and 14, relied upon by respondent judge, deal with the nullification or execution of thesettlement or arbitration awards obtained at the barangay level. These sections conferredupon the city and municipal courts the jurisdiction to pass upon and resolve petitions oractions for nullification or enforcement of settlement/arbitration awards issued by the Lupon,regardless of the amount involved or the nature of the original dispute. But there is nothingin the context of said sections to justify the thesis that the mandated conciliation process inother types of cases applies exclusively to said inferior courts.Any doubt on the issue before Us should be dispelled by Circular No. 22 issued by Chief

Justice Enrique M. Fernando, regarding the implementation of the KatarungangPambarangay Law. It is significant that the above-quoted circular embodying the directive"to desist from receiving complaints, petitions, actions and proceedings in cases fallingwithin the authority of said Lupons," has been addressed not only to judges of city andmunicipal courts, but also to all the judges of the courts of first instance, circuit criminalcourts, juvenile and domestic courts and courts of agrarian relations, now known as regionaltrial courts under B.P. No. 129. The said circular was noted by president Ferdinand E. Marcosin a Letter of Implementation, dated November 12, 1979, the first paragraph of which readsas follows: "with the view to easing up the log-jam of cases and solving the backlogs in thecase of dockets of all government offices involved in the investigation, trial and adjudicationof cases, it is hereby ordered that immediate implementation be made by all governmentofficials and offices concerned of the system of amicably settling disputes at the barangay

level as provided for in the Katarungang Pambarangay Law [Presidential Decree No. 1508]."

FELICIDAD UY VS HON. MAXIMO C. CONTRERAS1994

FACTS:

Felicidad Uy subleased from respondent Susanna Atayde (hereinafterAtayde) the other

half of the second floor of a building located at corner Reposo and Oliman Streets,Makati, Metro Manila wherein she operated and maintained a beauty parlor.


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15 April 1993The sublease contract expired however, Uy was not able to remove all

her movable properties.

17 April 1993an argument arose between the petitioner and Atayde when the former

sought to withdraw from the subleased premises her remaining movable properties.Theargument degenerated into a scuffle between Uy, on the one hand, and Atayde andseveral of Atayde's employees, including private respondent Winnie Javier

(hereinafterJavier), on the other. 21 April 1993the private respondent had themselves medically examined for the

alleged injuries inflicted on them by the petitioner.

23 April 1993the private respondents filed a complaint with the barangay captain of

Valenzuela, Makati, which was docketed as Barangay Cases Nos. 1023 and 1024. Theconfrontation of the parties was scheduled by the barangay captain for 28 April 1993. Onthe said date, only the petitioner appeared. The barangay captain then reset theconfrontation to 26 May 1993.

11 May 1993, the Office of the Provincial Prosecutor of Rizal filed two informations for

slight physical injuries against the petitioner with the MTC of Makati.

21 May 1993Judge Contreras of Branch 61 ordered the petitioner to submit her

counter-affidavit and those of her witnesses.

14 June 1993the petitioner submitted the required counter-affidavits. In her owncounter-affidavit, the Uy specifically alleged the prematurity of the filing of the criminalcases for failure to undergo conciliation proceedings as she and the private respondentsare residents of Manila.She also attached to it a certification by the barangay captain ofValenzuela, Makati, dated 18 May 1993, that there was an ongoing conciliation betweenAtayde and the petitioner in Barangay Case No. 1023.

18 June 1993Uy filed a motion to dismiss Criminal Cases Nos. 145233 and 145234 for

non-compliance with the requirement of P.D. No. 1508 on prior referral to the LupongTagapamayapa and pursuant to Section 18 of the 1991 Revised Rule on SummaryProcedure.

On 2 July 1993, public respondent Judge Contreras handed down an order denying the

motion to dismiss, saying that the accused had already waived the right to areconciliation proceedings before the barangay of Valenzuela, Makati considering that

accused and complainant are residents of different barangays; that the offense chargedoccurred in the Municipality of Makati; and finally, this offense is about to prescribe.

The petitioner contends that the respondent judge committed grave abuse of discretion

amounting to lack of jurisdiction when he denied the motion to dismiss considering thatthe private respondents failed to comply with the mandatory requirement of P.D. No.1508, now embodied in Section 412 of the Local Government Code of 1991 and furtherrequired under the 1991 Revised Rule on Summary Procedure.

Respondents contend that the denial of the motion to dismiss is proper because prior

referral of the dispute to the lupon is not applicable in the case of private respondentJavier since she and the petitioner are not residents of barangays in the same city ormunicipality or of adjoining barangays in different cities or municipalities and thatreferral to the lupon is not likewise required if the case may otherwise be barred by the

statute of limitations. Moreover, even assuming arguendo that prior referral tothe lupon applies to the case of private respondent Atayde, the latter had, nevertheless,substantially complied with the requirement.

HELD:

The law on the katarungang pambarangaywas originally governed by P.D. No. 1508

however, the Local Government Code of 1991, specifically Chapter 7, Title I, Book IIIthereof, revised the law on the katarungang pambarangay. Pertinent portions of whichare Sections 408 (subject matter of amicable settlement), 410 (procedure for amicablesettlement), 412 (conciliation) and 415 (appearance of parties in person). Note: Please


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refer to the Codal. It may thus be observed that the revised katarungangpambarangaylaw has at least three new significant features, to wit:

It increased the authority of the lupon in criminal offenses from those punishable by

imprisonment not exceeding thirty days or a fine not exceeding P200.00 in P.D. No. 1508to those offenses punishable by imprisonment not exceeding one year or a fine notexceeding P5,000.00.

o The first feature has necessarily broadened the jurisdiction of the lupon and if themediation and conciliation process at that level would be effectively pursued, fewcases would reach the regular courts, justice would be achieved at less expense tothe litigants, cordial relationships among protagonists in a small community would berestored, and peace and order therein enhanced.

As to venue, it provides that disputes arising at the workplace where the contending

parties are employed or at the institution where such parties are enrolled for study, shallbe brought in the barangay where such workplace or institution is located.

o The second feature, which is covered by paragraph (d), Section 409 of the Local

Government code, also broadens the authority of the lupon in the sense thatappropriate civil and criminal cases arising from incidents occurring in workplaces orinstitutions of learning shall be brought in the barangay where such workplace orinstitution is located. That barangay may not be the appropriate venue in either

paragraph (a) or paragraph (b) of the said section. This rule provides convenience tothe parties. Procedural rules including those relating to venue are designed to insurea fair and convenient hearing to the parties with complete justice between them as aresult. Elsewise stated, convenience is the raison d'etre of the rule on venue.

It provides for the suspension of the prescriptive periods of offenses during the pendency

of the mediation, conciliation, or arbitration process. Paragraph (c) of Section 410 of thelaw, however, suffers from some ambiguity when it provides that the prescriptive periods"shall resume upon receipt by the complainant of the complaint or the certificate ofrepudiation or of the certification to file action issued by the lupon or pangkat secretary."What is referred to as receiptby the complainant of the complaintis unclear; obviously,it could have been a drafting oversight. Accordingly, in the above quoted Section 11 ofthe Rules and Regulations issued by the Secretary of Justice, the phrase "the complaintor" is not found, such that the resumption of the running of the prescriptive period shall,properly, be from receipt by the complainant of the certificate of repudiation or thecertification to file action issued by the lupon or the pangkat secretary. Such suspension,however, shall not exceed sixty days.o The third feature is aimed at maximizing the effectiveness of the mediation,

conciliation, or arbitration process. It discourages any intentional delay of the referralto a date close to the expiration of the prescriptive period and then invoking theproximity of such expiration as the reason for immediate recourse to the courts. Italso affords the parties sufficient time to cool off and face each other with lessemotionalism and more objectivity which are essential ingredients in the resolution oftheir dispute. The sixty-day suspension of the prescriptive period could spell thedifference between peace and a full-blown, wearisome, and expensive litigationbetween the parties.

While P.D. No. 1508 has been repealed by the Local Government Code of 1991, thejurisprudence built thereon regarding prior referral to the lupon as a pre-condition to thefiling of an action in court remains applicable because its provisions on prior referralwere substantially reproduced in the Code.

In the proceeding before the court a quo, the petitioner and the respondent had in mind

only P.D. No. 1508. The petitioner further invoked the aforequoted Section 18. Noneknew of the repeal of the decree by the Local Government Code of 1991. Even in herinstant petition, the petitioner invokes the decree and Section 18 of the Revised Rule onSummary Procedure. However, the private respondents, realizing the weakness of their


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position under P.D. No. 1508 since they did refer their grievances to what might be awrong forum under the decree, changed tack. In their Comment, they assert that on 20April 1993 Atayde "filed a complaint against petitioner before the barangay council ofBarangay Valenzuela, Makati, in compliance with the requirement of the KatarungangPambarangay Law under the Local Government Code."Yet, in a deliberate effort to becunning or shrewd, which is condemnable for it disregards the virtue of candor, they

assert that the said law is not applicable to their cases before the court a quo because(a) the petitioner and respondent Atayde are not residents of barangays in the same cityor municipality; (b) the law does not apply when the action, as in the said cases, mayotherwise be barred by the statute of limitations; and (c) even assuming that the lawapplies insofar as Atayde is concerned, she has substantially complied with it.In view ofthe private respondents' failure to appear at the first scheduled mediation on 28 April1993 for which the mediation was reset to 26 May 1993, no complaint for slight physicalinjuries could be validly filed with the MTC of Makati at any time before such date. Thefiling then of Criminal Cases Nos. 145233 and 145234 with the said court on 11 May1993 was premature and, pursuant to paragraph (a), Section 412 of the LocalGovernment Code, respondent Judge Contreras should have granted the motion todismiss the criminal cases.

Moreover, having brought the dispute before the lupon of barangay Valenzuela, Makati,

the private respondents are estopped from disavowing the authority of the body whichthey themselves had sought. Their act of trifling with the authority of the lupon byunjustifiably failing to attend the scheduled mediation hearings and instead filing thecomplaint right away with the trial court cannot be countenanced for to do so wouldwreak havoc on the barangay conciliation system.

Granting arguendo that the petitioner did inflict the alleged physical injuries, the offense

for which she may be liab

locgov comp9

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