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SUPERVISION OVER, AND DISCIPLINE OF, LOCAL OFFICIALS Republic of the Philippines SUPREME COURT EN BANC G.R. NO. 154098 July 27, 2005 JOSE C. MIRANDA, Petitioners, vs. HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, in his capacity as Secretary of the DILG, * and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela, Respondents. D E C I S I O N PUNO, J.: First, the facts. The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. 1 Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312. 2 In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the Ombudsman’s preventive suspension order: (a) issued a memorandum addressed to Navarro advising her that he was assuming his position as City Mayor; 3 (b) gave directives to the heads of offices and other employees; 4 (c) issued Office Order No. 11-021 which authorized certain persons to start work; 5 and (d) insisted on performing the functions and duties of Mayor despite Navarrro’s requests to desist from doing so without a valid court order and in spite of the order of Department of Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from reassuming the position. 6 Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code (RPC). 7 In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith. 8 He contended that under Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60 days. 9 He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same. 10 Notably, Mayor Miranda’s counter-affidavit also stated that he left the mayoralty post after "coercion" by the Philippine National Police. 11 On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a reinvestigation of the case in light of the manifestations made by prosecution and defense counsel. 12 After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal of the case in a Resolution dated 14 September 2000. 13 Coquia held that Miranda reassumed his office in "good faith" and on "mistake of fact" due to the "difficult questions of law" involved. 14 Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia’s resolution to the Ombudsman’s Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquia’s findings and recommended the filing of the case against Mayor Miranda. 15 He pointed out that Mayor Miranda’s invocation of good faith was belied by the fact that he received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable and that he should serve out its remaining period. 16 He further noted that Miranda violated the orders of both the Ombudsman and the DILG. 17 Ombudsman Desierto adopted the Chief Legal Counsel’s recommendation, 18 and the case was re-raffled to Special Prosecution Officer Evelyn T. Lucero.Subsequently, the

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POLITICAL LAW REVIEW, POLI, COMPILATION OF MUNCIPAL CORPORATIONS CASES, UST,

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Page 1: MUNICIPAL CORP CASES

SUPERVISION OVER, AND DISCIPLINE OF, LOCAL OFFICIALS

Republic of the Philippines SUPREME COURT

EN BANC

G.R. NO. 154098 July 27, 2005

JOSE C. MIRANDA, Petitioners, vs. HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, in his capacity as Secretary of the DILG,* and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela, Respondents.

D E C I S I O N

PUNO, J.:

First, the facts.

The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees.1 Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312.2 In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the Ombudsman’s preventive suspension order: (a) issued a memorandum addressed to Navarro advising her that he was assuming his position as City Mayor;3 (b) gave directives to the heads of offices and other employees;4 (c) issued Office Order No. 11-021 which authorized certain persons to start work;5 and (d) insisted on performing the functions and duties of Mayor despite Navarrro’s requests to desist from doing so without a valid court order and in spite of the order of Department of Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from reassuming the position.6Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code (RPC).7

In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith.8 He contended that under Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60 days.9 He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same.10 Notably, Mayor Miranda’s counter-affidavit also stated that he left the mayoralty post after "coercion" by the Philippine National Police.11

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a reinvestigation of the case in light of the manifestations made by prosecution and defense counsel.12 After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal of the case in a Resolution dated 14 September 2000.13 Coquia held that Miranda reassumed his office in "good faith" and on "mistake of fact" due to the "difficult questions of law" involved.14

Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia’s resolution to the Ombudsman’s Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquia’s findings and recommended the filing of the case against Mayor Miranda.15 He pointed out that Mayor Miranda’s invocation of good faith was belied by the fact that he received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable and that he should serve out its remaining period.16 He further noted that Miranda violated the orders of both the Ombudsman and the DILG.17 Ombudsman Desierto adopted the Chief Legal Counsel’s recommendation,18 and the case was re-raffled to Special Prosecution Officer Evelyn T. Lucero.Subsequently, the

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prosecution filed an amended Information with the Sandiganbayan,19 to which the petitioner interposed a negative plea.20

On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to suspend Mayor Miranda pendente lite based on Section 13 of Republic Act No. 3019 (R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.21 Miranda opposed the motion on the ground that the offense of usurpation of authority or official functions under Article 177 of the RPC is not embraced by Section 13 of R.A. No. 3019 which only contemplates offenses enumerated under R.A. No. 3019, Title VII, Book II of the RPC or which involve "fraud upon government or public funds or property."22

In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor Miranda from office for 90 days.23 The anti-graft court held that a violation of Article 177 of the RPC involves fraud "which in a general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another."24 It further ruled that Miranda’s act fell within the catch-all provision "x x x or for any offense involving fraud upon government."25 Miranda’s motion for reconsideration was denied in the Sandiganbayan’s Resolution dated 17 June 2002.26 Hence, the present petition assailing the Sandiganbayan’s orders of preventive suspension. The petitioner contends that the Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground not authorized by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts involving public funds or property; and (2) whether the crime of usurpation of authority or official functions involves "fraud upon government or public funds or property" found in Section 13 of R.A. No. 3019.

We rule in the negative.

First. Section 13 of R.A. No. 3019, as amended, provides:

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

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

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase "any offense involving fraud upon government or public funds or property" is clear and categorical. To limit the use of "government" as an adjective that qualifies "funds" is baseless. The word "public" precedes "funds" and distinguishes the same from private funds. To qualify further "public funds" as "government" funds, as petitioner claims is the law’s intent, is plainly superfluous. We are bound by the rule that a statute should be construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own officials.

Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioner’s act fell within the catch-all provision "x x x or for any offense involving fraud upon government. The term "fraud" is defined, viz.:

An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding27

It is obvious to the eyes that the phrase "fraud upon government" means "any instance or act of trickery or deceit against the government." It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase "any offense involving . . . public funds or property." It ought to follow that "fraud

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upon government" was committed when the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position.

The dissent opines that fraud upon government is not necessarily an essential element of the crime of usurpation of authority. The submission may be correct as a general proposition but general propositions hardly decide a case. In the case at bar, the issue is whether the alleged acts of usurpation of authority committed by the petitioner involve "fraud upon government or public funds or property" as the term is understood under Section 13 of R.A. No. 3019. In ruling in the affirmative, the Sandiganbayan held:

Let us take a look at the acts complained of as alleged in the Amended Information dated July 27, 2001:

x x x the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension did then and there, willfully, unlawfully and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the City Government and perform acts pertaining to an office to which he knowingly was deprived of.

Moreover, in private complainant Amelita S. Navarro’s Affidavit of Complaint dated November 26, 1997, she said: "x x x, he proceeded to his office and started giving directives to the various heads of office and other employees, the unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government."

Accused’s acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office. This actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision "x x x or for any offense involving fraud upon government x x x."

Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that "x x x under Section 13 of the Anti-Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the Information x x x." In fact, as early as 1984 in the case ofBayot v. Sandiganbayan, 128 SCRA 383, the Honorable Supreme Court speaking thru Justice Relova said:

Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as a matter of course. There are no ifs and buts about it. x x x

After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a negative plea thereto thereby tacitly acquiescing to the validity of the said Information.

There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion to Suspend Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be accorded affirmative relief.28 (Citations omitted)

In denying petitioner’s Motion for Reconsideration, the Sandiganbayan further held:

Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official Function) of the Revised Penal Code, which is the charge against herein accused, does not fall under the catchall provision of Section 13 of Republic Act No. 3019 "x x x or for any offense involving fraud upon government or public funds or property x x x." He said that the acts complained of as alleged in the Information do not constitute fraud upon government or public fund or property.

Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite. The accused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2) public funds or property. This is precisely availing in the case at bar. The Information in

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herein case, says: "x x x accused x x x assume the duties and functions of the Office of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of." When accused-mayor appointed persons in various positions, he indirectly dealt with the city’s funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the city’s funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city.

Moreover, as the prosecution said, "when accused Miranda, willfully and knowingly, during the effectivity of his suspension barged into the City Hall, issued orders and directives and performed functions as City Mayor, he was sending the unwritten yet visible message that he was authorized to do and function as such. x x x." We hold this as a fraud upon government resulting in the chaos or confusion albeit temporary, as the employees would be in a quandary whom to follow or obey.

Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the prosecution, there is no cogent reason for this Court to depart from its previous ruling. Further, considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby denied.

Accordingly, the Motion for Reconsideration is denied for lack of merit.29

This Court finds no reason to disagree with the Sandiganbayan. Its conclusions are amply supported by the record. Additionally, the issue of whether petitioner committed fraud upon the government or public funds or property is essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion.30

The dissenting opinion, however, says there was no fraud. It holds that "it would be fraud of public funds if these public officials just collected their salaries without rendering service to the government." It further asserts that "fraud upon government" must be read so as to require that malversation of funds was committed.31 This is acomplete volte face from its claim that Section 13 of R.A. No. 3019 covers two types of offenses: (1) any offense involving fraud upon the government; and (2) any offense involving public funds or property.32 What is more, adopting the dissenting opinion’s line of reasoning would render superfluous the phrase "fraud upon government" as malversation is subsumed by "any offense involving public funds or property."

Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that he was no longer under preventive suspension. Petitioner’s pretense cannot stand scrutiny.Petitioner’s own affidavit states:33

8. That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number of ONE HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for under the Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume my office as the duly elected City Mayor of Santiago City;

9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the same date, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office;

10. For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly harassed and threatened me and my constituents with bodily harm using the strong arm of the law thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from performing my duties and functions to avoid any possible unfortunate incident that may happen to me and any constituents; x x x.34 (Emphases supplied)

By petitioner’s own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This

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contradicts his assertion that he immediately complied with the memorandum of Undersecretary Sanchez.35Petitioner cannot escape from his own admission.

To be sure, petitioner’s honest belief defense is old hat. In the 1956 case of People v. Hilvano,36 the facts are:

When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning of September 22, 1952, he designated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano refused to yield, arguing that he had been designated by the Mayor. Whereupon the Vice-Mayor sent a telegram to the Executive Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of the Revised Administrative Code it was the Vice-Mayor who should discharge the duties of the Mayor during the latter’s temporary absence. Shown this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the office. Notwithstanding such opinion which was exhibited to him – Hilvano declined to vacate the post, which he held for about a month, appointing some policemen, solemnizing marriages and collecting the corresponding salary for mayor.

Wherefore Francisco Hilvano was prosecuted – and after trial – was convicted of usurpation of public authority under Republic Act No. 10. He appealed in due time.

In rejecting the defense of the accused Hilvano, we ruled:37

There is no excuse for defendant-appellant. In the beginning he might have pleaded good faith, invoking the designation by the Mayor; but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the position. He was rightfully convicted.

Petitioner’s excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of law, they should have assailed the validity of the order of suspension in court instead of taking the law into their own hands.

Fourth. It should be stressed that petitioner was suspended by the Sandiganbayan. Under Section 13 of R.A. No. 3019, this suspension is mandatory if the information is sufficient. Understandably, the dissent argues that the Amended Information is insufficient in form as it should have "expressly and clearly stated that Miranda re-assumed office to defraud the government or that in re-assuming office Miranda committed acts that defrauded the government"38 and that it is improper to take into account the petitioner’s admissions in his affidavit for this purpose.

With due respect, the dissent is way off-line. The records will show that petitioner did not file a motion to quash the information or a motion for bill of particulars before pleading to the information. It is basic that entering a plea waives any objection the petitioner may have to the validity of the information except on the following grounds: (1) the information charges no offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the offense has been extinguished; and (4) double jeopardy has attached.39 Objections to the sufficiency of the allegations in the Amended Information do not fall among the exceptions to the rule. They fall under the objection that the information "does not conform substantially to the prescribed form."40 Needless to state, the petitioner has by his acts acquiesced to the validity and sufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that the petitioner has been deprived of his constitutional right to be apprised of the nature and cause of the accusation against him. Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it is the petitioner who should raise this objection in amotion to quash or motion for bill of particulars before entering his plea.41 The irregular procedure followed by the dissent would encourage the pernicious practice of "sandbagging" where counsel foregoes raising a pleading defect before trial where it can be easily corrected only to raise the defect later in the hope of obtaining an arrest of judgment or new trial from a sympathetic magistrate.42 It is precisely this evil that is addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure.

Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a timely fashion by the petitioner, the dissenting opinion’s arguments still do not convince. The validity or sufficiency of allegations in

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an information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz:

SECTION 9. Cause of the Accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.43

The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. The raison d’etre of the rule is to enable the accused to suitably prepare his defense.44 A perusal of the Amended Information will bear out that it has hurdled this legal bar. We quote its contents:

That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, willfully, unlawfully, and knowingly and under pretense of official position, assume the duties and function of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of.45

Using this test, it cannot be said that the Amended Information failed to properly apprise the petitioner of the charge against him. The information charged the petitioner with assuming the duties and performing acts pertaining to the office of Mayor willfully, unlawfully and knowingly under the pretense of official position. Moreover, it states some of the specific acts which constitute usurpation of official functions, namely, issuing directives and memoranda and appointing certain persons to various positions in the city government. These allegations are clear enough for a layman to understand. Indeed, even the petitioner does not complain about their ambiguity. Only the dissent does.

Fifth. The dissenting opinion also contends that the Ombudsman’s authority to preventively suspend local elective officials for 6 months is limited by Section 63(b) of the Local Government Code. Under the latter law, petitioner can only be suspended for a maximum period of 60 days. It then jumps to the conclusion that petitioner could not have usurped authority because he reassumed office after 60 days.46

With due respect, the dissent fails to focus on the proper issue. The issue before this Court is whether theSandiganbayan committed a grave abuse of discretion in suspending the petitioner for 90 days. The validity of the Ombudsman’s order of preventive suspension of the petitioner for 6 months is not the one assailed in the case at bar. The irrelevance of the suspension order of the Ombudsman notwithstanding, the reliance of the dissenting opinion on Garcia v. Mojica is inapropos. In Garcia, we held:

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted.

On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner.We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him.

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We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. 47 (Emphases supplied)

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the Ombudsman. In fact, the Court expressly stated that its decision was rendered without subscribing to the petitioner’s claim that the Local Government Code had been violated. In fine, the Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive suspension since it was admitted that the documents required were already obtained by 19 July 1999 or 24 days after the imposition of the preventive suspension. Therefore, the purpose for which the suspension was imposed was already served.

The dissenting opinion also cites the case of Rios v. Sandiganbayan48 as basis for assailing the Ombudsman’s order of preventive suspension. Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also worth noting that Rios cited Section 63 of the Local Government Code as its legal basis. This provision provides:

SECTION 63. Preventive Suspension. -

(a) Preventive suspension may be imposed:

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

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

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

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

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.

It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution. This view was embraced by the Court in Hagad v. Gozo-Dadole49 and Garcia v. Mojica.50 In Hagad, we held:

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Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.51

In the same vein, we made the following observations in Garcia, viz.:

Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. x x x

It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern differently." 52 (Emphases supplied)

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that Senator Pimentel53 explained during the Senate deliberations that the purpose of Section 63 of the Code isto prevent the abuse of the power of preventive suspension by members of the executive branch, to wit:

The President.54 I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him - -

Senator Pimentel. That is true, Mr. President.

The President. - - contending that under the new Constitution, even the President does not have that right.

Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President.

The President. Can that be done under this new Code?

Senator Pimentel. Under our proposal, that can no longer be done, Mr. President.55

Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government.56 The Ombudsman’s power of preventive suspension is governed by Republic Act No. 6770,57otherwise known as "The Ombudsman Act of 1989," which provides:

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

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.58 (Emphasis supplied)

The six-month period of preventive suspension imposed by the Ombudsman59 was indubitably within the limit provided by its enabling law. This enabling law has not been modified by the legislature.

The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping the limit for executive officials at sixty days violates the constitutional proscription against equal protection of the law. In essence, it avers that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy,60 fixed term of office61 and classification as an impeachable officer.62 This much was recognized by this Court in the earlier cited case of Garcia v. Mojica.63Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.64

The dissenting opinion finally points out the possibility of abuse by the Ombudsman in imposing preventive suspensions. The short reply is that all powers are susceptible of abuse but that is no reason to strike down the grant of power. Suffice it to say that the proper remedies against abuse in the exercise of power are a petition forcertiorari under Rule 65 of the 1997 Rules of Civil Procedure or amendment of the Ombudsman’s enabling law by the legislature, not a contortionist statutory interpretation by this Court.

IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing that the Sandiganbayan gravely abused its discretion in issuing its Resolution of 4 February 2002, preventively suspending the petitioner for 90 days.

SO ORDERED.

REYNATO S. PUNO

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

ARTEMIO V. PANGANIBAN LEONARDO A. QUISUMBING

Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

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Associate Justice Associate Justice

(on official leave)

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

CANCIO C. GARCIA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.

Chief Justice

Footnotes

* On official leave.

1 Rollo, pp. 79, 85.

2 Id., pp. 76-78.

3 Id., p. 78.

4 Id., p. 77.

5 Ibid.

6 Id., pp. 77-78.

7 Id., p. 78.

8 Id., p. 81.

9 Ibid.

10 Id., pp. 10-11.

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11 Id., pp. 81-82.

12 Id., p. 88.

13 Id., pp. 89-95.

14 Ibid.

15 Id., pp. 96-97.

16 Id., p. 96.

17 Ibid.

18 Id., p. 97.

19 Id., pp. 100-102.

20 Rollo, pp. 36-37.

21 Id., pp. 43-45.

22 Id., pp. 46-48.

23 Id., pp. 37-38.

24 Id., p. 36.

25 Ibid.

26 Id., pp. 41-42.

27 Webster’s Third New International Dictionary of the English Language Unabridged, p. 904 (1993).

28 Rollo, pp. 36-37.

29 Rollo, pp. 40-41.

30 Elks Club v. Rovira, 80 Phil. 272 (1948).

31 Dissenting Opinion, p. 16.

32 Dissenting Opinion, pp. 9-10.

33 Rollo, pp. 79, 81; Petitioner’s "Counter-Affidavit," pp. 1, 3.

34 Rollo, pp. 81-82; Petitioner’s "Counter-Affidavit," pp. 3-4.

35 Rollo, pp. 10-11; Petitioner’s "Petition," pp. 8-9.

36 99 Phil. 655-656.

37 Id., pp. 657-658.

38 Dissenting Opinion, p. 16.

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39 The Revised Rules of Criminal Procedure, Rule 117, Section 9 (2000); The rule provides as follows:

SECTION 9. Failure to Move to Quash or to Allege Any Ground Therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.

40 The Revised Rules of Criminal Procedure, Rule 117, Section 3(e) (2000).

41 The Revised Rules of Criminal Procedure, Rule 117, Sections 1, 3 and 9, and Rule 116, Section 9 (2000).

42 Kamisar, Israel, and LaFave, Modern Criminal Procedure – Cases, Comments and Questions, pp. 1037-1038 (8th ed).

43 The Revised Rules of Criminal Procedure, Rule 110, Section 9 (2000).

44 Matilde, Jr. v. Jabson, 68 SCRA 456 (1975).

45 Rollo, p. 127.

46 Dissenting Opinion, p. 22.

47 Garcia v. Mojica, 314 SCRA 207, 223-224 (1999).

48 279 SCRA 581 (1997).

49 251 SCRA 242 (1995).

50 314 SCRA 207 (1999).

51 Hagad v. Gozo-Dadole, 251 SCRA 242, 253-254 (1995).

52 Garcia v. Mojica, 314 SCRA 207 (1999).

53 Principal author of the Local Government Code.

54 Senate President Jovito R. Salonga.

55 Record of the Senate, Vol. 1, No. 3, pp. 68-69 (1990).

56 Const., Article XI, Sections 5, 11-14 (1987).

57 Garcia v. Mojica, 314 SCRA 207 (1999); Castillo-Co v. Barbers, 290 SCRA 717 (1998); Hagad v. Gozo-Dadole, 251 SCRA 242 (1995); Lastimosa v. Vasquez, 243 SCRA 497 (1995).

58 Republic Act No. 6770, Section 24 (1989).

59 Rollo, pp. 79, 85.

60 Const., Article XI, Section 14 (1987).

61 Const., Article XI, Section 11 (1987).

62 Const., Article XI, Sections 2-3 (1987).

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63 314 SCRA 207 (1999).

64 Ibid.

ORGANIZATIONAL STRUCTURES

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 161081 May 10, 2005

RAMON M. ATIENZA, in his capacity as Vice-Governor of the Province of Occidental Mindoro, petitioner, vs. JOSE T. VILLAROSA, in his capacity as Governor of the Province of Occidental Mindoro, respondent.

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by Ramon M. Atienza, in his capacity as Vice-Governor of the Province of Occidental Mindoro, seeking to reverse and set aside the Decision1 dated November 28, 2003 of the Court of Appeals in CA-G.R. SP No. 72069. The assailed decision dismissed the petition for prohibition under Rule 65 of the Rules of Court filed by petitioner Atienza which had sought to enjoin the implementation of the Memoranda dated June 25, 2002 and July 1, 2002 issued by Jose T. Villarosa, Governor of the same province.

The present case arose from the following undisputed facts:

Petitioner Atienza and respondent Villarosa were the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro. On June 26, 2002, the petitioner Vice-Governor received the Memorandum dated June 25, 2002 issued by the respondent Governor concerning the "AUTHORITY TO SIGN PURCHASE ORDERS OF SUPPLIES, MATERIALS, EQUIPMENT[S], INCLUDING FUEL, REPAIRS AND MAINTENANCE OF THESANGGUNIANG PANLALAWIGAN." The said memorandum reads:

For proper coordination and to ensure efficient and effective local government administration particularly on matters pertaining to supply and property management, effective immediately, all Purchase Orders issued in connection with the procurement of supplies, materials and equipment[s] including fuel, repairs and maintenance needed in the transaction of public business or in the pursuit of any undertaking, project or activity of the Sangguniang Panlalawigan, this province, shall be approved by the undersigned in his capacity as the local chief executive of the province.

The provision of DILG Opinion No. 148-1993 which states that the authority to sign Purchase Orders of supplies, materials and equipment[s] of the Sanggunian belongs to the local chief executive, serves as basis of this memorandum.

For strict compliance.2

In reply to the above memorandum, the petitioner Vice-Governor wrote the respondent Governor stating that:

We are of the opinion that … purchase orders for supplies, materials and equipment are included under those as authorized for signature by the Vice-chief executive of the Sanggunian on the basis of the DILG Opinion No. 96-1995 as affirmed by the COA Opinions on June 28, April 11 and February 9, 1994 and coursing it to the Governor for his approval is no longer necessary, the fact that [Secs.] 466 and 468, RA

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7160 already provides for the separation of powers between the executive and legislative. Such authority even include everything necessary for the legislative research program of the Sanggunian.3

Unimpressed, the respondent Governor issued the Memorandum dated July 1, 2002 relating to the "TERMINATION OF CONTRACT OF SERVICES OF CASUAL/JOB ORDER EMPLOYEES AND REAPPOINTMENT OF THE RESPECTIVE RECOMMENDEES." The said memorandum reads:

For faithful and appropriate enforcement and execution of laws and issuances and to promote efficiency in the government service, effective immediately, all existing contract of employment – casual/job order basis and reappointment of the recommendees – entered into by Vice-Governor Ramon M. Atienza are hereby terminated for being unauthorized.

Aside from being signed by the unauthorized signatory, the following facts regarding the appointments were considered:

1. The appointment of 28 clerks – on top of existing permanent employees – is a clear manifestation of an excessive and bloated bureaucracy;

2. The appointment of an X-ray Technician detailed at the Provincial Health Office and some clerks detailed at various offices in the province were not proper to be assigned by the Vice-Governor;

3. The appointment of 30 messengers, utility workers and drivers ran counter to COA Opinion as cited in the letter of the undersigned dated 28 June 2002, addressed to the Vice-Governor.

However, in order to accommodate the Vice-Governor and the members of the Sangguniang Panlalawigan, the undersigned, in his capacity as the local chief executive of the province, will allow four (4) casual/job order employees to be assigned to the Vice-Governor and one (1) casual/job order employee to be assigned to each member of the Sangguniang Panlalawigan.

The Vice-Governor and all the Sanggunian Members are hereby directed to submit immediately the names of their recommendees to the undersigned for immediate approval of their respective appointments.

Please be guided accordingly.4

On July 3, 2002, the respondent Governor issued another Memorandum regarding the "ENFORCIBILITY (sic) OF PREVIOUS MEMORANDA ISSUED ON JUNE 20, 26 AND JULY 1, 2002." It provides that:

Please be properly advised that the Memoranda dated June 20, 26 and July 1, 2002 issued by the undersigned regarding the issuance of permit to travel and authority to sign Purchase Orders of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan, is to be strictly adhered to for compliance.

Likewise for strict compliance is the Memorandum dated July 1, 2002 with reference to the Cancellation of the Appointment of Casual/Job Order Employees of the Sangguniang Panlalawigan Members/Office of the Vice-Governor previously signed by Vice-Governor Ramon M. Atienza.

Please be guided accordingly.5

In his Letter dated July 9, 2002, the petitioner Vice-Governor invoked the principle of separation of powers as applied to the local government units, i.e., the respondent, as the Governor, the head of the executive branch, and the petitioner, as the Vice-Governor, the head of the legislative branch, which is the Sangguniang Panlalawigan. The petitioner Vice-Governor reiterated his request for the respondent to make a "deeper study" on the matter before implementing his memoranda. The request, however, went unheeded as the respondent Governor insisted on obliging the department heads of the provincial government to comply with the memoranda.

The petitioner Vice-Governor thus filed with the Court of Appeals the petition for prohibition assailing as having been issued with grave abuse of discretion the respondent Governor's Memoranda dated June 25, 2002 and July 1, 2002.

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The petitioner Vice-Governor claimed that these memoranda excluded him from the use and enjoyment of his office in violation of the pertinent provisions of Republic Act No. 7160, or the Local Government Code of 1991, and its implementing rules and regulations. It was prayed that the respondent Governor be enjoined from implementing the assailed memoranda.

The appellate court, in its Decision dated November 28, 2003, dismissed the petition for prohibition. Citing Section 3446 of Rep. Act No. 7160, the CA upheld the authority of the respondent Governor to issue the Memorandum dated June 25, 2002 as it recognized his authority to approve the purchase orders. The said provision provides in part that "approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed."

The CA explained that Section 466(a)(1)7 of the same Code, relied upon by the petitioner Vice-Governor, speaks of the authority of the Vice-Governor to sign "all warrants drawn on the public treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan." In declaring this provision inapplicable, the CA reasoned that the approval of purchase orders is different from the power of the Vice-Governor to sign warrants drawn against the public treasury.

Section 3618 was, likewise, held to be inapplicable ratiocinating, thus:

[R]equisitioning, which is provided under Section 361 of RA 7160, is the act of requiring that something be furnished. In the procurement function, it is the submission of written requests for supplies and materials and the like. It could be inferred that, in the scheme of things, approval of purchase requests is different from approval of purchase orders. Thus, the inapplicability of Section 361.

Anent the Memorandum dated July 1, 2002, the CA ruled that the issue on whether it could be enjoined had already been rendered moot and academic. The CA pointed out that the subject of the said memorandum could no longer be enjoined or restrained as the termination of the employees had already been effected. It opined that where the act sought to be enjoined in the prohibition proceedings had already been performed and there is nothing more to restrain, the case is already moot and academic.

The petitioner Vice-Governor now seeks recourse to this Court alleging that the appellate court committed reversible error in ruling that it is the Governor, and not the Vice-Governor, who has the authority to sign purchase orders of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan. The petitioner Vice-Governor, likewise, takes exception to the holding of the CA that the issue relating to the July 1, 2002 Memorandum had been rendered moot and academic. He points out that the appointment of casual/job order employees is exercised by the appointing authority every six months in the case of casual employees and per job order as to job order employees. Thus, while the July 1, 2002 Memorandum had already been implemented, what is being sought to be enjoined is the respondent Governor's continued usurpation of the petitioner Vice-Governor's authority to appoint the employees of the Sangguniang Panlalawiganunder the pertinent provisions of Rep. Act No. 7160.

For his part, the respondent Governor maintains that his Memoranda dated June 25, 2002 and July 1, 2002 are valid. He asserts that the approval of purchase orders is different from the power of the Vice-Governor to sign warrants drawn against the provincial treasury under Section 466(a)(1) of Rep. Act No. 7160. Rather, he insists on the application of the last clause in Section 344 which states that the approval of the disbursement by the local chief executive is required whenever local funds are disbursed.

The respondent Governor likewise defends the validity of the Memorandum dated July 1, 2002 stating that it was issued upon finding that the petitioner Vice-Governor appointed, among others, 28 clerks on top of the existing permanent employees resulting in an excessive and bloated bureaucracy. He concedes the appointing power of the Vice-Governor but submits that this is limited to the employees of the Sangguniang Panlalawigan and that he is not authorized to appoint officials and employees of the Office of the Vice-Governor.

As correctly presented by the appellate court, the issues for resolution in this case are:

A. Who between the petitioner and the respondent is authorized to approve purchase orders issued in connection with the procurement of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan?

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B. Does respondent Villarosa, as local chief executive, have the authority to terminate or cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan Members and the Office of the Vice-Governor?9

Before resolving the foregoing issues, it is noted that petitioner Atienza and respondent Villarosa had ceased to be the Vice-Governor and Governor, respectively, of the Province of Occidental Mindoro effective June 30, 2004 when the newly-elected officials of the province took their oaths of offices. The petitioner Vice-Governor did not run for re-election during the May 2004 elections while the respondent Governor did not succeed in his re-election bid. The expiration of their terms of offices has effectively rendered the case moot. However, even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and the public.10 In this case, there is compelling reason for the Court to resolve the issues presented in order to clarify the scope of the respective powers of the Governor and Vice-Governor under the pertinent provisions of the Local Government Code of 1991.

To resolve the substantive issues presented in the instant case, it is well to recall that Rep. Act No. 7160 was enacted to give flesh to the constitutional mandate to "provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all matters relating to the organization and operation of the local units."11

In this connection, the provisions of Rep. Act No. 7160 are anchored on principles that give effect to decentralization. Among these principles are: [t]here shall be an effective allocation among the different local government units of their respective powers, functions, responsibilities, and resources; [t]here shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities; [p]rovinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions; and [e]ffective mechanisms for ensuring the accountability of local government units to their respective constituents shall be strengthened in order to upgrade continually the quality of local leadership.12

With these guideposts, the Court shall now address the issue on who between the Governor and Vice-Governor is authorized to approve purchase orders issued in connection with the procurement of supplies, materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan.

We hold that it is the Vice-Governor who has such authority.

Under Rep. Act No. 7160, local legislative power for the province is exercised by the Sangguniang Panlalawigan13and the Vice-Governor is its presiding officer.14 Being vested with legislative powers, the Sangguniang Panlalawigan enacts ordinances, resolutions and appropriates funds for the general welfare of the province in accordance with the provisions of Rep. Act No. 7160.15 The same statute vests upon the Vice-Governor the power to:

(1) Be the presiding officer of the sangguniang panlalawigan and sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the sangguniang panlalawigan. 16

Further, Section 344 provides:

Sec. 344. Certification on, and Approval of, Vouchers. – No money shall be disbursed unless the local budget officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountant has obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose. Vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned, as to validity, propriety and legality of the claim involved. Except in cases of disbursements involving regularly recurring administrative expenses such as payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services, remittances to government creditor agencies such as the GSIS, SSS, LBP, DBP, National Printing Office, Procurement Service of the DBM and others, approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed.

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In cases of special or trust funds, disbursements shall be approved by the administrator of the fund.

In case of temporary absence or incapacity of the department head or chief of office, the officer next-in-rank shall automatically perform his function and he shall be fully responsible therefor.

Reliance by the CA on the clause "approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed" of the above section (Section 344) to rule that it is the Governor who has the authority to approve purchase orders for the supplies, materials or equipment for the operation of theSangguniang Panlalawigan is misplaced. This clause cannot prevail over the more specific clause of the same provision which provides that "vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned." The Vice-Governor, as the presiding officer of the Sangguniang Panlalawigan, has administrative control of the funds of the said body. Accordingly, it is the Vice-Governor who has the authority to approve disbursement vouchers for expenditures appropriated for the operation of the Sangguniang Panlalawigan.

On this point, Section 39 of the Manual on the New Government Accounting System for Local Government Units, prepared by the Commission on Audit (COA), is instructive:

Sec. 39. Approval of Disbursements. – Approval of disbursements by the Local Chief Executive (LCE) himself shall be required whenever local funds are disbursed, except for regularly recurring administrative expenses such as: payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services, remittances to government creditor agencies such as GSIS, BIR, PHILHEALTH, LBP, DBP, NPO, PS of the DBM and others, where the authority to approve may be delegated. Disbursement vouchers for expenditures appropriated for the operation of the Sanggunian shall be approved by the provincial Vice Governor, the city Vice-Mayor or the municipal Vice-Mayor, as the case may be.17

While Rep. Act No. 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily includes the authority to approve purchase orders covering the same applying the doctrine of necessary implication. This doctrine is explained, thus:

No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding of events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication. The doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege. This is so because the greater includes the lesser, expressed in the maxim, in eo plus sit, simper inest et minus.18

Warrants are "order[s] directing the treasurer of the municipality to pay money out of funds in city treasury which are or may become available for purpose specified to designated person[s]."19 Warrants of a municipal corporation are generally orders payable when funds are found. They are issued for the payment of general municipal debts and expenses subject to the rule that they shall be paid in the order of presentation.20

The ordinary meaning of "voucher" is a document which shows that services have been performed or expenses incurred. It covers any acquittance or receipt discharging the person or evidencing payment by him. When used in connection with disbursement of money, it implies some instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment.21

Purchase order, on the other hand, is "an authorization by the issuing party for the recipient to provide materials or services for which issuing party agrees to pay; it is an offer to buy which becomes binding when those things ordered have been provided."22

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When an authorized person approves a disbursement voucher, he certifies to the correctness of the entries therein, among others: that the expenses incurred were necessary and lawful, the supporting documents are complete and the availability of cash therefor. Further, the person who performed the services or delivered the supplies, materials or equipment is entitled to payment.23 On the other hand, the terms and conditions for the procurement of supplies, materials or equipment, in particular, are contained in a purchase order. The tenor of a purchase order basically directs the supplier to deliver the articles enumerated and subject to the terms and conditions specified therein.24 Hence, the express authority to approve disbursement vouchers and, in effect, authorize the payment of money claims for supplies, materials or equipment, necessarily includes the authority to approve purchase orders to cause the delivery of the said supplies, materials or equipment.

Since it is the Vice-Governor who approves disbursement vouchers and approves the payment for the procurement of the supplies, materials and equipment needed for the operation of the Sangguniang Panlalawigan, then he also has the authority to approve the purchase orders to cause the delivery of the said supplies, materials or equipment.

Indeed, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto is greater and includes the authority to approve purchase orders for the procurement of the supplies, materials and equipment necessary for the operation of the Sangguniang Panlalawigan.

Anent the second issue, the appellate court likewise committed reversible error in holding that the implementation of the Memorandum dated July 1, 2002 had rendered the petition moot and academic. It is recognized that courts will decide a question otherwise moot and academic if it is "capable of repetition yet evading review."25 Even if the employees whose contractual or job order employment had been terminated by the implementation of the July 1, 2002 Memorandum may no longer be reinstated, still, similar memoranda may be issued by other local chief executives. Hence, it behooves the Court to resolve whether the Governor has the authority to terminate or cancel the appointments of casual/job order employees of the Sangguniang Panlalawigan and the Office of the Vice-Governor.

We hold that the Governor, with respect to the appointment of the officials and employees of the Sangguniang Panlalawigan, has no such authority.

Among the powers granted to the Governor under Section 465 of Rep. Act No. 7160 are:

Sec. 465. The Chief Executive: Powers, Duties, Functions and Compensation.– (a) The provincial governor, as the chief executive of the provincial government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the provincial governor shall:

(v) Appoint all officials and employees whose salaries and wages are wholly or mainly paid out of provincial funds and whose appointments are not otherwise provided for in this Code, as well as those he may be authorized by law to appoint.

On the other hand, Section 466 vests on the Vice-Governor the power to, among others:

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlalawigan, except those whose manner of appointment is specifically provided in this Code.

Thus, while the Governor has the authority to appoint officials and employees whose salaries are paid out of the provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such authority is lodged with the Vice-Governor. In the same manner, the authority to appoint casual and job order employees of the Sangguniang Panlalawigan belongs to the Vice-Governor.

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The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang Panlalawigan is anchored on the fact that the salaries of these employees are derived from the appropriation specifically for the said local legislative body. Indeed, the budget source of their salaries is what sets the employees and officials of the Sangguniang Panlalawigan apart from the other employees and officials of the province. Accordingly, the appointing power of the Vice-Governor is limited to those employees of the Sangguniang Panlalawigan, as well as those of the Office of the Vice-Governor, whose salaries are paid out of the funds appropriated for the Sangguniang Panlalawigan. As a corollary, if the salary of an employee or official is charged against the provincial funds, even if this employee reports to the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint the said employee pursuant to Section 465(b)(v) of Rep. Act No. 7160.

However, in this case, it does not appear whether the contractual/job order employees, whose appointments were terminated or cancelled by the Memorandum dated July 1, 2002 issued by the respondent Governor, were paid out of the provincial funds or the funds of the Sangguniang Panlalawigan. Nonetheless, the validity of the said memorandum cannot be upheld because it absolutely prohibited the respondent Vice-Governor from exercising his authority to appoint the employees, whether regular or contractual/job order, of the Sangguniang Panlalawiganand restricted such authority to one of recommendatory nature only.26 This clearly constituted an encroachment on the appointment power of the respondent Vice- Governor under Section 466(a)(2) of Rep. Act No. 7160.

At this juncture, it is well to note that under Batas Pambansa Blg. 337, the Local Government Code prior to Rep. Act No. 7160, the Governor was the presiding officer of the Sangguniang Panlalawigan:

Sec. 205. Composition. (1) Each provincial government shall have a provincial legislature hereinafter known as the sangguniang panlalawigan, upon which shall be vested the provincial legislative power.

(2) The sangguniang panlalawigan shall be composed of the governor, vice-governor, elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangayprovincial federation who shall be appointed by the President of the Philippines.

Sec. 206. Sessions. –

(3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall not be entitled to vote except in case of a tie.

With Rep. Act No. 7160, the union of legislative and executive powers in the office of the local chief executive under the BP Blg. 337 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.27

Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160, explained that "the Vice-Governor is now the presiding officer of the Sangguniang Panlalawigan. The City Vice-Mayor presides at meetings of the Sangguniang Panlungsod and the Municipal Vice-Mayor at the sessions of the Sangguniang Bayan. The idea is to distribute powers among elective local officials so that the legislative, which is the Sanggunian, can properly check the executive, which is the Governor or the Mayor and vice versa and exercise their functions without any undue interference from one by the other."28

The avowed intent of Rep. Act. No. 7160, therefore, is to vest on the Sangguniang Panlalawigan independence in the exercise of its legislative functions vis-a-vis the discharge by the Governor of the executive functions. The Memoranda dated June 25, 2002 and July 1, 2002 of the respondent Governor, which effectively excluded the petitioner Vice-Governor, the presiding officer of the Sangguniang Panlalawigan, from signing the purchase orders for the procurement of supplies, materials or equipment needed for the operation of the Sangguniang Panlalawigan as well as from appointing its casual and job order employees, constituted undue interference with the latter's functions. The assailed memoranda are clearly not in keeping with the intent of Rep. Act No. 7160 and their implementation should thus be permanently enjoined.

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WHEREFORE, the petition is GRANTED. The Memoranda dated June 25, 2002 and July 1, 2002 issued by respondent Governor Jose T. Villarosa are NULL AND VOID.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Puno, J., on sick leave. Panganiban, and Sandoval-Gutierrez, JJ., on official leave.

Footnotes

1 Penned by Associate Justice Amelita G. Tolentino with Associate Justices Eloy R. Bello, Jr. (retired) and Arturo D. Brion, concurring.

2 CA Rollo, p. 17.

3 Id. at 20.

4 Id. at 18.

5 Id. at 25.

6 Infra.

7 Infra.

8 The said provision reads:

Sec. 361. Approval of Requisitions. – Approval of the requisitions by the head of office or department concerned who has administrative control of the appropriation against which the proposed expenditure is chargeable is deemed sufficient, except in case of requisition for supplies to be carried in stock which shall be approved by the local chief executive concerned: Provided, That such supplies are listed or included in the annual procurement plan and the maximum quantity thereof does not exceed the estimated consumption corresponding to a programmed three-month period: Provided, further, That nothing herein contained shall be held as authorizing the purchase of furniture and equipment for stock purposes.

9 Rollo, p. 25.

10 Province of Batangas v. Romulo, G.R. No. 152774, 27 May 2004, 429 SCRA 736.

11 SECTION 3, ARTICLE X (LOCAL GOVERNMENT) OF THE 1987 CONSTITUTION.

12 Specifically paragraphs (a) (b) (e) and (j), Sec. 3.

13 Sec. 48 reads in part:

Local Legislative Power. – Local legislative power shall be exercised by the sangguniang panlalawigan for the province … .

14 Sec. 49 reads in part:

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Presiding Officer. – (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan … .

15 Sec. 468 reads in part:

Powers, Duties, Functions and Compensation. – (a) The sangguniang panlalawigan, as the legislative body of the province, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the province and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the province as provided for under Section 22 of this Code, … .

16 Sec. 466(a)(1).

17 The Accounting Policies, Vol. I.

18 Chua v. Civil Service Commission, G.R. No. 88979, 7 February 1992, 206 SCRA 65.

19 Protest of St. Louis-San Francisco Ry. Co., 11 P.2d 189.

20 Shelley v. St. Charles County Court, 21 F. 699.

21 First National Bank of Chicago v. City of Elgin, 136 Ill.App. 453.

22 Smyth Worldwide Movers, Inc. v. Little Rock Packing Co., 361 S.W.2d 534.

23 Manual on the New Government Accounting System for Local Government Units, The Accounting Books, Records, Forms and Reports, Vol. II, Annex 24.

24 Id., Annex 29.

25 Province of Batangas v. Romulo, supra.

26 See Note 4.

27 Gamboa, Jr. v. Aguirre, Jr., G.R. No. 134213, 20 July 1999, 310 SCRA 867.

28 AQUILINO PIMENTEL, THE LOCAL GOVERNMENT CODE OF 1991: THE KEY TO NATIONAL DEVELOPMENT, p. 155.

Republic of the Philippines SUPREME COURT

Manila

FIRST DIVISION

A.C. No. 5738 February 19, 2008

WILFREDO M. CATU, complainant, vs. ATTY. VICENTE G. RELLOSA, respondent.

R E S O L U T I O N

CORONA, J.:

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Complainant Wilfredo M. Catu is a co-owner of a lot1 and the building erected thereon located at 959 San Andres Street, Malate, Manila. His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu2 and Antonio Pastor3 of one of the units in the building. The latter ignored demands for them to vacate the premises. Thus, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of Manila4 where the parties reside.

Respondent, as punong barangay of Barangay 723, summoned the parties to conciliation meetings.5 When the parties failed to arrive at an amicable settlement, respondent issued a certification for the filing of the appropriate action in court.

Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered his appearance as counsel for the defendants in that case. Because of this, complainant filed the instant administrative complaint,6 claiming that respondent committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay.

In his defense, respondent claimed that one of his duties as punong barangay was to hear complaints referred to the barangay's Lupong Tagapamayapa. As such, he heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head of the Lupon, he performed his task with utmost objectivity, without bias or partiality towards any of the parties. The parties, however, were not able to amicably settle their dispute and Regina and Antonio filed the ejectment case. It was then that Elizabeth sought his legal assistance. He acceded to her request. He handled her case for free because she was financially distressed and he wanted to prevent the commission of a patent injustice against her.

The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. As there was no factual issue to thresh out, the IBP's Commission on Bar Discipline (CBD) required the parties to submit their respective position papers. After evaluating the contentions of the parties, the IBP-CBD found sufficient ground to discipline respondent.7

According to the IBP-CBD, respondent admitted that, as punong barangay, he presided over the conciliation proceedings and heard the complaint of Regina and Antonio against Elizabeth and Pastor. Subsequently, however, he represented Elizabeth and Pastor in the ejectment case filed against them by Regina and Antonio. In the course thereof, he prepared and signed pleadings including the answer with counterclaim, pre-trial brief, position paper and notice of appeal. By so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:

Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he intervened while in said service.

Furthermore, as an elective official, respondent contravened the prohibition under Section 7(b)(2) of RA 6713:8

SEC. 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official ands employee and are hereby declared to be unlawful:

xxx xxx xxx

(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:

xxx xxx xxx

(2) Engage in the private practice of profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; xxx (emphasis supplied)

According to the IBP-CBD, respondent's violation of this prohibition constituted a breach of Canon 1 of the Code of Professional Responsibility:

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CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis supplied)

For these infractions, the IBP-CBD recommended the respondent's suspension from the practice of law for one month with a stern warning that the commission of the same or similar act will be dealt with more severely.9 This was adopted and approved by the IBP Board of Governors.10

We modify the foregoing findings regarding the transgression of respondent as well as the recommendation on the imposable penalty.

Rule 6.03 of the Code of Professional Responsibility Applies Only to Former Government Lawyers

Respondent cannot be found liable for violation of Rule 6.03 of the Code of Professional Responsibility. As worded, that Rule applies only to a lawyer who has left government service and in connection "with any matter in which he intervened while in said service." In PCGG v. Sandiganbayan,11 we ruled that Rule 6.03 prohibits former government lawyers from accepting "engagement or employment in connection with any matter in which [they] had intervened while in said service."

Respondent was an incumbent punong barangay at the time he committed the act complained of. Therefore, he was not covered by that provision.

Section 90 of RA 7160, Not Section 7(b)(2) of RA 6713, Governs The Practice of Profession of Elective Local Government Officials

Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from engaging in the private practice of their profession "unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions." This is the general law which applies to all public officials and employees.

For elective local government officials, Section 90 of RA 716012 governs:

SEC. 90. Practice of Profession. - (a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.

(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are members of the Bar shall not:

(1) Appear as counsel before any court in any civil case wherein a local government unit or any office, agency, or instrumentality of the government is the adverse party;

(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office;

(3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and

(4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government.

(c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom.

This is a special provision that applies specifically to the practice of profession by elective local officials. As a special law with a definite scope (that is, the practice of profession by elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees. Lex specialibus derogat generalibus.13

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Under RA 7160, elective local officials of provinces, cities, municipalities and barangays are the following: the governor, the vice governor and members of the sangguniang panlalawigan for provinces; the city mayor, the city vice mayor and the members of the sangguniang panlungsod for cities; the municipal mayor, the municipal vice mayor and the members of the sangguniang bayan for municipalities and the punong barangay, the members of the sangguniang barangay and the members of the sangguniang kabataan for barangays.

Of these elective local officials, governors, city mayors and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives. This is because they are required to render full time service. They should therefore devote all their time and attention to the performance of their official duties.

On the other hand, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayanmay practice their professions, engage in any occupation, or teach in schools except during session hours. In other words, they may practice their professions, engage in any occupation, or teach in schools outside their session hours. Unlike governors, city mayors and municipal mayors, members of the sangguniang panlalawigan,sangguniang panlungsod or sangguniang bayan are required to hold regular sessions only at least once a week.14 Since the law itself grants them the authority to practice their professions, engage in any occupation or teach in schools outside session hours, there is no longer any need for them to secure prior permission or authorization from any other person or office for any of these purposes.

While, as already discussed, certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay. Expressio unius est exclusio alterius.15 Since they are excluded from any prohibition, the presumption is that they are allowed to practice their profession. And this stands to reason because they are not mandated to serve full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice a month.16

Accordingly, as punong barangay, respondent was not forbidden to practice his profession. However, he should have procured prior permission or authorization from the head of his Department, as required by civil service regulations.

A Lawyer In Government Service Who Is Not Prohibited To Practice Law Must Secure Prior Authority From The Head Of His Department

A civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned.17 Section 12, Rule XVIII of the Revised Civil Service Rules provides:

Sec. 12. No officer or employee shall engage directly in any private business, vocation, or professionor be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, that no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors. (emphasis supplied)

As punong barangay, respondent should have therefore obtained the prior written permission of the Secretary of Interior and Local Government before he entered his appearance as counsel for Elizabeth and Pastor. This he failed to do.

The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil Service Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants of the law, vires legis, men of the law. Their paramount duty to society is to obey the law and promote respect for it. To underscore the primacy and importance of this duty, it is enshrined as the first canon of the Code of Professional Responsibility.

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In acting as counsel for a party without first securing the required written permission, respondent not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility:

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis supplied)

For not living up to his oath as well as for not complying with the exacting ethical standards of the legal profession, respondent failed to comply with Canon 7 of the Code of Professional Responsibility:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. (emphasis supplied)

Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards legal ethics and disgraces the dignity of the legal profession.

Public confidence in the law and in lawyers may be eroded by the irresponsible and improper conduct of a member of the bar.18 Every lawyer should act and comport himself in a manner that promotes public confidence in the integrity of the legal profession.19

A member of the bar may be disbarred or suspended from his office as an attorney for violation of the lawyer's oath20 and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.

WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility. He is therefore SUSPENDED from the practice of law for a period of six months effective from his receipt of this resolution. He is sternly WARNED that any repetition of similar acts shall be dealt with more severely.

Respondent is strongly advised to look up and take to heart the meaning of the word delicadeza.

Let a copy of this resolution be furnished the Office of the Bar Confidant and entered into the records of respondent Atty. Vicente G. Rellosa. The Office of the Court Administrator shall furnish copies to all the courts of the land for their information and guidance.

SO ORDERED.

RENATO C. CORONA Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice Chairperson

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

ADOLFO S. AZCUNA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

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Footnotes

1 Particularly described as lot no. 19, block no. 3, Pas-14849.

2 Complainant's sister-in-law.

3 Hereafter, "Elizabeth and Pastor."

4 Hereafter, "Barangay 723."

5 These were scheduled on March 15, 2001, March 26, 2001 and April 3, 2001.

6 Dated July 5, 2002. Rollo, pp. 2-23.

7 Report and Recommendation dated October 15, 2004 of Commissioner Doroteo B. Aguila of the IBP-CBD. Id., pp. 103-106.

8 The Code of Conduct and Ethical Standards for Public Officials and Employees.

9 Supra note 7.

10 CBD Resolution No. XVI-2004-476 dated November 4, 2004. Rollo, p. 102.

11 G.R. Nos. 151809-12, 12 April 2005, 455 SCRA 526. (emphasis in the original)

12 The Local Government Code of 1992.

13 This rule of statutory construction means that a special law repeals a general law on the same matter.

14 Section 52(a), RA 7160. They may also hold special sessions upon the call of the local chief executive or a majority of the members of the sanggunian when public interest so demands. (Section 52[b], id.)

15 This rule of statutory construction means that the express mention of one thing excludes other things not mentioned.

16 Id.

17 See Ramos v. Rada, A.M. No. P-202, 22 July 1975, 65 SCRA 179; Zeta v. Malinao, A.M. No. P-220, 20 December 1978, 87 SCRA 303.

18 Ducat v. Villalon, 392 Phil. 394 (2000).

19 Id.

20 See Section 27, Rule 138, RULES OF COURT.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 163443 November 11, 2008

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LIZA M. QUIROG and RENE L. RELAMPAGOS, petitioners vs. GOVERNOR ERICO B. AUMENTADO, respondent.

x--------------------------------------x

G.R. No. 163568 November 11, 2008

CIVIL SERVICE COMMISSION, petitioner vs. COURT OF APPEALS and GOV. ERICO B. AUMENTADO, respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

Before this Court are two consolidated petitions for review under Rule 45 of the Rules of Court both assailing and seeking to set aside the Court of Appeals' (CA) Decision

1 dated

March 31, 2003 and theResolution2 dated April 12, 2004 in CA-G.R. SP No. 70255. The

Decision set aside Resolution Nos. 011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively, of the Civil Service Commission in Administrative NDC No. 01-88 and reinstated the (a) June 28, 2001 Order and (b) July 23, 2001 Decision of the Civil Service Commission Regional Office No. VII.

The facts as culled from the records are as follows:

On May 28, 2001, Bohol Provincial Governor Rene L. Relampagos permanently appointed

3 Liza M. Quirog as Provincial Government Department Head

4 of the Office of

the Bohol Provincial Agriculture (PGDH-OPA). The appointment was confirmed by the Sangguniang Panlalawigan in Resolution No. 2001-199

5 on June 1, 2001. On even date,

Quirog took her oath of office.

Before the issuance of the permanent appointment, the Personnel Selection Board (PSB) of the Human Resource Management and Development Office of Bohol issued a certification

6 that Quirog was one of two candidates qualified for the position of PGDH-

OPA.

A copy of the Monthly Report on Personnel Actions (ROPA) covering the months of May and June 2001 of the provincial government was submitted to the Civil Service Commission Regional Office No. VII (CSCROVII), Cebu City.

In the Order dated June 28, 20017, the Director of CSCROVII invalidated Quirog's

appointment as PGDH-OPA upon finding that the same was part of the bulk appointments issued by then Governor Relampagos after the May 14, 2001 elections allegedly in violation of Item No. 3(d)

8 of CSC Resolution No. 010988 dated June 4, 2001. The Order

pointed out that the prohibition against the issuance ofmidnight appointments was already laid down as early as February 29, 2000 in CSC Resolution No. 000550.

9

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Both Relampagos and Quirog moved for reconsideration of the CSCROVII Order, alleging that when the latter took her oath of office on June 1, 2001, CSC Resolution No. 010988 was not yet effective as it took effect only on June 4, 2001. They argued that the subject appointment cannot be considered a midnight appointment because it was made days before the expiration of Relampagos' term, and that Quirog was already the acting Provincial Agriculturist a year prior to said appointment or since June 19, 2000.

10Besides,

so they asserted, since Quirog had already taken her oath of office, assumed her duties and collected her salary for the month of June, 2001, she had already acquired a legal, not merely equitable, right to the position in question, which cannot be taken away from her either by revocation of the appointment or by removal except for cause and with previous notice and hearing.

In a decision11

dated July 23, 2001, the CSCROVII denied Quirog's and Relampagos' motion for reconsideration for lack of legal personality to file such pleading, citing Section 2, Rule VI of CSC Memorandum Circular (MC) No. 40, series of 1998. The CSCROVII explained that only the appointing officer may request reconsideration of the disapproval of an appointment by the Civil Service Commission. Even if Relampagos was the one who appointed Quirog, he could not file a motion for reconsideration because his term as governor had already expired.

Aggrieved, the petitioners in G.R. No. 163443 appealed to the Civil Service Commission (CSC) where their joint appeal was docketed as Adm. NDC No. 01-88.

On November 20, 2001, the CSC issued Resolution No. 011812,12

which granted the said joint appeal and set aside the order and decision of the CSCROVII. More specifically, the Resolution states:

WHEREFORE, the joint appeal of former Governor Rene L. Relampagos and Liza M. Quirog is hereby GRANTED. Accordingly, the decision dated July 23, 2001 of the Civil Service Commission-Regional Office No. VII and CSCRO No. VII Order dated June 28, 2001 are hereby set aside. Said Regional Office is enjoined to approve the appointment of Quirog to the position of Provincial Government Head, Office of the Provincial Agriculturist, Province of Bohol.

According to the CSC, since Relampagos had ceased to be the appointing authority upon the expiration of his term as governor and incumbent Governor Erico B. Aumentado was not the official who made the subject appointment, equity dictates that the appointee Quirog be allowed to question the decision to obviate possible damage or injury to the delivery of public service. The CSC also declared that the appointment of Quirog was not a midnight appointment as it was not hurriedly issued nor did it subvert the policies of the incoming administration. The CSC relaxed the application of Item 3(a)

13 in CSC

Resolution 01-0988 requiring that appointments should have gone through the regular screening by the PSB before the election ban or the prohibited period from March 30, 2001 to May 14, 2001. After noting that the selection board only deliberated upon Quirog's qualifications on May 24, 2001, or after the election ban, the CSC ratiocinated that the spirit, rather than the letter of the said rule should prevail as long as the case did not

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involve a midnight appointment proscribed by Aytona v. Castillo, et al.14

Lastly, the CSC justified Quirog's appointment even though such was included among 46 post-election appointments because of the need to immediately fill up in a permanent capacity the vacant position of Provincial Agriculturist and the fact that Governor Aumentado expressly declared his trust and confidence in Quirog in his Memorandum No. 1

15 dated July 2,

2001.

On December 10, 2001, incumbent Bohol Governor Erico B. Aumentado filed an amended Motion for Reconsideration

16 of the CSC Resolution No. 011812. He insisted that Quirog

and Relampagos had no legal personality to file a motion for reconsideration of the disapproved appointment or to appeal the same. He insisted that Quirog's appointment was a midnight appointment. Aumentado added that the selection board which screened Quirog's qualifications was not validly constituted and that the subject appointment was made more than six months from the time it was published on July 23, 2000 in violation of CSC Resolution No. 010114

17 dated January 10, 2001. Aumentado insisted that

Relampagos made 97, not 46, mass appointments on the eve of his term, 95 of which were invalidated by the CSC Bohol Field Office and two, including that of Quirog, by the CSCROVII.

In Resolution No. 02027118

dated February 22, 2002, the CSC denied Aumentado's motion for reconsideration. Aumentado then filed a petition for review

19 under Rule 43 of

the Rules of Court with the CA where it was docketed as CA-G.R. SP No. 70255.

On March 31, 2003, the CA rendered the herein challenged Decision,20

granting Aumentado's petition. The CA reversed and set aside CSC Resolution No. 011812 and ruled that Quirog's appeal should have been dismissed outright for lack of legal personality:

WHEREFORE, based on the foregoing premises, the instant petition is hereby GRANTED, the assailed CSC Resolution Nos. 011812 and 020271, dated November 20, 2001 and February 22, 2002 respectively, are REVERSED and SET ASIDE. The CSCROVII's June 28, 2001 Order and its July 23, 2001 Decision are hereby REINSTATED.

SO ORDERED.

On April 12, 2004, the CA rendered the second assailed Resolution,21

denying Quirog and Relampagos' motion for reconsideration.

From the adverse decision of the CA, the CSC as well as Relampagos and Quirog interposed separate petitions for review on certiorari. Relampagos and Quirog's petition

22 filed on June 25, 2004, was docketed as G.R. No. 163443, while the CSC's

petition23

filed on July 8, 2004, was docketed as G.R. No. 163568.

In the Resolution24

dated July 13, 2004, the Court ordered the consolidation of the two petitions.

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The consolidated petitions present the following issues for the Court's resolution: (1) whether or not petitioners Relampagos and Quirog have the legal standing to file a motion for reconsideration of, or appeal from, the disapproval of the latter's appointment by the Civil Service Commission, (2) whether or not Quirog's appointment violated Item 3 of CSC Resolution No. 010988 dated June 4, 2001, and 3) whether or not the subject appointment was a midnight appointment.

In the herein challenged decision, the CA held that only the appointing authority could challenge the CSC's disapproval of an appointment. In arriving at such a conclusion, the CA relied solely on Section 2 of Rule VI of CSC Memorandum Circular (MC) No. 40, series of 1998

25 which provides:

Sec. 2. Requests for reconsideration of, or appeal from, the disapproval of an appointment may be made by the appointing authority and submitted to the Commission within fifteen (15) days from receipt of the disapproved appointment.

The petitioners share the view that the word may in the afore-quoted provision simply means that a request for reconsideration or appeal from a disapproved appointment is not vested exclusively in the appointing authority and that Quirog's appeal should have been given due course because she was the real party-in-interest, being the one aggrieved by the disapproval of the appointment.

Petitioners Quirog and Relampagos contend that their appeal before the CA should not have been dismissed on a mere technicality such as lack of legal personality. They argued that litigants must be afforded full opportunity for the adjudication of their case on the merits.

The CSC for its part, pointed out that in previously decided cases, the CSC allowed the appointees to take relief from the disapproval of their appointments as an exception to the rule on legal standing.

Upon the other hand, respondent Aumentado maintains that the controlling rule on the matter of legal standing is the afore-cited Section 2, Rule VI, CSC MC No. 40, series of 1998. He anchors his argument in Mathay, Jr. v. Civil Service Commission,

26 where the

Court laid down the ruling that only the appointing authority can request for reconsideration of a CSC-disapproved appointment.

The Court rules for the petitioners.

In the recent case of Abella, Jr. v. Civil Service Commission,27

the Court declared that both the appointing authority and the appointee are equally real parties in interest who have the requisite legal standing to bring an action challenging a CSC disapproval of an appointment. In said case, we held that:

The CSC's disapproval of an appointment is a challenge to the exercise of the appointing authority's discretion. The appointing authority must have the right to contest the disapproval. Thus, Section 2 of Rule VI of CSC Memorandum Circular

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40, s. 1998 is justified insofar as it allows the appointing authority to request reconsideration or appeal.

x x x

Although the earlier discussion demonstrates that the appointing authority is adversely affected by the CSC's Order and is a real party in interest, the appointee is rightly a real party in interest too. He is also injured by the CSC disapproval, because he is prevented from assuming the office in a permanent capacity. Moreover, he would necessarily benefit if a favorable judgment is obtained, as an approved appointment would confer on him all the rights and privileges of a permanent appointee.

x x x

Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should not be interpreted to restrict solely to the appointing authority the right to move for a reconsideration of, or to appeal, the disapproval of an appointment. PD 807 and EO 292, from which the CSC derives the authority to promulgate its rules and regulations, are silent on whether appointees have a similar right to file motions for reconsideration of, or appeals from, unfavorable decisions involving appointments. Indeed, there is no legislative intent to bar appointees from challenging the CSC's disapproval.

The view that only the appointing authority may request reconsideration or appeal is too narrow. The appointee should have the same right. Parenthetically, CSC Resolution 99-1936 recognizes the right of the adversely affected party to appeal to the CSC Regional Offices prior to elevating a matter to the CSC Central Office. The adversely affected party necessarily includes the appointee.

28

Also, in Abella, Jr, we held that the right of the appointee to seek reconsideration or appeal was not the main issue in Mathay:

This judicial pronouncement does not override Mathay v. Civil Service Commission xxx. The Court merely noted in passing -- by way of obiter -- that based on a similar provision, only the appointing officer could request reconsideration of actions taken by the CSC on appointments.

In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the nullification of CSC Resolutions that recalled his appointment of a city government officer. He filed a Petition assailing the CA Decision, which had previously denied his Petition for Certiorari for being the wrong remedy and for being filed out of time. We observed then that the CSC Resolutions were already final and could no longer be elevated to the CA. Furthermore, Mathay's Petition for Certiorari filed with the CA was improper, because there was an available remedy of appeal. And the CSC could not have acted without jurisdiction, considering that it was empowered to recall an appointment initially approved.

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The right of the appointee to seek reconsideration or appeal was not the main issue in Mathay. At any rate, the present case is being decided en banc, and the ruling may reverse previous doctrines laid down by this Court.

29

Clearly, pursuant to Abella, Jr., Quirog had the right to ask for reconsideration of, or to appeal the adverse ruling of CSCROVII. In contrast, Relampagos, by reason of the expiration of his term as governor, had lost the legal personality to contest the disapproval of the appointment.

As to the validity of Quirog's appointment, the CSCROVII disapproved Quirog's appointment for non-compliance with Item No. 3 of CSC Resolution No. 010988 dated June 4, 2001. Item No. 3 refers to the disapproval of appointments unless certain requisites are complied with. Item No. 3 reads:

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, x x x which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, x x x shall be disapproved unless the following requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments as shown by the PSB report or minutes of its meeting;

b) That the appointee is qualified;

c) There is a need to fill up the vacancy immediately in order not to prejudice public service and/or endanger public safety;

d) That the appointment is not one of those mass appointments issued after the elections.

The CSC ruled that the promotional appointment extended to Quirog by Governor Relampagos was not violative of the aforesaid CSC Resolution. This interpretation by the CSC of its own rules should be given great weight and consideration for after all, it is the agency tasked with interpreting or applying the same.

Records disclose that on May 28, 2001, the PSB of the Human Resource Management and Development Office of Bohol, issued a certification

30 that Quirog was one of two

candidates qualified for the position of PGDH-OPA. On the same day, Quirog was appointed by then Governor Relampagos and on June 1, 2001, she took her oath of office. CSC Resolution No. 010988 was issued three days later, or on June 4, 2001. Evidently, the CSCROVII should not have subjected Quirog's appointment to the requirements under said resolution, as its application is against the prospective application of laws. Having no provision regarding its retroactive application to appointments made prior to its effectivity, CSC Resolution No. 010988 must be taken to be of prospective application. As we have held time and again:

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Since the retroactive application of a law usually divests rights that have already become vested, the rule in statutory construction is that all statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.

31

Prescinding therefrom, it cannot be said that Quirog's appointment violated CSC Resolution No. 010988, the said Resolution having taken effect after the questioned appointment was extended.

It cannot also be said that Quirog's appointment was a midnight appointment. The constitutional prohibition on so-called midnight appointments, specifically, those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President.

32

As the Court ruled in De Rama v. CA33

:

The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only reason he cited to justify his action was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure.

We, however, hasten to add that the aforementioned ruling does not mean that the raison d' etre behind the prohibition against midnight appointments may not be applied to those made by chief executives of local government units, as here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing appointments merely for partisan purposes thereby depriving the incoming administration of the opportunity to make the corresponding appointments in line with its new policies. As we held in Aytona v. Castillo:

The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.

34 (Emphasis ours)

The appointment of Quirog cannot be categorized as a midnight appointment. For it is beyond dispute that Quirog had been discharging and performing the duties concomitant with the subject position for a year prior to her permanent appointment thereto. Surely, the

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fact that she was only permanently appointed to the position of PGDH-OPA after a year of being the Acting Provincial Agriculturist more than adequately shows that the filling up of the position resulted from deliberate action and a careful consideration of the need for the appointment and the appointee's qualifications. The fact that Quirog had been the Acting Provincial Agriculturist since June 2000 all the more highlights the public need for said position to be permanently filled up.

Besides, as correctly held by the CSC:

A careful evaluation of the circumstances obtaining in the issuance of the appointment of Quirog shows the absence of the element of hurriedness on the part of former Governor Relampagos which characterizes a midnight appointment. There is also wanting in the records of the case the subversion by the former governor of the policies of the incumbent Governor Erico Aumentado as a logical consequence of the issuance of Quirog's appointment by the latter. Both elements are the primordial considerations by the Supreme Court when it laid down its ruling in prohibiting midnight appointments in the landmark case of Aytona vs Castillo, et. al.

35

In any event, respondent Governor Aumentado, in a Memorandum36

dated March 4, 2003, has reinstated Quirog to the permanent position of PGDH-OPA. Such act of respondent bespeaks of his acceptance of the validity of Quirog's appointment and recognition that indeed, the latter is qualified for the subject position.

WHEREFORE, the assailed Decision dated March 31, 2003 and the Resolution dated April 12, 2004 of the Court of Appeals are REVERSED AND SET ASIDE and CSC Resolution Nos. 011812 and 020271 dated November 20, 2001 and February 22, 2002, respectively, are AFFIRMED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice

*CONSUELO YNARES-SANTIAGO

Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

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Associate Justice Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

Footnotes

* On Leave

1 Penned by then Associate Justice Elvi John S. Asuncion with then Presiding

Justice Ruben T. Reyes (now a member of this Court) and Associate Justice Lucas P. Bersamin, concurring; G.R. No. 163443, rollo, pp. 169-174.

2 Id. at 191.

3 Id. at 41.

4 Also called Provincial Agriculturist.

5 G.R. No. 163443; rollo, pp .42-43.

6 Id. at 49.

7 Id. at 45-46.

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8 Pertinently, Item 3(d) reads:

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, x x x which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, x x x shall be disapproved unless the following requisites concur relative to their issuance:

x x x

d) That the appointment is not one of those mass appointments issued after the elections.

9 Entitled Castro, Ariel, et. al., Re: Appeal, Termination of Services, Midnight

Appointments.

10 G.R. No. 163443; rollo, p. 37.

11 Id. at. 54-55.

12 Id. at 69-76.

13 Pertinently, Item 3(a) reads:

3. All appointments, whether original, transfer, reemployment, reappointment, promotion or demotion, x x x which are issued AFTER the elections, regardless of their dates of effectivity and/or date of receipt by the Commission, x x x shall be disapproved unless the following requisites concur relative to their issuance:

a) The appointment has gone through the regular screening by the Personnel Selection Board (PSB) before the prohibited period on the issuance of appointments as shown by the PSB report, or minutes of its meeting.

14 No. L-19313, January 19, 1962, 4 SCRA 1.

15 Rollo, p. 193.

16 G.R. No. 163443; id. at 78-89.

17 CSC Resolution No. 010114 dated January 10, 2001 pertinently reads: The

publication of a particular vacant position shall be valid until filled up but not to extend beyond six months reckoned from the date the vacant position was published.

18 G.R. No. 163443 Rollo, pp. 113-120.

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19 Id. at 121-138.

20 Supra note 1.

21 Supra note 2.

22 G.R. No. 163443, rollo, pp. 10-34.

23 G.R. No. 163568, id., at 10-19.

24 Id. at 32.

25 Revised Omnibus Rules on Appointments and Other Personnel Actions.

26 G.R. No. 1320214, August 9, 1999, 312 SCRA 91, 99-100.

27 G.R. No. 152574, November 17, 2004, 442 SCRA 507.

28 Id. at 518, 521-522.

29 Id. at 523-524.

30 Supra note 6.

31 Paloma v. Mora, et al., G.R. No. 157783, September 23, 2005, 470 SCRA 711,

723.

32 The constitutional provision referred to is Section 15, Article VII which states:

"Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."

33 G.R. No. 131136, February 28, 2001, 353 SCRA 95, 102.

34 Supra note 14 at 10.

35 G.R. No.163443; rollo, p. 74.

36 Id. at 193.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 181367 April 24, 2012

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LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Mayor, HON. JEFFREY P. FERRER,* and the SANGGUNIANG PANLUNGSOD OF LA CARLOTA CITY, NEGROS OCCIDENTAL, represented by its Vice-Mayor, HON. DEMIE JOHN C. HONRADO,** Petitioners, vs. ATTY. REX G. ROJO, Respondent.

D E C I S I O N

CARPIO, J.:

This petition for review assails the 14 September 2007 Decision1 and the 18 January 2008 Resolution2 of the Court of Appeals in CA-G.R. CEB-SP No. 01377. The Court of Appeals affirmed Resolution Nos. 0506543 and 0516464 of the Civil Service Commission, which affirmed the Decision dated 20 September 2004 of the Civil Service Commission Regional Office (CSCRO) No. VI, Iloilo City, approving the appointment of respondent Atty. Rex G. Rojo (respondent) as Sangguniang Panlungsod Secretary under a permanent status.

The Facts

The facts as found by the Court of Appeals are as follows:

On March 18, 2004, [the] then Vice-Mayor Rex R. Jalandoon of La Carlota City, Negros Occidental appointed Atty. Rex G. Rojo (or Rojo) who had just tendered his resignation as member of the Sangguniang Panlungsod the day preceding such appointment, as Sangguniang Panlungsod Secretary. The status of the appointment was permanent. The next day, March 19, 2004, the Vice-Mayor submitted Rojo’s appointment papers to the Civil Service Commission Negros Occidental Field Office (CSCFO-Negros Occidental) for attestation. In a Letter dated March 24, 2004, the said CSCFO wrote Jalandoon to inform him of the infirmities the office found on the appointment documents, i.e. the Chairman of the Personnel Selection Board and the Human Resource Management Officer did not sign the certifications, the latter relative to the completeness of the documents as well as to the publication requirement. In view of the failure of the appointing authority to comply with the directive, the said CSCFO considered the appointment of Rojo permanently recalled or withdrawn, in a subsequent Letter to Jalandoon dated April 14, 2004.

Jalandoon deemed the recall a disapproval of the appointment, hence, he brought the matter to the CSC Regional Office No. 6 in Iloilo City, by way of an appeal. He averred that the Human Resource Management Officer of La Carlota City refused to affix his signature on Rojo’s appointment documents but nonetheless transmitted them to the CSCFO. Such transmittal, according to Jalandoon, should be construed that the appointment was complete and regular and that it complied with the pertinent requirements of a valid appointment. Before the said CSC Regional Office No. 6 [could resolve the appeal], the City of La Carlota represented by the newly elected mayor, Hon. Jeffrey P. Ferrer and the Sangguniang Panlungsod represented by the newly elected Vice-Mayor, Hon. Demie John C. Honrado, collectively, the petitioners herein, intervened. They argued that Jalandoon is not the real party in interest in the appeal but Rojo who, by his inaction, should be considered to have waived his right to appeal from the disapproval of his appointment; that the appointment was made within the period of the election ban prior to the May 14, 2004 national and local elections, and finally, that the resignation of Rojo as member of the Sangguniang Panlungsod is ineffective having not complied with the provision on quorum under Section 82(d) of R.A. No. 7160.

In a Decision dated September 20, 2004, the CSC Regional Office No. 6 reversed and set aside the CSCFO’s earlier ruling. On the argument of the intervenors that the former Vice-Mayor lacked legal personality to elevate the case on appeal, the regional office cited settled jurisprudence that the disapproval of an appointment affects the discretionary authority of the appointing authority. Hence, he alone may request for reconsideration of or appeal the disapproval of an appointment. The regional office likewise ruled that Rojo’s appointment on March 18, 2004 was made outside the period of the election ban from March 26 to May 9, 2004, and that his resignation from the Sangguniang Panlungsod was valid having been tendered with the majority of the council members in attendance (seven (7) out of the thirteen councilors were present). Considering that the appointment of Rojo sufficiently complied with the publication requirement, deliberation by the Personnel Selection Board, certification that it was issued in accordance with the limitations provided for under Section 325 of R.A. 7160 and that appropriations or funds are available for said position, the regional office approved the same. x x x

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Mayor Ferrer and Vice-Mayor Honrado appealed the foregoing Decision of the CSC Regional Office No. 6 to the Civil Service Commission (or Commission). On May 17, 2005, the Commission dismissed said appeal on the ground that the appellants were not the appointing authority and were therefore improper parties to the appeal. Despite its ruling of dismissal, the Commission went on to reiterate CSC Regional Office’s discussion on the appointing authority’s compliance with the certification and deliberation requirements, as well as the validity of appointee’s tender of resignation. x x x

It likewise denied the motion for reconsideration thereafter filed by the petitioners in a Resolution dated November 8, 2005.5

Petitioners filed a petition for review with the Court of Appeals. On 14 September 2007, the Court of Appeals denied the petition, and affirmed Resolution Nos. 050654 and 051646 of the Civil Service Commission, dated 17 May 2005 and 8 November 2005, respectively. Petitioners filed a Motion for Reconsideration, which the Court of Appeals denied in its Resolution dated 18 January 2008.

Hence, this petition for review.

The Ruling of the Court of Appeals

Citing Section 9(h), Article V of Presidential Decree No. 8076 or the Civil Service Decree, the Court of Appeals held that "in the attestation of an appointment made by a head of agency, the duty of the Civil Service Commission does not go beyond ascertaining whether the appointee possesses the appropriate civil service eligibility and the minimum statutory qualifications."7 In this case, the Court of Appeals found that respondent met the minimum qualifications for the position of Secretary of the Sanggunian, as enumerated under Section 469(b), Article I, Title V of the Local Government Code.8 In fact, the Court of Appeals held that respondent is more than qualified for the position considering that respondent is a lawyer and an active member of the bar. Furthermore, the requirements for the appointment of respondent have been substantially complied with: (a) publication; (b) Personnel Selection Board deliberation; and (c) certification from the appropriate offices that appropriations or funds are available for the position. Thus, the Court of Appeals ruled that there was no sufficient reason for the Commission to disapprove respondent’s appointment.

On the issue of the lack of signature of the Human Resource Management Officer of La Carlota City on respondent’s appointment papers, the Court of Appeals held that such refusal of the officer to affix his signature should not affect the validity of the appointment. Otherwise, "it would be tantamount to putting the appointing power under the mercy of a department head who may without reason refuse to perform a ministerial function, as what happened in the instant case."9

The Court of Appeals also found that the appointment of respondent on 18 March 2004 did not violate the election ban period which was from 26 March to 9 May 2004. Furthermore, there was no substantial evidence to show that the appointment was a "midnight appointment."

Thus, the Court of Appeals concluded that since respondent possessed the minimum qualifications for the position of Sangguniang Panlungsod Secretary, and the appointing authority has adequately complied with the other requirements for a valid appointment, then the Civil Service Commission’s approval of the appointment was only proper.

The Issues

Petitioners raise the following issues:

1. WHETHER THE APPOINTMENT OF RESPONDENT AS SANGGUNIANG PANLUNGSOD SECRETARY VIOLATED THE CONSTITUTIONAL PROSCRIPTION AGAINST ELIGIBILITY OF AN ELECTIVE OFFICIAL FOR APPOINTMENT DURING HIS TENURE; and

2. WHETHER RESPONDENT’S APPOINTMENT AS SANGGUNIANG PANLUNGSOD SECRETARY WAS ISSUED CONTRARY TO EXISTING CIVIL SERVICE RULES AND REGULATIONS.10

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The Ruling of the Court

Petitioners allege that respondent’s appointment as Sangguniang Panlungsod Secretary is void. Petitioners maintain that respondent’s irrevocable resignation as a Sangguniang Panlungsod member was not deemed accepted when it was presented on 17 March 2004 during the scheduled regular session of the Sangguniang Panlungsod of La Carlota City, Negros Occidental for lack of quorum. Consequently, respondent was still an incumbent regular Sangguniang Panlungsod member when then Vice Mayor Jalandoon appointed him asSangguniang Panlungsod Secretary on 18 March 2004, which contravenes Section 7, Article IX-B of the Constitution.11

The resolution of this case requires the application and interpretation of certain provisions of Republic Act No. 7160 (RA 7160), otherwise known as the Local Government Code of 1991. The pertinent provisions read:

Section 82. Resignation of Elective Local Officials. (a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities:

(1) The President, in the case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities;

(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component cities;

(3) The sanggunian concerned, in case of sanggunian members; and

(4) The city or municipal mayor, in the case of barangay officials.

(b) Copies of the resignation letters of elective local officials, together with the action taken by the aforesaid authorities, shall be furnished the Department of Interior and Local Government.

(c) The resignation shall be deemed accepted if not acted upon by the authority concerned within fifteen (15) working days from receipt thereof.

(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records: Provided, however,That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations.

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.

Section 52. Sessions. (a) On the first day of the session immediately following the election of its members, the sanggunian shall, by resolution, fix the day, time, and place of its regular sessions. The minimum number of regular sessions shall be once a week for the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan, and twice a month for the sangguniang barangay.

(b) When public interest so demands, special session may be called by the local chief executive or by a majority of the members of the sanggunian.

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(c) All sanggunian sessions shall be open to the public unless a closed-door session is ordered by an affirmative vote of a majority of the members present, there being a quorum, in the public interest or for reasons of security, decency, or morality. No two (2) sessions, regular or special, may be held in a single day.

(d) In the case of special sessions of the sanggunian, a written notice to the members shall be served personally at the member’s usual place of residence at least twenty-four (24) hours before the special session is held. Unless otherwise concurred in by two-thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be considered at a special session except those stated in the notice.

(e) Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the sanggunian concerned.

Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

(b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted, or a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session.

(c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the session adjourned for lack of quorum.

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural communities, or disabled persons.

(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided for by law. (Boldfacing supplied)

Petitioners insist that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not be counted in determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) out of the twelve (12) members of the Sangguniang Panlungsod who were present on 17 March 2004. Since the required majority of seven (7) was not reached to constitute a quorum, then no business could have validly been transacted on that day including the acceptance of respondent’s irrevocable resignation.

On the other hand, respondent maintains that in this case, the Sangguniang Panlungsod consists of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. Citing the Department of Interior and Local Government (DILG) Opinion No. 28, s. 2000,12 dated 17 April 2000, respondent asserts that the vice-mayor, as presiding officer, should be included in determining the existence of a quorum. Thus, since there were six (6) members plus the presiding officer, or a total of seven (7) who were present on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly accepted.

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The 1987 Constitution mandates Congress to enact a local government code which provides, among others, the powers, functions and duties of local officials and all other matters relating to the organization and operation of the local government units. Section 3, Article X of the 1987 Constitution states:

Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanism of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. (Emphasis supplied)

Thus, the Local Government Code "shall x x x provide for the x x x powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units." In short, whether a vice-mayor has the power, function or duty of a member of the Sangguniang Panlungsod is determined by the Local Government Code.

On 10 October 1991, the Congress approved RA 7160 or the Local Government Code.1âwphi 1 Under RA 7160, the city vice-mayor, as presiding officer, is a member of the Sangguniang Panlungsod, thus:

Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and consisting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from the passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided.

Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and as shall be determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural communities, or disabled persons.

(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided for by law. (Boldfacing and underscoring supplied)

RA 7160 clearly states that the Sangguniang Panlungsod "shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members." Black’s Law Dictionary defines "composed of" as "formed of" or "consisting of." As the presiding officer, the vice-mayor can vote only to break a tie. In effect, the presiding officer votes when it matters the most, that is, to break a deadlock in the votes. Clearly, the vice-mayor, as presiding officer, is a "member" of the Sangguniang Panlungsod considering that he is mandated under Section 49 of RA 7160 to vote to break a tie. To construe otherwise would create an anomalous and absurd situation where the presiding officer who votes to break a tie during a Sanggunian session is not considered a "member" of the Sanggunian.

The Senate deliberations on Senate Bill No. 155 (Local Government Code) show the intent of the Legislature to treat the vice-mayor not only as the presiding officer of the Sangguniang Panlungsod but also as a member of theSangguniang Panlungsod. The pertinent portions of the deliberations read:

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Senator Pimentel. Before Senator Rasul and Senator Lina take the floor, Mr. President, may I reiterate this observation, that changes in the presiding officership of the local sanggunians are embodied for the municipality where the vice-mayor will now be the presiding officer of the sanggunian and the province where the vice-governor will now be the presiding officer. We did not make any change in the city because the city vice-mayor is already the presiding officer.

The President. All right.

Senator Rasul, Senator Lina, and Senator Gonzales.

Senator Gonzales. May I just add something to that statement of Senator Pimentel?

The President. All right.

Senator Gonzales. Reading this bill, there is also a fundamental change in the sense that the provincial governor, the city mayor, the municipal mayor, as well as, the punong barangay are no longer members of their respective sanggunian; they are no longer members. Unlike before, when they were members of their respective sanggunian, now they are not only the presiding officers also, they are not members of their respective sanggunian.

Senator Pimentel. May I thank Senator Gonzales for that observation. (Boldfacing supplied)

During the deliberations, Senator Pimentel, the principal author of the the Local Government Code of 1991, clearly agrees with Senator Gonzales that the provincial governor, the city mayor, and the municipal mayor who were previously the presiding officers of their respective sanggunian are no longer the presiding officers under the proposed Local Government Code, and thus, they ceased to be members of their respective sanggunian.13 In the same manner that under the Local Government Code of 1991, the vice-governor, the city vice-mayor, and the municipal vice-mayor, as presiding officers of the Sangguniang Panlalawigan, Sangguniang Panlungsod,Sangguniang Bayan, respectively, are members of their respective sanggunian.

In the 2004 case of Zamora v. Governor Caballero,14 the Court interpreted Section 53 of RA 7160 to mean that the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan. The Court held:

"Quorum" is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid act. "Majority," when required to constitute a quorum, means the number greater than half or more than half of any total. In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that "majority of each House shall constitute a quorum," Section 53 of the LGC is more exacting as it requires that the "majority of all members of the sanggunian . . . elected and qualified" shall constitute a quorum.

The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority of sanggunian members present when there is no quorum.

A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the participation of all its members so that they may not only represent the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts done during an unauthorized session.15

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In stating that there were fourteen (14) members of the Sanggunian,16 the Court in Zamora clearly included the Vice-Governor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

DILG Opinions, which directly ruled on the issue of whether the presiding officer should be included to determine the quorum of the sanggunian, have consistently conformed to the Court’s ruling in Zamora.

In DILG Opinion No. 46, s. 2007, the Undersecretary for Local Government clearly stated that the vice-mayor is included in the determination of a quorum in the sanggunian. The DILG Opinion reads:

DILG Opinion No. 46, s. 2007

02 July 2007

MESSRS. JAMES L. ENGLE, FEDERICO O. DIMPAS, JR., MARIFE G. RONDINA, PORFERIO D. DELA CRUZ, and WINSTON B. MENZON Sangguniang Bayan Membership Babatngon, Leyte

Dear Gentlemen and Lady:

This has reference to your earlier letter asking our opinion on several issues, which we quoted herein in toto:

"(1) What is the number that would determine the quorum of our sanggunian that has a total membership of eleven (11) including the vice-mayor?

(2) Are the resolutions adopted by a sanggunian without quorum valid?

In reply to your first query, may we invite your attention to Section 446 (a) of the Local Government Code of 1991 (RA 7160) which provides and we quote:

"SECTION 446. Composition. – (a) The Sangguniang bayan, the legislative body of the municipality, shall be composed of the municipal vice-mayor as the presiding officer, the regular sangguniang members, the president of the municipal chapter of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members."

Based on the aforequoted provision, the Sangguniang Bayan is composed of eight (8) regular members, the Liga ng mga Barangay President, the SK Federation President, the Vice-Mayor as Presiding Officer and the sectoral representatives.

Under the old Local Government Code (Batas Pambansa Blg. 337), the Presiding Officer then of the sanggunian was the Mayor. Thus, there was a dilemma as to whether or not the Vice-Mayor, as Presiding Officer, is to be included in the determination of quorum in the Sangguniang Bayan. This issue was, however, resolved with the advent of the new Local Government Code of 1991 (RA 7160) providing the aforequoted provision. Hence, the vice-mayor is included in the determination of a quorum in the sanggunian.

Based on the aforequoted provision, sectoral representatives are also included in the determination of quorum in the sangguniang bayan. Let it be noted however that sectoral representatives in the local sanggunian are, pursuant to Section 41 (c) of RA 7160 and Section 10 (b) of RA 9264, to be elected "in a manner as may be provided for by law." Meantime however, Congress has yet to enact a law providing for the manner of electing sectoral representatives at the local sanggunians. Such being the case, sectoral representatives are not, in the meantime, included in the determination of quorum in the local sanggunians.

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In view of the foregoing, the Sangguniang Bayan is composed of the 8 regular members, the Liga ng mga Barangay President and the SK Federation President as ex-officio members, and the Vice-Mayor as Presiding Officer. The total membership in that sanggunian, therefore, is eleven (11). Relative thereto, Section 53 of the Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. "Majority" has been defined inSantiago vs. Guingona, et al. (G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body. Following the said ruling, since the total membership of the sanggunian being 11, 11 divided by 2 will give us a quotient of 5.5. Let it be noted however that a fraction cannot be considered as one whole vote, since it is physically and legally impossible to divide a person or even his vote into a fractional part. Accordingly, we have to go up to the next whole number which is 6. In this regard, 6 is more than 5.5 and therefore, more than one-half of the total membership of the sangguniang bayan in conformity with the jurisprudential definition of the term majority. Thus, the presence of 6 members shall already constitute a quorum in the sangguniang bayan for it to conduct official sessions.

x x x x

Very truly yours,

(signed) AUSTERE A. PANADERO OIC, OUSLG17

In another DILG Opinion dated 9 February 2010, the Undersecretary for Local Government opined that the Vice-Governor, as a Presiding Officer of the Sangguniang Panlalawigan, is a composite member thereof and is included in the determination of the quorum. DILG Opinion No. 13, s. 2010 reads:

DILG Opinion No. 13, s. 2010

09 February 2010

GOVERNOR JESUS N. SACDALAN VICE-GOVERNOR EMMANUEL F. PIÑOL Provincial Capitol Building Province of Cotabato

Gentlemen:

This has reference to your earlier separate letters, which we herein consolidated, considering that they both pertain to one subject matter.

Per your letters, the Sangguniang Panlalawigan held its regular session on 12 January 2010 where the August Body embarked upon the approval of the Annual Budget. According to you, all fourteen (14) members of the Sangguniang Panlalawigan attended said session, namely: ten (10) regular Sangguniang Panlalawigan Members, three (3) ex-officio Sangguniang Panlalawigan Members and the Vice-Governor as the Presiding Officer. You further represented that when said approval of the Annual Budget was submitted for votation of said August Body, the result was: seven (7) members voted for the approval of the Annual Budget and six (6) voted against.

Specifically, you want us to shed light on the following issues:

"1) Whether or not the august body has reached the required majority of all the members of the Sangguniang Panlalawigan as provided for in Sections 53 and 54 of the Local Government Code and in relation to Article 107 (g) of its Implementing Rules and Regulations?

2) Whether or not the vice governor as the presiding officer is included in the count in determining the majority of all the members of the sangguniang panlalawigan to validly pass an appropriation ordinance.

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3) Whether or not the board member who signed the Committee Report endorsing the 2010 Proposed Annual Performance Budget may withdraw without just and valid cause his signature thereon and vote against the approval thereof?

4) In the event that the Province operates under a re-enacted budget, what are those expenditures included in the term "essential operating expenses" that may be incurred by the Province?"

x x x x

For the sanggunian to officially transact business, there should be a quorum. A quorum is defined by Section 53 of the Local Government Code of 1991 as referring to the presence of the majority of all the members of the sanggunian who have been duly elected and qualified. Relative thereto, generally, ordinary measures require for its enactment only the approval of a simple majority of the sanggunian members present, there being a quorum. These pertain to the normal transactions of the sanggunian which are approved by the sanggunian through a vote of simple majority of those present. On the other hand, there are certain measures where the Local Government Code requires for its approval the vote of majority of all the members who were duly elected and qualified. This is what we call approval by the qualified majority of the sanggunian. In this case, the approval is to be voted not just by the majority of those present in a session there being a quorum but by the majority of all the members of the sanggunian duly elected and qualified regardless of whether all of them were present or not in a particular session, there being a quorum.

x x x x

In determining a quorum, Section 53 of the Local Government Code of 1991 provides that a majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum. Along this line, it bears to emphasize that per Section 467 (a) of the Local Government Code of 1991, the Sangguniang Panlalawigan is a composite body where the Vice-Governor as Presiding Officer is a composite member thereof. As a composite member in the sangguniang panlalawigan, he is therefore included in the determination of a quorum.

"Majority" has been defined by the Supreme Court in Santiago vs. Guingona, et al. (G.R. No. 134577, 18 November 1998) as that which is greater than half of the membership of the body or that number which is 50% + 1 of the entire membership. We note, however, that using either formula will give us the same result. To illustrate, using the 50% +1 formula, the 50% of a sanggunian composed of 14 members is 7. Hence 7 + 1 will give us a sum of 8. On the other hand, if we use the second formula which is that number greater than half, then 8, in relation to 7, is definitely greater than the latter. The simple majority of the sangguniang panlalawigan with fourteen (14) members where all of them were present in that particular session is therefore 8.

x x x x

Very truly yours,

(signed) AUSTERE A. PANADERO Undersecretary18

In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the total composition of the Sangguniang Panlungsod. In this case, the Sangguniang Panlungsod of La Carlota City, Negros Occidental is composed of the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. A majority of the 13 "members" of the Sangguniang Panlungsod, or at least seven (7) members, is needed to constitute a quorum to transact official business. Since seven (7) members (including the presiding officer) were present on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of respondent was validly accepted.

The Perez19 case cited in the Dissenting Opinion was decided in 1969 prior to the 1987 Constitution, and prior to the enactment of RA 7160 or the Local Government Code of 1991. In fact, the Perez case was decided even prior to the old Local Government Code which was enacted in 1983. In ruling that the vice-mayor is not a constituent member of

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the municipal board, the Court in the Perez case relied mainly on the provisions of Republic Act No. 305 (RA 305) creating the City of Naga and the amendatory provisions of Republic Act No. 225920 (RA 2259) making the vice-mayor the presiding officer of the municipal board. Under RA 2259, the vice-mayor was the presiding officer of the City Council or Municipal Board in chartered cities. However, RA 305 and 2259 were silent on whether as presiding officer the vice-mayor could vote. Thus, the applicable laws in Perez are no longer the applicable laws in the present case.

On the other hand, the 2004 case of Zamora v. Governor Caballero,21 in which the Court interpreted Section 5322of RA 7160 to mean that the entire membership must be taken into account in computing the quorum of theSangguniang Panlalawigan, was decided under the 1987 Constitution and after the enactment of the Local Government Code of 1991. In stating that there were fourteen (14) members of the Sangguniang Panlalawigan of Compostela Valley,23 the Court in Zamora clearly included the Vice- Governor, as presiding officer, as part of the entire membership of the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

On the issue that respondent’s appointment was issued during the effectivity of the election ban, the Court agrees with the finding of the Court of Appeals and the Civil Service Commission that since the respondent’s appointment was validly issued on 18 March 2004, then the appointment did not violate the election ban period which was from 26 March to 9 May 2004. Indeed, the Civil Service Commission found that despite the lack of signature and certification of the Human Resource Management Officer of La Carlota City on respondent’s appointment papers, respondent’s appointment is deemed effective as of 18 March 2004 considering that there was substantial compliance with the appointment requirements, thus:

Records show that Atty. Rojo’s appointment was transmitted to the CSC Negros Occidental Field Office on March 19, 2004 by the office of Gelongo without his certification and signature at the back of the appointment. Nonetheless, records show that the position to which Atty. Rojo was appointed was published on January 6, 2004. The qualifications of Atty. Rojo were deliberated upon by the Personnel Selection Board on March 5, 2004, attended by Vice Mayor Jalandoon as Chairman and Jose Leofric F. De Paola, SP member and Sonia P. Delgado, Records Officer, as members. Records likewise show that a certification was issued by Vice Mayor Jalandoon, as appointing authority, that the appointment was issued in accordance with the limitations provided for under Section 325 of RA 7160 and the said appointment was reviewed and found in order pursuant to Section 5, Rule V of the Omnibus Rules Implementing Executive Order No. 292. Further, certifications were issued by the City Budget Officer, Acting City Accountant, City Treasurer and City Vice Mayor that appropriations or funds are available for said position. Apparently, all the requirements prescribed in Section 1, Rule VIII in CSC Memorandum Circular No. 15, series of 1999, were complied with.24

Clearly, the appointment of respondent on 18 March 2004 was validly issued considering that: (1) he was considered resigned as Sangguniang Panlungsod member effective 17 March 2004; (2) he was fully qualified for the position of Sanggunian Secretary; and (3) there was substantial compliance with the appointment requirements.

WHEREFORE, we DENY the petition. We AFFIRM the 14 September 2007 Decision and the 18 January 2008 Resolution of the Court of Appeals in CA-G.R. CEB-SP No. 01377.

SO ORDERED.

ANTONIO T. CARPIO Associate Justice

WE CONCUR:

RENATO C. CORONA Chief Justice

PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

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Associate Justice Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

JOSE C. MENDOZA Associate Justice

BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice

Footnotes

*Now the Representative of the 4th District of Negros Occidental. See footnote 1 of the Petition for Review,rollo, p. 12.

**Now the Mayor of La Carlota City, Negros Occidental. See page 1 of the Petition for Review, id.

1 Penned by Associate Justice Agustin S. Dizon, with Associate Justices Francisco P. Acosta and Stephen C. Cruz, concurring; id at 64-70.

2 Penned by Associate Justice Francisco P. Acosta, with Associate Justices Pampio A. Abarintos and Amy C. Lazaro-Javier, concurring; id. at 72-73.

3 Id. at 48-55.

4 Id. at 58-62.

5 CA Decision, pp. 1-4; id. at 64-67.

6 Section 9(h), Article V of PD 807 reads:

Section 9. Powers and Functions of the Commission. The Commission shall administer the Civil Service and shall have the following powers and functions:

x x x x

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(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. x x x

7 Rollo, p. 68.

8 Under Section 469(b), "[n]o person shall be appointed secretary to the sanggunian unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in law, commerce or public administration from a recognized college or university, and a first grade civil service eligible or its equivalent."

9 Rollo, p. 69.

10 Petitioners’ Memorandum dated 7 November 2008, pp. 5-6; id. at 132-133.

11 Section 7, Article IX-B of the Constitution provides that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure."

12 Rollo, p.179. The DILG Opinion No.28, s. 2000, dated 17 April 2000 reads:

Opinion No.28, s. 2000

17 April 2000

Councilors JUVY M.MAGSINO, REUEL P. LAYGO, SOLOMON J. LUMALANG, JR. WILSON A. VIRAY, and JAIME C. GUTIERREZ, JR. Sangguniang Bayan of Naujan Oriental Mindoro

Dear Councilors:

This refers to your query on how many members of the Sangguniang Bayan of Naujan, composed of eight (8) regular and two (2) ex-officio members and the vice mayor as presiding officer, must be present before the sanggunian can declare the presence of a quorum to legally transact official business.

In reply thereto, please be apprised that, for quorum to exist, the Sangguniang Bayan of Naujan must have the presence of at least six (6) of its members including the vice-mayor, which is the majority of eleven (11), in order to legally transact official business.

It must be emphasized that Section 53 of the Local Government Code of 1991 (RA7160) mandates that a majority of all the members of the sanggunian who have been duly elected and have qualified shall constitute a quorum. With the phrase "majority of all the members of the sanggunian", it is thus evident therefrom that the reckoning point should be the entire composition of the [of] the sangguniang bayan. In that regard, Section 446(a) of the Code enumerates the membership of the sangguniang bayan, consisting of "the municipal vice-mayor as presiding officer, the regular (elective) sanggunian members, the president of the municipal chapter of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members." Clearly then, the vice-mayor, as presiding officer , is also a member of the sangguniang bayan and should, therefore,be included in determining the existence of a quorum since he is included in the enumeration as to who composes the said legislative body. As a matter of fact, in the case of GAMBOA VS. AGUIRRE AND ARANETA (G.R. No 134213, July 20, 1999), the Supreme Court recognized the membership of the vice-governor (vice-mayor) in the sangguniang panlalawigan (sangguniang bayan). Accordingly, since the Sangguniang Bayan of

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Naujan is composed of a total [of] eleven (11) member who have been duly elected and have qualified, at least six (6) of its members, including the vice-mayor, must be present during any session to be able to be able to muster a quorum and to legally transact official business.

Hoping that we have clarified the matter accordingly.

Very truly yours,

ALFREDO S. LIM Secretary

13 Prior to the enactment of RA 7160, there was already in existence a local government code enacted under Batas Pambansa Blg. 337, which was approved on 10 February 1983 by the Batasang Pambansa. The pertinent provisions read:

Title Two – The Municipality

CHAPTER 3. – OFFICIALS AND OFFICES COMMON

TO ALL MUNICIPALITIES

Sec. 141. Powers and Duties [Municipal Mayor]. – (1) The mayor shall be the chief executive of the municipal government and shall exercise such powers, duties and functions as provided in this Code and other laws.

(2) He shall:

x x x

(e) Preside over the meetings of the sangguniang bayan with the right to vote only to break a tie;

x x x

Sec. 145. Functions[Municipal Vice Mayor]. – (1) The vice-mayor shall be an ex-officio member of the sangguniang bayan with all the rights and duties of any other member.

(2) He shall:

x x x

(c) Act as temporary presiding officer of the sangguniang bayan in the event of disability of the mayor to preside over a regular or special session on account of a trip on official business, absence on leave, sickness or any temporary incapacity; and

x x x

Sec. 146. Composition [The Sangguniang Bayan]. – (1) The sangguniang bayan shall be the legislative body of the municipality and shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall be the presiding officer pro tempore, eight members elected at large, and the members appointive by the President consisting of the president of the katipunang bayan and the president of the kabataang barangay municipal federation.

(2) In addition thereto, there shall be one representative each from the agricultural and industrial labor sectors who shall be appointed by the President of the Philippines whenever, as determined by the sangguniang bayan, said sectors are of sufficient number in the municipality to warrant representation, after consultation with associations and persons belonging to the sector concerned.

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Sec. 147. Session. – (1) The sangguniang bayan shall hold at least two regular sessions a month on the days which shall be fixed by resolution. Special sessions may be called by the mayor or a majority of the members of the sangguniang bayan as often as necessary. Not two sessions shall be held in one day.

(2) In the event of inability of the vice-mayor to act as temporary presiding officer on account of a trip on official business, absence on leave, sickness, or any temporary incapacity, the members constituting a quorum shall choose from among themselves the temporary presiding officer.

(3) The temporary presiding officer shall not vote even in case of a tie but he shall certify within ten days to all ordinances and resolutions enacted or adopted. If within said period the ordinances and resolutions were not signed by the temporary presiding officer,said ordinances and resolutions shall be deemed to have been signed and the municipal secretary shall forward them to the mayor for such action as may be authorized by law.

x x x x

Sec. 148. Quorum. – A majority of all the members of the sangguniang bayan shall constitute aquorum for the transaction of business. A smaller number may adjourn from day to day but may compel the immediate attendance of any member absent without good cause by issuing to the Integrated National Police assigned in the area an order for his arrest and production at the session, or impose a fine upon him in such amount as shall have been previously prescribed by ordinance.

Title Three. – The City

CHAPTER 3. – OFFICIALS AND OFFICES COMMON TO ALL MUNICIPALITIES

Sec. 172. Functions and Compensation [The Vice-Mayor]. – The vice-mayor shall:

(a) Be the presiding officer of the sangguniang panglungsod;

x x x x

Sec. 173. Composition and Compensation [The Sangguniang Panglungsod]. – Thesangguniang panglungsod, as the legislative body of the city, shall be composed of the vice-mayor, as presiding officer, the elected sangguniang panglungsod members, and the members who may be appointed by the President of the Philippines consisting of the presidents of thekatipunang panlungsod ng mga barangay and the kabataang barangay city federation.

Sec. 175. The Presiding Officer of the Sangguniang Panglungsod. – (1) The vice-mayor, as presiding officer of the sangguniang panglungsod, shall not vote except in case of a tie. He shall sign within ten days from their adoption all ordinances, resolutions and motions enacted or adopted by the said sanggunian. If after the period of ten days an ordinance or resolution is not signed by the presiding officer, the city secretary shall forward the same to the city mayor for appropriate action.

(2) If the vice-mayor cannot preside over a regular or special session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer.

Sec. 176. Quorum. – A majority of all the members of the sangguniang panglungsod shall constitute a quorum for the transaction of business, but a smaller number may adjourn from day to day and compel the immediate attendance of any member who is absent without good cause by issuing to the Integrated National Police assigned in the area an order for his arrest and production at the session, subject to penalties prescribed by law.

Title Four. – The Province

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CHAPTER 3. – OFFICIALS AND OFFICES COMMON TO ALL PROVINCES

Sec. 203. Provincial Governor as Chief Executive of the Province; Powers and Duties. – (1) The governor shall be the chief executive of the provincial government and shall exercise such powers and duties as provided in this Code and other laws.

x x x

Sec. 204. Powers, Duties and Privileges [The Vice-Governor]. – (1) The vice-governor shall be an ex-officio member of the sangguniang panlalawigan with all the rights, duties and privileges of any member thereof.

(2) He shall:

x x x

(c) Act as temporary presiding officer of the sangguniang panlalawigan in the event of inability of the governor to preside over a regular or special session on account of a trip on official business, absence on leave, sickness or any other temporary incapacity;

x x x

Sec. 205. Composition. – (1) Each provincial government shall have a provincial legislature hereinafter known as the sangguniang panlalawigan, upon which shall be vested the provincial legislative power.

(2) The sangguniang panlalawigan shall be composed of the governor, the vice-governor, elective members of the said sanggunian, and the presidents of the katipunang panlalawiganand the kabataang barangay provincial federation who shall be appointed by the President of the Philippines.

x x x

Sec. 206. Sessions. – x x x

(3) The governor, who shall be the presiding officer of the sangguniang panlalawigan, shall not be entitled to vote except in case of a tie.

x x x

Sec. 207. Quorum. – A majority of all the members of the sangguniang panlalawigan shall constitute a quorum for the transaction of business. A smaller number may adjourn from day to day but may compel the immediate attendance of any member absent without good cause by issuing to the Integrated National Police of the city or municipality where the provincial capital is situated, an order for his arrest and appearance at the session hall under pain of penalty as prescribed by ordinance.

14 464 Phil. 471 (2004).

15 Id. at 488-490.

16 Aside from the presiding officer, there were thirteen (13) other members of the Sangguniang Panlalawigan of Compostela Valley, making a total of fourteen (14) members.

17 DILG Website, www.dilg.gov.ph/PDF_File/issuances/legal_opinions/LO046S2007.pdf (visited 18 November 2011). (Boldfacing supplied)

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18 DILG Website, www.dilg.gov.ph/PDF_File/issuances/legal_opinions/DILG-Legal_Opinions-2011318-92df7c2541.pdf (visited 18 November 2011). (Boldfacing supplied)

19 137 Phil. 393 (1969).

20 An Act Making Elective the Offices of Mayor, Vice-Mayor and Councilors in Chartered Cities, Regulating the Election in Such Cities and Fixing the Salaries and Tenure in Such Offices. Approved, 19 June 1959.

21 Supra note 14.

22 Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

(b) Where there is no quorum, the presiding officer may declare a recess until such time as a quorum is constituted, or a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session.

(c) If there is still no quorum despite the enforcement of the immediately preceding subsection, no business shall be transacted. The presiding officer, upon proper motion duly approved by the members present, shall then declare the session adjourned for lack of quorum.

23 Aside from the presiding officer, there were thirteen (13) other members of the Sangguniang Panlalawigan of Compostela Valley, making a total of fourteen (14) members.

24 Civil Service Commission (Regional Office No. 6) Decision, pp. 3-4; rollo, pp. 46-47.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION (In the Result)

BRION, J.:

The constitutional issue before us is whether Atty. Rex Rojo’s (Rojo) appointment violated the constitutional ban on appointment.1 The answer to this question depends on the resolution of the prior and underlying question of whether petitioner Rojo effectively resigned from his post as sanggunian member before he was appointed as sanggunian secretary. This question, in turn, hinges on the much prior issue of the number of sanggunian members needed to validly act on Rojo’s tender of resignation.

While I concur with the conclusion reached by the ponencia, I wish to emphasize that the Vice-Mayor as presiding officer is considered a member of the sanggunian for purposes of quorum determination only. In particular, the majority’s ruling should by no means be interpreted as including the Vice-Mayor (as presiding officer) as sanggunian member, where the Local Government Code (LGC) itself prescribes a specific voting requirement that makes quorum determination irrelevant.

Brief Factual Antecedents

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On March 10, 1994, Rojo, a member of the Sanggunian Panlungsod (SP) of La Carlota City, applied for the vacant position of SP Secretary. On the March 17, 2004 session of the SP, Rojo tendered his irrevocable resignation as SP Member. At that time, Vice-Mayor Rex Jalandoon (Jalandoon), as presiding officer, and six members of a twelve-member sanggunian were present.

On March 18, 2004, Jalandoon appointed Rojo as SP Secretary and the latter immediately took his oath of office. On March 26, 2004, the appointment ban for the May 2004 elections took effect. On April 27, 2004, the Civil Service Commission (CSC) Field-Office disapproved Rojo’s appointment due to incomplete requirements. Jalandoon appealed the disapproval to the CSC Regional Office.

The 2004 elections resulted in changes in the La Carlota local government. The newly elected Mayor and Vice-Mayor of La Carlota City sought to affirm the disapproval of Rojo’s appointment, alleging that there had been no quorum when Rojo tendered his resignation before the SP. Since Rojo’s resignation could not have been validly accepted for lack of quorum, it was argued that Rojo continued to be an elective official who was ineligible for appointment to a public office under the Constitution.2

Core Issue

I submit that the quorum issue in this case can be decided by approaching the problem from the point of the question: to whom does the LGC vests the power to accept the resignation of a member of the sanggunian?

My Position

Article 82 of the LGC reads:

Section 82. Resignation of Elective Officials. – (a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities:

(1) The President, in case of governors, vice-governors, and mayors and vice-mayors of highly urbanized cities and independent component cities:

(2) The governor, in case of municipal mayors, municipal vice-mayors, city mayors and city vice-mayors of component cities:

(3) The sanggunian concerned, in the case of sanggunian members; and

(4) The city or municipal mayor, in case of barangay officials.

x x x x

(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records: Provided, however, that this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the

manner of acting upon such resignations.

This Article lays down the rule on resignations and identifies the authorities with the power to accept the resignation of particular local government officials. In the case of sanggunian members, that authority is the local legislative body – the sanggunian concerned of which the resignee is a member.

Before determining what the law exactly means in making reference to the "sanggunian concerned," Section 53 of the LGC prescribes a quorum requirement before the sanggunian can validly transact its regular official business.

Section 53. Quorum. -

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(a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

x x x x

On the other hand, Article 457 of the LGC identifies the composition of the sanggunian for the purpose of determining the "sanggunian concerned" authorized to accept the resignation of its member. Article 457 reads:

Section 457. Composition. – (a) The Sanggunian Panlungsod, the legislative body of the City shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives as members.

Based on these provisions, I believe that it is absurd not to include the presiding officer in determining whether a quorum exists since (i) the law includes him as part of the body authorized to accept an elective local official’s resignation and (ii) this body - the "sanggunian concerned" - can validly act only if there is a quorum.

Moreover, while the Vice-Mayor as presiding officer cannot vote except in case of tie,3 the determination of the quorum for purpose of accepting a resignation of a sanggunian member does not require an active participation on the part of any member of the sanggunian.

Under the LGC, the only express prohibition against the resignation of an elective local official is when he is the subject of an on-going recall process.4 Under the Anti-Graft and Corrupt Practices Act, a public officer who is the subject of a pending investigation (administrative or criminal) or prosecution5 is likewise prohibited from resigning. This prohibition, however, is for the sole purpose of preventing him from frustrating the ongoing investigation or prosecution, i.e., in order to be consistent with an individual’s constitutional right against involuntary servitude,6 a public official may resign from the service but his act will not cause the dismissal of the on-going proceeding against him.7 In other words, in accepting a resignation, the sanggunian, as a body, simply takes a passive stance on a matter that relates to the administrative duties of the Vice-Mayor himself.

The dichotomy (i.e., the counting of the Presiding Officer for purpose of quorum but without giving him the right to vote except in case of a tie) can be better appreciated if it is considered that, unlike in the old LGC, the presiding officer is empowered, as a rule, to appoint all officials and employees of the sanggunian.8 In the present case, at issue is petitioner Rojo’s resignation as a sanggunian member for the express purpose of applying for the position of sanggunian secretary whom the Vice-Mayor can appoint. In other words, woven into the question of resignation is the function of appointment that the law expressly assigned to the Vice-Mayor. These circumstances add to the reasons justifying the conclusion that the Vice-Mayor’s presence in accepting the resignation is material.

Refutation of the dissent’s reliance on Perez

Justice Del Castillo’s Dissent relies on the 1969 case of Perez v. Hon. Dela Cruz.9 The use of the Perez ruling, in my view, is misplaced.

In Perez, the Naga Vice-mayor Virginia Perez wanted to vote in the selection of (i) the secretary of the municipal board of Naga and (ii) the chairmen of the board’s various standing committees. The Court held that Perez does not possess any voting right considering that she was not a member of the municipal board.

In order to fully appreciate Perez, proper consideration of its legal setting is critical. The pertinent laws then were:

a. Republic Act (RA) 305 (the Charter of Naga). This law did not provide for the position of Vice-Mayor; and

b. RA No. 2259 (An Act Making Effective the Offices of Mayor, Vice-Mayor and Councilors in Chartered Cities xxx). This law created the position of vice-mayor in Naga, among others. Section 3 of this law, however, simply provides that "the Vice-Mayor shall be the presiding officer of the City Council or Municipal Board in all chartered cities."

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Based on these laws, Perez noted that "[RA 2259] does not decree that the vice-mayor is a member of the city council or municipal board." Necessarily, not being a member, she could not have any direct and active participation in filling the local appointive positions in Naga.

First, RA No. 2259, the applicable law at that time, did not provide for a similar provision under the LGC on the composition of the sanggunian, aside from stating that the Vice-Mayor shall be the presiding officer of the city council or municipal board of chartered cities. In fact, under RA No. 2259, the powers of the Vice-Mayor clearly show that – aside from being the presiding officer of the city council – he was merely a "spare tire"10 who could assume the powers of the Mayor only in case of the latter’s inability:11

Section 3. x x x

The Vice-Mayor shall perform the duties and exercise the powers of the mayor in the event of the latter’s inability to discharge the powers and duties of his office. In the event of a permanent vacancy in the office of mayor, the vice-mayor shall become mayor for the completion of the unexpired term. x x x

Second, Perez resolved the question of whether the presiding officer could vote in the selection of local appointive officials. In order to resolve this issue, the Court had to determine whether the presiding officer was also a member of the municipal board/city council. As previously discussed, the present case does not involve the active role of the sanggunian as a body, exercising discretion whether to favorably vote or not; only the sanggunian’s passive role in accepting the resignation of a sanggunian member is involved. Recall in this regard that under Section 82 of the LGC, the authority to accept a resignation resides in the "sanggunian concerned," and that under Article 457, the Vice-Mayor is part of the composition of the sanggunian. These distinctions can only lead to the conclusion that the Dissent cannot draw strength from Perez in determining whether there was quorum for the purpose of acting on petitioner Rojo’s resignation.

Contrary to the Dissent’s posture, we are not here giving additional role and prerogative to a presiding officer. Nor does our interpretation purport to give an active role to a presiding officer aside from what inheres to his position. We only resolve the issue of whether he should be counted for purposes of quorum on an administrative matter which relates to his duties and inheres to his position – a passive participation in the affairs of the body over which he actually presides and which he presumably influences for the common good.

The case of Zamora v. Caballero

In Zamora v. Caballero,12 the Court was confronted with the question of whether a regular sanggunian member, who filed a leave of absence and whose alleged departure overseas was not proved, should be considered in determining whether there was quorum at the time the sanggunian transacted official business. The Court ruled in the affirmative, holding that -

In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that "majority of each House shall constitute a quorum," Section 53 of the LGC is more exacting as it requires that the "majority of all members of the sanggunian…elected and qualified" shall constitute a quorum.

The difference in the wordings of the Constitution and the LGC is not merely "a matter of style and writing" as respondents would argue, but is actually a matter of "meaning and intention." The qualification in the LGC that the majority be based on "those elected and qualified" was meant to allow sanggunians to function even when not all members thereof have been proclaimed. And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave. What should be important then is the concurrence of election to and qualification for the office. And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence.

Read in light of Zamora, the fact that the Vice-Mayor is "elected" and, by virtue of his position, "qualifies" as the sanggunian’s presiding officer assumes added significance.

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I submit, however, that the force of Zamora should not go beyond what the Court decreed in that case. The legality of the Vice-Mayor’s (as presiding officer) inclusion as member of the sanggunian did not confront Zamora, which simply assumed that the presiding officer was included in the determination of the number of members required to constitute a quorum. For emphasis, Zamora resolved the issue of whether an absent regular member should be included in quorum determination; it did not rule on the inclusion of the Vice-Mayor, as presiding officer, in the sanggunian membership. The latter issue is what the Court now resolves.

The sanggunian is a collegial body performing several legislative and non-legislative functions.13 Under the LGC, the voting requirement for an affirmative action on the part of the sanggunian varies depending on the particular power to be exercised or the measure to be adopted. The voting requirement could be (i) two-thirds (2/3) of all its members;14 or (ii) two-thirds (2/3) vote of the members present, there being quorum;15 or (iii) three-fourths (3/4) of all its members;16 or (iv) majority vote of all the members;17 or (vi) simply concurrence of the sanggunian concerned;18 or (vii) affirmative vote of a majority of the members present, there being a quorum;19 or (viii) unanimous vote of the sanggunian concerned.20

If the voting level required would engage the entirety of the sanggunian as a collegial body, making the quorum requirement least significant, there is no rhyme or reason to include the presiding officer’s personality at all. The possibility of that one instance where he may be allowed to vote is nil. To include him in sanggunian membership without this qualification would adversely affect the statutory rule that generally prohibits him from voting.

To illustrate, in disciplining members of the sanggunian where the penalty involved is suspension or expulsion, the LGC requires the concurrence of two-thirds (2/3) of all the members of the sanggunian.21 If the Sanggunian has thirteen (13) regular members (excluding the presiding officer), the votes needed to impose either of the penalty is eight. However, should the presiding officer be also included, therefore raising the membership to fourteen (14), – on the premise that he is also sanggunian member – even if he cannot vote in this instance, an additional one vote is required – i.e., nine votes are required – before the penalty is imposed. The presiding officer’s innocuous inclusion as sanggunian member negatively impacts on the prohibition against him from voting since his mere inclusion affects the numerical value of the required voting level on a matter where generally and by law he has no concern.

For the foregoing reasons and qualifications, I vote to DISMISS the petition and join the result of Justice Carpio’s ponencia.

ARTURO D. BRION Associate Justice

Footnotes

1 Article IX-B, Section 7, 1987 Constitution.

2 Article IX-B, Section 7, par. 1, 1987 Constitution.

3 Local Government Code, Section 49(a).

4 Id., Section 73.

5 For an offense under Republic Act No. 3019 or under the Revised Penal Code provisions on Bribery, (RA 3019, Section 12).

6 Section 18 (2), Article III of the 1987 Constitution.

7 Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001, 353 SCRA 452, 506-507.

8 Local Government Code, Section 456 (a) 2 and Section 463 (a).

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9 137 Phil. 393 (1969).

10 Page 649 of The Local Government Code Revisited 2007 by Sen. Aquilino "Nene" Pimentel, Jr.

11 Under the Local Government Code, the Vice-Mayor is empowered to appoint all officials and employees of the Sanggunian Panlungsod [Section 456(a)2]. He can also exercise such other powers and functions as may be prescribed by law or ordinance.

12 464 Phil. 478 (2004).

13 Id. at 490.

14 Local Government Code, Section 11, Section 50 b(5), Section 54 a, Section 447 a(2)(xii) and Section 458.

15 Id., Section 52(d).

16 Id., Section 125.

17 Id., Section 447 a(2)ii, Section 447 a(2)iii, Section 447 a(2)iv, Section 447 a(2)v, Section 447 a(3)vii, Section 443 d; Section 458 a(2)ii, Section 458 a(2)iii, Section 458 a (2)iv, Section 458 a(2)v, Section 458, a(3) vii, Section 454 d; and Section 468 a(2)ii, Section 468 a(2)iii, Section 468 a(2)iv, Section 468, a(2)v, Section 463 d.

18 Id., Section 36.

19 Id., Section 52(c).

20 Id., Section 13(d).

21 Id., Section 50 b(5).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

DEL CASTILLO, J.:

The best interpreter of a statute is the statute itself.1

Among the questions raised in the petition is whether respondent’s resignation from the Sangguniang Panlungsod was effective. According to Section 82 of Republic Act (RA) No. 7160 or the Local Government Code (LGC), the resignation is effective when it is presented before an open session of the concerned sanggunian and duly entered in its records.2 Relating this to Section 53,3 the session where the resignation is read must have a quorum, which is defined as the majority "of all the members of the sanggunian." Majority is defined as a number greater than half of the total.4

In the instant case, respondent’s resignation was read in a session where six councilors and the presiding officer were in attendance, while six other councilors were absent. Given that councilors in attendance and in absentia were equal in number, it became imperative to determine whether the presiding officer should be counted for purposes of quorum. If he is counted, there was a quorum of the sanggunian and respondent’s resignation was effective. If the presiding officer is not counted, there was no quorum and respondent’s resignation was ineffective. Thus, the resolution of the controversy is centered on whether the phrase "of all the members of the sanggunian" in

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Section 53 of the LGC refers to the entire composition of the sanggunian (including the presiding officer) or only the members of the sanggunian (excluding the presiding officer).

While both parties referred to Section 457 of the LGC on the composition of the Sangguniang Panlungsod for their respective positions, they emphasized different phrases thereof. For the respondent, the phrase "of all the members of the sanggunian" includes the presiding officer because he is included in the composition of the legislative body. Respondent’s reading of Section 457 thus made the following emphasis:

Section 457. Composition. (a) The sangguniang panglungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panglungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

Respondent contends that since the presiding officer is included in the composition of the sanggunian, he should also be included in the phrase "of all the members of the sanggunian."

On the other hand, petitioners argue that the presiding officer is not included in the phrase "of all the members of the sanggunian" because Section 457 does not make him a member of the sanggunian. Petitioners’ reading of Section 457 focuses on the following qualifying phrases:

Section 457. Composition. (a) The sangguniang panglungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panglungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

In finding that the presiding officer is also a member counted for purposes of quorum, the ponencia cites three grounds: First, it argues that Section 457 clearly includes the presiding officer in the composition of the sanggunian, which necessarily means that he is a member counted for purposes of quorum. It submits that a contrary construction would present an anomaly where the presiding officer has the power to break a tie-vote in the sanggunian but is not counted for purposes of quorum. Second, it claims that in Zamora v. Caballero,5 this Court has ruled that the Vice Governor, as Presiding Officer of the Sangguniang Panlalawigan, is part of the entire membership of the sanggunian who must be included in computing the quorum. Finally, it cites DILG Opinion Nos. 46, S. 2007 and 13, S. 2010 stating that the vice-mayor is included in determining the quorum of the sanggunian.

I regret that I cannot accept the ponencia's arguments.

I. Section 457 of the LGC does not include the presiding officer as member of the sanggunian for purposes of quorum.

The vice-mayor is not a member, even if he is a part of the composition of the Sanggunian. Section 457 itself does not treat everyone in the composition of the sanggunian as members. Instead, Section 457 divides the composition of the sanggunian into two: (a) the vice-mayor, as presiding officer, and (b) the rest, as members. This division is not an imaginary distinction, but is dictated by the very language of Section 457:

Section 457. Composition. (a) The sangguniang panglungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panglungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

There are two qualifying phrases in this provision – "as presiding officer" and "as members." Qualifying phrases refer only to the words to which they are immediately associated. The phrase "as presiding officer" refers only to the vice- mayor, while the phrase "as members" refers only to the component parts that are mentioned after the phrase "as presiding officer." Since the phrase "as members" cannot in any manner refer to the vice-mayor, Section 457 itself does not support the argument that the vice-mayor is a member that is included in the quorum requirement "of all the members of the sanggunian."

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With due respect, the ponencia ignores the foregoing division or distinction made by Section 457, by the expedient of ignoring the qualifiers found in Section 457. I am unable to accept this because no valid reason was offered for such selective reading of Section 457. It is a basic rule of statutory construction that all the words in a statute should be given effect; thus, the qualifiers cannot be disregarded without doing violence to the provision.

Going over the relevant provisions of the LGC, I find nothing therein which makes the presiding officer also a member of the legislative body. Even in Section 457, which respondent cites, the city vice-mayor was described as the presiding officer of the sanggunian, not a member:

SEC. 457. Composition. – (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women; and, as shall be determined by the sanggunian concerned within ninety (90) days prior to the holding of the local elections, one (1) from the agricultural or industrial workers; and one (1) from the other sectors, including the urban poor, indigenous cultural communities, or disabled persons.

(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided by law.

In describing the composition of the sangguniang panlungsod, Section 457 states that it has the city vice-mayor as its presiding officer, and the regular members, ex officio members, and sectoral representatives, as members. The present wording of the sanggunian’s composition, when read in conjunction with Section 53, which describes quorum as "a majority of all the members," leads to the conclusion that quorum refers to the majority of the regular, ex officio and sectoral members. The word "all" was added to encompass the three kinds of members of the sanggunian; not to encompass its entire composition.

The inclusion of the presiding officer in the composition of the sangguniang panlungsod is only logical considering that the presiding officer is the administrative head of the said body. But his inclusion as such does not automatically make him a member thereof. If it was the lawmakers’ intent to make him a member of the body, the provision could have easily been made to reflect such an intention.

Moreover, the Local Government Code treats the vice-mayor and his office separately from that of the Sangguniang Panlungsod. The powers and duties of the vice-mayor are provided in Section 456 and there is nothing therein which states or even suggests that he is also a member of the Sangguniang Panlungsod:

Article Two. – The City Vice-Mayor

SEC. 456. Powers, Duties and Compensation. – (a) The city vice-mayor shall:

(1) Be the presiding officer of the sangguniang panlungsod and sign all warrants drawn on the city treasury for all expenditures appropriated for the operation of the sangguniang panlungsod;

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlungsod, except those whose manner of appointment is specifically provided in this Code;

(3) Assume the office of the city mayor for the unexpired term of the latter in the event of permanent vacancy as provided for in Section 44, Book I of this Code;

(4) Exercise the powers and perform the duties and functions of the city mayor in cases of temporary vacancy as provided for in Section 46, Book I of this Code; and

(5) Exercise such other powers and functions as may be prescribed by law or ordinance.

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(b) The city vice-mayor shall receive a monthly compensation corresponding to Salary Grade twenty eight (28) for a highly urbanized city and Salary Grade twenty six (26) for a component city, as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto.

Chapter 3, Title II of Book I of the Local Government Code, which is entitled Local Legislation also did not describe the city vice-mayor as a member of the Sangguniang Panlungsod. Section 49 thereof was devoted to designating the vice-mayor as the presiding officer of the sanggunian, nothing more.

The law is clear: the city vice-mayor is the presiding officer of the sangguniang panlungsod, and not a member. As such, the vice-mayor should not be counted for purposes of quorum.

This interpretation of the Vice-Mayor’s role in the Sangguniang Panlungsod also finds support from the congressional deliberations of the bills which eventually became Republic Act (RA) No. 7160 or the LGC. The deliberations on the Senate floor reveal that the city vice-mayor’s role in the Sangguniang Panlungsod was that of a presiding officer with administrative duties. Not once did our lawmakers intimate that the vice-mayor’s powers extend to the legislative functions of a Sangguniang Panlungsod member.

On August 6, 1990, Senator Ernesto Maceda (Sen. Maceda) suggested that, unlike sanggunian members who are allowed limited practice of profession, the incumbent vice-mayors should be prohibited from practicing their professions because they will be busy with their administrative functions in the sanggunian. He stated that the vice-mayors will now "be administrative heads. They will sign appointments; they will prepare the budget for the x x x sanggunian. The vice-mayor, as presiding officer acquires a lot of administrative duties."6 Sen. Maceda also proposed that the vice mayors be given monthly salaries instead of per diems because they now have administrative duties as presiding officers of their respective sanggunian.7

On September 11, 1990, Sen. Pimentel revealed that some mayors resist the proposal to make the vice-mayors the presiding officers of the sanggunian.8

The deliberations before the House of Representatives also revealed that the only intention of its members was to make the vice-mayor the presiding officer of the sanggunian. No mention was ever made that the vice-mayor would also have the role and prerogatives of a sanggunian member.9

In maintaining that the presiding officer should be counted for purposes of quorum, the ponencia puts emphasis on the presiding officer’s tie-breaking vote in the sanggunian.10 According to the ponencia, the conferment of this power on the presiding officer naturally makes him a member of the sanggunian.

I disagree. Contrary to the inference drawn by the ponencia, the fact that a presiding officer can only vote on very limited and exceptional occasions (in case of a tie) would tend to show that he is not considered a member of the sanggunian. A presiding officer’s right to vote is highly contingent, very much unlike the actual members whose right to vote is absolute (i.e., they can always vote).

Just like other deliberative assemblies, the sanggunian acts through voting.

Official business is transacted by a majority vote (or 2/3 vote in some cases), where each member gets one vote. When the law deprived the presiding officer of the right to vote on the business of the sanggunian, the law declares that his presence is not determinative of whether the body can or cannot transact official business. His tie-breaking vote would not alter this, as it is merely an exigency measure to prevent deadlocks in the legislative body. It is no different from drawing straws or flipping a coin to settle a deadlocked situation. Thus, if the presiding officer’s presence is not determinative of the body’s ability to transact official business, why should he be counted for purposes of quorum?

According to American Jurisprudence, the conferment of a tie-breaking vote does not necessarily confer membership on a presiding officer:

§6. Presiding officer

x x x x

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Usually, the presiding officer of a body does not have a vote except in case of a tie, but this power does not of itself make the officer a member of the body. Where the presiding officer is a member of the body, and as such member is entitled to vote with the other members, the fact of being chosen to act as presiding officer does not remove that privilege.11 (Emphasis supplied.)

§7. Quorum

x x x x

The fact that a statute gives a certain official the right to cast the deciding vote in case of a tie in a governmental body does not of itself make that official a member of that body for the purposes of ascertaining a quorum or majority, or for any other purpose. However, when an official is made a member of a governmental body by its charter, the fact that he is given the right to vote only in case of a tie does not affect his membership, and he must be counted toward a quorum and in determining the number of votes necessary to pass a measure.12 (Emphasis supplied.)

Simply put, the presiding officer is not a member by the mere fact that he is the presiding officer of the body and that he has a tie-breaking vote. He only becomes a member when the law says he is so.

The authority on the issue of whether a presiding officer of a local legislative body is also a member thereof is Perez v. Hon. Dela Cruz.13 The Court held therein that a city vice-mayor who serves as presiding officer of the local legislative board cannot be considered a member thereof, in the absence of any specific statutory authority constituting him as a member. Otherwise stated, a presiding officer will only have the same rights as the members of the local legislative council when the law itself confers on him such membership status:

[I]n the absence of any statutory authority constituting the vice-mayor as a member of the municipal board, in addition to being the presiding officer thereof, we cannot read into the law something which is not there. For, as aptly put, differences in law beget differences in legal effects.14 (Emphasis supplied.)

In Perez, the charter of Naga City15 simply provided that "the vice-mayor shall be the presiding officer of the City Council or Municipal Board." On that basis the Court said that the vice-mayor is not a member of the municipal board:

In no manner does the law, either in its original form under Rep. Act 305, or in its amendatory shape under Rep. Act 2259, constitute the vice- mayor as a member of the municipal board. It simply says that "the vice-mayor shall be the presiding officer of the City Council or Municipal Board." Nothing more.

In this connection, American Jurisprudence has this to say:

"When the statutes provide that the mayor shall preside at the meetings of the municipal council, he is a constituent part of the council for certain purposes, and he sits and acts therein, but he is not in any proper sense a member of the council, unless the statutes expressly so provide."

x x x x

The mere fact, therefore, that the vice-mayor was made the ‘presiding officer’ of the board did not ipso jure make him a member thereof; and even if he "is an integral part of the Municipal Board" such fact does not necessarily confer on him "either the status of a regular member of its municipal board or the powers and attributes of a municipal councilor." In sum, the vice-mayor of Naga possesses in the municipal board of Naga no more than the prerogatives and authority of a "presiding officer" as such, and no more.16 (Emphasis supplied.)

While Perez was decided prior to the enactment of the LGC, the principle remains the same. The law determines whether the vice-mayor, as presiding officer of the local legislative body, is considered a member thereof. If the law provides that he is a member, the presiding officer should have all the rights and privileges of a member, in addition to being a presiding officer. This includes the right to be counted for purposes of determining quorum. On the other hand, if the law does not make the presiding officer a member, there is no basis for conferring membership on him.

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In the language of Perez, "[t]he mere fact, therefore, that the vice-mayor was made the 'presiding officer' of the board did not ipso jure make him a member thereof."

The ruling in Perez that a presiding officer is not always a member of the body is not alone in the legal wilderness. There are a number of American decisions supporting Perez.

The facts of People ex rel. Lewis v. Brush17 are similar to the case at bar. Under the charter of the city of Mt. Vernon, the city’s common council is composed of 10 aldermen, with the mayor as its presiding officer. A quorum for the transaction of the council’s business is defined as a majority of the common council.

After the mayoral elections, the canvass was conducted by the common council (as mandated by the charter), but only the mayor and five aldermen18 were present. The other five aldermen were absent.

Lewis filed a mandamus petition to compel the defendants (the common council and mayor of the city of Mt. Vernon) to recognize him as the new mayor of the said city. He maintained that there was a proper quorum during the canvassing because the mayor is also a member of the common council. He cited as his basis Section 159 of the charter which states that "[i]n the proceedings of the common council each member present shall have a vote except the mayor when presiding, who shall have only a casting vote when the votes of the other members are tied."

The Court denied Lewis’ application. It held that there was no quorum of the common council during the canvassing of the votes because there were only five members of the council present. The Court held that the mayor is not a member of the common council because the statute itself does not say in express terms that he is a member. It explained that "[w]hen the common council xxx convene[s] to make a canvass, [the mayor’s] functions are merely those of a presiding officer, without any voting power except in case of a tie. He is no more to be counted in ascertaining whether a quorum is present than the lieutenant governor can be counted to make up a quorum of the state senate because the constitution gives that officer a casting vote therein."

In City of Somerset v. Smith,19 the City of Somerset, through its board of council entered into a contract with Smith for the franchise of an electric light and power plant. The resolution was approved by three members and the mayor, who is the chairman of the board. The other three members were absent.

The Court invalidated the contract between the city and Smith for not having been passed by a majority of the board of council. It was explained that the mayor who is designated as the "chairman of the board" and has a tie-breaking vote should not be considered as a member of the board in computing a quorum for the transaction of business. This is because a quorum necessarily means a majority of the members of the council, elected as such. The mayor, who serves as the chairman of the board, should not be included in the determination of quorum.

Bybee v. Smith20 is also relevant. Under the statute governing the City of

Glasgow, "a majority of the members shall constitute a quorum for the transaction of business." It likewise provided that "the mayor shall preside at all meetings of the council, and may vote in case of a tie vote of the council." Based on these provisions, the Court of Appeals of Kentucky invalidated an ordinance that was passed by only three attending members and the mayor (three other members were absent). The Court explained that the mayor should not be included in the determination of quorum because the statute excluded him from the privileges of a member, except for a vote in case of a tie. It clarified that a quorum of the council means at least four members must have been present, not counting the mayor therein.

These jurisprudence show that a presiding officer is not necessarily a member of the body over which he presides. His authority to break a tie does not in itself make him a member.

Relating these doctrines to Section 457 of RA 7160, which referred to the vice-mayor only as the presiding officer of the sanggunian, the inevitable conclusion is that the law only designated the vice-mayor as the presiding officer of the sanggunian and not a member of the sanggunian. Thus, he should not be considered a member, even if he has a tie-breaking vote. We cannot read into Section 457 what is not there.

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Aside from the fact that the presiding officer cannot vote in the regular transaction of sanggunian business (where there is no tie vote to break), it is also noteworthy that the presiding officer can never vote in important legislative matters where a supermajority or a 2/3 vote of all the members is required (e.g., to override an executive veto,21closure and opening of roads,22 suspension or expulsion of members,23 grant of tax exemptions, incentives or reliefs to entities engaged in community growth-inducing industries).24 In these instances where a 2/3 vote is required, the presiding officer will never be called upon to break a tie. When the body is tied or equally divided, it would simply mean that the proposal fails to pass, as the supermajority requirement of 2/3 is not met.

As mentioned before, the sanggunian transacts its official business by voting. The severe limitations on the voting right of the presiding officer reveal that, for the most part, he cannot take part in transacting official business in the sanggunian. Since the quorum requirement is intended to ensure the presence of a majority of the body capable of transacting business, an official who is not necessary for transacting business should not be counted in determining the quorum.

II. Zamora v. Caballero is not in point because it did not resolve the issue of whether the phrase "of all the members of the sanggunian" in Section 53 of the LGC refers to the entire composition or only to the members.

The ponencia cites Zamora v. Caballero25 as authority for the proposition that the entire membership of the sanggunian should be taken into account in the determination of quorum.

Two important issues on quorum were resolved in Zamora: (1) whether a member, sitting as temporary presiding officer, can vote even without a tie;26 and (2) whether a board member on leave of absence due to foreign travel should still be included for purposes of quorum.27

On the first issue, the Court held that a board member who sits as temporary presiding officer cannot exercise his right to vote as a regular member. He can only vote in case there is a tie.28

On the second issue, the Court held that a board member who is on foreign travel is counted for purposes of quorum so long as that board member has already been "elected and qualified." The Court explained that Section 53 of the LGC provides an exacting definition of quorum, which is "majority of all the members of the sanggunian... elected and qualified." It goes on to explain:

On the applicability of Avelino[v. Cuenco]29 to the present case: The issue in said case was whether there was a quorum in a meeting attended by only 12 of 24 senators, one having been in the hospital while another was out of the country. This Court held that although the total membership of the Senate was 24, the presence of 12 members already constituted a quorum since the 24th member was outside the country and beyond the coercive power of the Senate.

In the instant case, there is nothing on record, save for respondents’ allegation, to show that Board Member Sotto was out of the country and to thereby conclude that she was outside the coercive power of the Sanggunian when the February 8 and 26, 2001 sessions were held. x x x

x x x x

Also, in Avelino, the legislative body involved was the Senate and the applicable rule on quorum was that embodied in Article VI, Section 10 of the 1935 Constitution x x x

x x x x

The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of Compostela Valley Province, and the applicable rule respecting quorum is found in Section 53 (a) of the LGC x x x

x x x x

The difference in the wordings of the Constitution [on senate quorum requirement] and the LGC is not merely "a matter of style and writing" as respondents would argue, but is actually a matter of "meaning and intention." The qualification in the LGC that the majority be based on those "elected and qualified" was meant to allow sanggunians

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to function even when not all members thereof have been proclaimed. And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave. What should be important then is the concurrence of election to and qualification for the office. And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence.

The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority of the sanggunian members present when there is no quorum.30

Zamora thus construed quorum of the sanggunian with respect to the phrase "elected and qualified" (vis-à-vis the yardstick of "within the coercive power of the body," as pronounced in Avelino). It did not in any manner resolve the issue of whether the phrase in Section 53 of the LGC "of all the members of the sanggunian" refers to the entire composition in Section 457, or only to the members. It was never the issue because the parties in Zamora presented their case upon the assumption that the presiding officer is counted in the quorum. Neither party raised this matter as an issue; hence, Zamora did not resolve the issue.

III. The DILG Opinions are mere declarations of the DILG as the implementing agency; they do not bind the Court which has the primary mandate and duty to interpret the law.

The ponencia also cites the opinions emanating from the Department of Interior and Local Government (DILG) that the presiding officer is included for purposes of quorum. A careful reading of the DILG opinions, however, will expose them as totally bereft of rational and legal basis. These opinions, in a nutshell, state that the presiding officer is included in the quorum merely because he is included in the composition of the sanggunian. It assumes that everyone in the composition of the sanggunian is a member, which assumption is false because, as I have already discussed, Section 457 itself divides the composition of the sanggunian into two: (a) the vice-mayor, as presiding officer, and (b) the rest, as members.

While these DILG opinions may have persuasive effect because the DILG is the implementing agency of the LGC, this Court is not in any way bound by the DILG’s pronouncements, especially when its opinion does not seek to persuade a critical mind but merely makes a declaration. The Court has the primary duty to interpret the law, and any construction that is clearly erroneous cannot prevent the Court from exercising its duty. The court’s mandate is to the law and laws remain despite non-use, non-observance and customs to the contrary.31

The resistance to the idea that a presiding officer is not necessarily a member, may perhaps spring from the fact that in our political system, the two houses of Philippine Congress have presiding officers who are also members thereof. But what must be remembered is that the House Speaker and the Senate President were elected first and foremost as a congressman and a senator, respectively.32 They are both elected by their respective constituency as legislators, just as the rest of the members of their respective houses. Their roles of presiding officers are mere adjuncts to their primary duties as legislators.

Clearly, the role of the vice-mayor is different from that of the House Speaker and the Senate President. Unlike the two, the vice-mayor is not elected as a legislator. He is elected as an executive or, more particularly, as the successor of the local chief executive.

Of interest and distinct nature is the Judicial and Bar Council (JBC).1âwphi1 Article VIII, Sections 8 and 9 of the Constitution describes the Judicial and Bar Council and its duties, as follows:

Sec. 8 (1). A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

(2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. x x x

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x x x x

(5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.

Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. (Emphasis supplied.)

At first blush, Section 8(1) above may appear to be the same as that of Section 457 of the LGC on the composition of the Sangguniang Panlungsod, because it describes the Chief Justice "as Chairman" and the others as "Members". However, unlike the LGC provisions on the sanggunian, the constitutional provisions on the JBC do not include any provision that refers solely to the members of the JBC. Thus, any apparent distinction between the JBC chairman and the JBC members is not real. The JBC chairman and the members are on equal terms in performing tasks within the JBC, as shown by the phrases "prepared by the Judicial and Bar Council," "the Council shall have the principal function of recommending appointees," and "it (the Council) may exercise such other functions and duties as the Supreme Court may assign to it." This is in stark contrast to the LGC provisions on quorum and voting, which do not refer to "the Sangguniang Panlungsod" as a whole, but only to "all the members of the sanggunian."

The conclusion that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, is not a member for purposes of determining quorum also serves to protect the checks and balances between the executive and the legislative powers within the local government units.

It must be remembered that while the vice-mayor is not strictly speaking vested with executive power while he sits as presiding officer of the sanggunian, among his functions is to take over the chief executive position, either temporarily or permanently.33 When he does take over, one of the crucial functions of the mayor that he assumes is the power to approve or veto34 ordinances of the sanggunian. If we construe the quorum requirement to include the vice-mayor, the vice-mayor will occupy a unique position of affecting an ordinance both at the legislative and executive levels. The presiding officer could affect legislation by his attendance or absence from sessions (thereby creating or preventing a quorum for the transaction of official business) and, if he later occupies the mayoral seat in a temporary or permanent capacity, he would also affect the same legislation by approving or vetoing the sanggunian’s actions. This potential fusion of powers is inimical to the checks and balances created by the separation of powers between the local chief executives and the legislative bodies.

My position, in sum, is this: The presiding officer of the sanggunian, while a part thereof, is not a member that should be counted for purposes of quorum. He is not defined by the law as a member; and the law, by denying him the right to vote as the other members, does not make his presence determinative of whether the body can proceed to transact its business. Quorum is not just a matter of counting attendance. It requires counting the people that matter for the conduct of a valid business. Otherwise stated, to be a presiding officer, whether a member or not, is to be part of the sanggunian.35 But while he is a part of the sanggunian, the law simply does not make him a member thereof such that he will be counted for purposes of quorum.

In view of the foregoing, I vote to GRANT the petition.

MARIANO C. DEL CASTILLO Associate Justice

Footnotes

1 Optima statuti interpretatrix est ipsum statutum.

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2 SEC. 82. Resignation of Elective Local Officials. (a) Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities:

x x x x

(3) The sanggunian concerned, in case of sanggunian members; x x x

x x x x

(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records: Provided, however, That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations.

3 SEC. 53. Quorum. (a) A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results.

4 Zamora v. Caballero, 464 Phil. 471, 488-489 (2004), citing Perez v. Hon. Dela Cruz, 137 Phil. 393, 410 (1969).

5 Id.

6 Deliberations on the Local Government Code, Part II, August 6, 1990, pp. 45-46.

7 Id. at 51.

8 Deliberations on the Local Government Code, Part II, September 11, 1990, p. 11.

9 Deliberations on the Local Government Code, Part I, August 14, 1990.

10 SEC. 49. Presiding Officer. -- (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

11 59 Am. Jur. 2d (1987 ed.), Parliamentary Law, Section 6.

12 59 Am. Jur. 2d (1987 ed.), Parliamentary Law, Section 7.

13 137 Phil. 393 (1969).

14 Id. at 402-403.

15 REPUBLIC ACT No. 305, as deemed amended by REPUBLIC ACT No. 2259.

16 Perez v. Hon. Dela Cruz, supra note 13 at 404-405.

17 83 Hun 613, 64 N.Y. St. Rep. 139, 31 N.Y.S. 586 (1894).

18 Aldermen are members of legislative bodies in cities (Webster’s New International Dictionary, unabridged version, 1981).

19 20 Ky. L. Rptr. 1488, 105 Ky. 678, 49 S.W. 456 (1899).

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20 22 Ky. L. Rptr. 1684, 61 S.W. 15 (1901).

21 Republic Act No. 7160, Sec. 54(a) and Sec. 55(c).

22 Republic Act No. 7160, Sec. 21.

23 Republic Act No. 7160, Sec. 50(5) First Proviso.

24 Republic Act No. 7160, Sec. 458(2) (xii).

25 Supra note 4.

26 Zamora v. Caballero, id. at 491-492.

27 Id. at 487-490.

28 Id. at 491-492.

29 83 Phil. 17 (1949).

30 Zamora v. Caballero, supra note 4 at 489-490. Emphasis supplied.

31 Civil Code, Art. 7.

32 Constitution, Article VI, Sec. 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

x x x x

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.

x x x x

Sec. 16 (1). The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members.

x x x x

33 Local Government Code, Sections 44 and 46.

34 SEC. 54. Approval of Ordinances. – (a) Every ordinance enacted by the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan shall be presented to the provincial governor or city or municipal mayor, as the case may be. If the local chief executive concerned approves the same, he shall affix his signature on each and every page thereof; otherwise, he shall veto it and return the same with his objections to the sanggunian, which may proceed to reconsider the same. x x x

35 Perez v. Hon. Dela Cruz, supra note 9 at 402-403.

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Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 182069 July 03, 2012

ARNOLD D. VICENCIO, Petitioner vs. HON. REYNALDO A. VILLAR and HON. JUANITO G. ESPINO, JR., in their capacity as Acting Chairman and Commissioner, respectively, of the Hon. Commission on Audit, and ELIZABETH ZOSA, Respondents.

D E C I S I O N

SERENO, J.:

This is a Pctitiur; for Certiorari under Rule 64, in relation to Rule 65 of the Rules or Court, secking to annul Decision No. 2008-022 dated 15 February 2008 of the Commission on Audit (COA). 1

On 30 October 2003, the City Council or the Sangguniang Panglungsod ng Malabon (SPM), presided over by Hon. Benjamin Galauran, then acting Vice-Mayor, adopted and approved City Ordinance No. 15-2003, entitled "An Ordinance Granting Authority to the City Vice-Mayor, Hon. Jay Jay Yambao, to Negotiate and Enter into Contract for Consultancy Services for Consultants in the Sanggunian Secretariat Tasked to Function in their Respective Areas of Concern x x x."2

On 9 December 2003 and 1 March 2004, the City of Malabon, represented by Hon. Galauran, entered into separate Contracts for Consultancy Services with Ms. Jannette O. Vijiga,3 Mr. Meynardo E. Virtucio4 and Mr. Hernando D. Dabalus (2003 Consultancy Contracts).5

Subsequently, during the May 2004 elections, petitioner was elected City Vice-Mayor of Malabon. By virtue of this office, he also became the Presiding Officer of the SPM and, at the same time, the head of the Sanggunian Secretariat.

To complement the manpower requirements of the existing Sanggunian Secretariat, petitioner deemed it necessary to hire the services of consultants with the end view of augmenting and upgrading its performance capability for the effective operation of the legislative machinery of the city.

Petitioner thus wrote a letter dated 19 July 2004 to Atty. Danilo T. Diaz , the City Legal Officer of Malabon, inquiring as to whether it was still necessary for the SPM to ratify a newly entered contract of consultancy services between it and the candidate for the consultancy position. The letter states in part:

This is an inquiry regarding the hiring of consultants by virtue of an ordinance giving authority to the City Vice Mayor to enter into consultancy services (Ordinance no. 15-2003).

As you very well know, the services of the consultants hired by the former administration, particularly by the Sangguniang Panglungsod, ended last June 30, 2004. Hence, we are confronted by this inquiry: Would there still be a need for the Sangguniang Panglungsod to ratify a newly entered contract of consultancy services between the SP and the candidate for said consultancy position? Kindly render your humble opinion on the matter.6

Atty. Diaz then responded to the said inquiry through a letter dated 26 July 2004, which categorically stated that ratification was no longer necessary, provided that the services to be contracted were those stipulated in the ordinance. The letter states thus:

In response to your query contained in your letter dated July 19, 2004, regarding the hiring of consultants for the Sanggunian Secretariat by virtue of Ordinance No. 15-2003, giving authority to the City Vice Mayor to

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enter into consultancy services and whether there is still a need for ratification of said consultancy contract by the Sanggunian, the answer is, such a ratification is no longer necessary provided that the contract of consultancy services to be executed is precisely the services stipulated in said ordinance. In essence, the Ordinance no. 15-2003 already stated what consultancy services should be secured and hence, if the contract for consultancy services to be executed is precisely those as provided in said ordinance, ratification is a mere suplasage.7

On 21 January 2005, the SPM adopted City Ordinance No. 01-2005 entitled "An Ordinance Appropriating Funds to Cover the Various Expenditures and Activities of the Local Government of Malabon City for the Period from January 01, 2005 to December 31, 2005." The total amount of funds appropriated was P 511,070,019 for the spending of the entire city government. Out of this amount, P 792,000 was earmarked for consultancy services under the Legislative Secretariat.

On 1 February 2005, petitioner, representing the City Government of Malabon City, entered into Contracts for Consultancy Services with Ms. Jennifer S. Catindig8 and Atty. Rodolfo C. delos Santos (2005 Consultancy Contracts).9 On 11 February 2005, another Contract for Consultancy Services was entered into between Mr. Marvin T. Amiana10 and the city government.

After the signing of their respective contracts, the three consultants rendered consultancy services to the SPM. Thereafter, they were correspondingly paid for their services pursuant to the contracts therefor.

On 19 December 2005, Audit Observation Memorandum (AOM) No. 2005-12-01911 was issued by Ms. Atenie F. Padilla, Supervising Auditor of the City Auditor’s Office, Malabon City, disallowing the amount of three hundred eighty-four thousand nine hundred eighty pesos (P384,980) for being an improper disbursement. The AOM disclosed the following pertinent findings:

City Ordinance No. 15-2003 dated October 30, 2003 was used as basis of authority in hiring consultants. Analysis of the said City Ordinance revealed that it specifically authorized the former Vice-Mayor, Hon. Mark Allan Jay G. Yambao to enter into a contract for consultancy services in the Sangguniang Secretariat covering the period June to December 2003 only. Said ordinance does not give authority to the incumbent City Vice-Mayor Arnold D. Vicencio to hire consultants for CY 2005.

Progress accomplishment report for the month, to determine the services rendered were not attached to the disbursement vouchers.

No information as to what method had been made by BAC in the hiring of individual consultants whether through the selection from several registered professionals who offered consulting services or through direct hiring without the intervention of the BAC.

Copies of the approved contracts together with supporting documents were not submitted to the City Auditor’s Office within five (5) days from execution of the contract for review and evaluation contrary to COA Circular No. 76-34 dated July 15, 1976, thus the City Auditor’s Office was precluded to conduct timely review/evaluation to inform management of whatever deficiencies noted so that immediate remedial measures could be properly taken.12

On 12 May 2006, respondent Elizabeth S. Zosa issued Notice of Disallowance (ND) No. 06-009-101 (05)13containing the result of the evaluation conducted on the AOM issued by Ms. Padilla. The persons held liable for the disallowed amount relative to the hiring of the three consultants were the following: (1) petitioner, in his capacity as City Vice-Mayor, for certifying that the expenses/cash advances were necessary, lawful and incurred under his direct supervision and for approving the transaction; (2) Mr. Eustaquio M. Angeles, in his capacity as Officer-in-Charge, City Accountant, for certifying to the completeness and propriety of the supporting documents of the expenditures; and (3) Ms. Catindig, Atty. Delos Santos, and Mr. Amiana, as payees. The above-named persons were further directed to settle the said disallowance immediately. Pursuant to Sections 48, 50 and 51 of Presidential Decree No. (P.D.) 1445, the parties found liable had a period of six months within which to file an appeal. The disallowance was anchored on the following findings:

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- There was no authority for the incumbent City Vice-Mayor Arnold D. Vicencio to hire consultants for CY 2005. City Ordinance No. 15-2003 dated October 30, 2003 which was used as basis of authority to hire consultants specifically authorized the former Vice-Mayor, Hon. Mark Allan Jay G. Yambao to enter into a contract for consultancy services in the Sangguniang Secretariat covering the period June to December 2003 only.

- There were no Progress Accomplishment Reports for the month, to determine the services rendered.

- No information as to what method had been made by BAC in the hiring of individual consultants whether through the selection from several registered professionals who offered consulting services or through direct hiring without the intervention of the BAC.14

On 22 June 2006, the SPM wrote a letter15 informing Ms. Padilla that the three consultants hired by petitioner rendered services covering the period January to December 2005. In its view, the hiring of these consultants and the services they rendered were in good faith.

Aggrieved by the disallowance, petitioner appealed it to the Adjudication and Settlement Board (ASB) of the COA. On 12 June 2007, the ASB issued Decision No. 2007-030,16 the dispositive portion of which reads as follows:

Premises considered, the instant appeal of Hon. Arnold Vicencio is hereby denied. Accordingly, Notice of Disallowance No. 06-009-101 (05) dated 12 May 2006 involving the amount of P384,980.00 representing fees to consultants Mr. Marvin T. Amiana, Atty. Rodolfo Delos Santos and Ms. Jennifer Catindig, is hereby affirmed. However, the instant appeal of Mr. Estaquio Angeles is hereby granted. Mr. Angeles is therefore excluded from the persons liable listed under Notice of Disallowance No. 06-009-101 (05).17

Thereafter, herein petitioner filed a letter dated 7 July 2007,18 addressed to Hon. Guillermo N. Carague, COA Chairperson. The letter prayed for the reversal and setting aside of the earlier Decision of the ASB. On 15 February 2008, public respondent issued the assailed Order. It appears that the letter of petitioner was treated as an appeal to the Commission Proper of the COA and was subsequently denied. The dispositive portion states:

WHEREFORE, premises considered, the instant motion for reconsideration, which was treated as an appeal, is denied.19

On 28 March 2008, the instant Petition was filed, raising the following issue:

WHETHER OR NOT PUBLIC RESPONDENT COMMISSION ON AUDIT COMMITTED SERIOUS ERRORS AND GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OFJURISDICTION WHEN IT AFFIRMED ASB DECISION NO. 2007-030, RELATIVE TO THE DISALLOWANCE OF DISBURSEMENTS CONCERNING THE SERVICES RENDERED BY HIRED CONSULTANTS FOR THE SANGGUNIANG PANLUNGSOD NG MALABON.

On 8 April 2008, this Court directed respondents to comment on the Petition. On 28 July 2008, they filed their Comment, in which they averred that Ordinance No. 15-2003 specifically authorized the expenditure of funds for the compensation of consultants only from June to December 2003. Thus, the contracts for consultancy entered into in 2005 were contrary to the ordinance cited and were therefore void for being unauthorized and bereft of any legal basis. There is also no room for interpretation of the ordinance, as the same is clear, and, additionally, actually contains no preamble. Further, respondents argue that to allow the disbursement of public funds to pay for the services of the consultants, despite the absence of authority for the same, would allow a circumvention of the applicable COA rules and circulars.

Petitioner thereafter filed his Reply to the Comment, in compliance with this Court’s 12 August 2008 Resolution. In his Reply, he contended that he had the authority to enter into the consultancy contracts pursuant to Ordinance No. 15-2003. As the ordinance was ambiguous, there was a need to interpret its provisions by looking into the intent of the law. He also manifested that the Ombusdman had dismissed the administrative and criminal Complaints for violation of Republic Act No. (R.A.) 6713 and for Usurpation of Authority, previously filed against him over the same transactions. The Ombudsman held that, while Ordinance No. 15-2003 specifically mentions then Vice-Mayor Yambao, the intent in passing the law may not be ignored. It was the intention of the city council to authorize the

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Office of the Vice-Mayor to enter into consultancy contracts, and not Vice-Mayor Yambao only. Petitioner also argued that the ends of substantial justice and equity would be better served by allowing the disbursement for consultancy services that have already been rendered.

We deny the Petition.

At the outset, we note that the Petition has a procedural flaw that should merit its outright dismissal. Through the Verification and Certification attached to the instant Petition, petitioner states that the contents of the Petition "are true and correct of [his] own personal knowledge and belief and based on authentic records and/or documents."20

Section 4, Rule 7 of the Rules of Court provides that a pleading required to be verified which contains a verification based on "information and belief" or "knowledge, information and belief," shall be treated as an unsigned pleading. A pleading, therefore, in which the verification is based merely on the party’s knowledge and belief – as in the instant Petition – produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied.21

In any case, we find no grave abuse of discretion on the part of the COA in issuing the assailed Decision.

Petitioner contends that the ordinance authorizes the Office of the Vice-Mayor, and not Vice-Mayor Yambao in particular, to enter into consultancy contracts. Notably, it was even Hon. Vice-Mayor Benjamin C. Galauran, who was acting Vice-Mayor at the time, who entered into the 2003 Consultancy Contracts. Petitioner also argues that there is no indication from the preamble of the ordinance, which can be read from the minutes of the SPM meeting, that the ordinance was specifically designed to empower only Vice-Mayor Yambao, or to limit such power to hire for the period June to December 2003 only.

We disagree.

Under Section 456 of R.A. 7160, or the Local Government Code, the following are the powers and duties of a city vice-mayor:

ARTICLE II The City Vice-Mayor

SECTION 456. Powers, Duties and Compensation. – (a) The city vice-mayor shall:

(1) Be the presiding officer of the sangguniang panlungsod and sign all warrants drawn on the city treasury for all expenditures appropriated for the operation of the sangguniang panlungsod;

(2) Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlungsod, except those whose manner of appointment is specifically provided in this Code;

(3) Assume the office of the city mayor for the unexpired term of the latter in the event of permanent vacancy as provided for in Section 44, Book I of this Code;

(4) Exercise the powers and perform the duties and functions of the city mayor in cases of temporary vacancy as provided for in Section 46, Book I of this Code; and

(5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.

(b) The city vice-mayor shall receive a monthly compensation corresponding to Salary Grade twenty-eight (28) for a highly urbanized city and Salary Grade twenty-six (26) for a component city, as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto.

Under this provision, therefore, there is no inherent authority on the part of the city vice-mayor to enter into contracts on behalf of the local government unit, unlike that provided for the city mayor.22 Thus, the authority of the vice-mayor

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to enter into contracts on behalf of the city was strictly circumscribed by the ordinance granting it. Ordinance No. 15-2003 specifically authorized Vice-Mayor Yambao to enter into contracts for consultancy services. As this is not a power or duty given under the law to the Office of the Vice-Mayor, Ordinance No. 15-2003 cannot be construed as a "continuing authority" for any person who enters the Office of the Vice-Mayor to enter into subsequent, albeit similar, contracts.

Ordinance No. 15-2003 provides in full:

City Ordinance No. 15-2003

An Ordinance Granting Authority to the City Vice Mayor, Hon. Jay Jay G. Yambao, to Negotiate, and Enter into a Contract for Consultancy Services in the Sanggunian Secretariat Tasked to Function in their Respective Areas of Concern, as Aforementioned, To Wit:

(1) A Legal Consultant

(2) A Consultant on Education Affairs and

(3) A Management Consultant

That said consultants shall be paid/compensated at the rate of Twenty Two Thousand Pesos (P22,000.00) each, per month, effective upon approval of this ordinance subject to the usual accounting and auditing procedures, rules and/or regulations;

That the source of funds for appropriations thereof shall be made available for expenditures to be earmarked for payment/compensation for said consultants, covering the period from June to December of 2003, thereby authorizing further the City Vice Mayor to effect the necessary funding thereof, pursuant to the pertinent provision, aforecited, in Chapter 4, Section 336 of R.A. 7160;

That copies of this ordinance be furnished all concerned for their information and guidance.

Adopted: October 30, 2003.23

Ordinance No. 15-2003 is clear and precise and leaves no room for interpretation.1âw phi 1 It only authorized the then City Vice-Mayor to enter into consultancy contracts in the specific areas of concern. Further, the appropriations for this particular item were limited to the savings for the period June to December 2003. This was an additional limitation to the power granted to Vice-Mayor Yambao to contract on behalf of the city. The fact that any later consultancy contract would necessarily require further appropriations from the city council strengthens the contention that the power granted under Ordinance No. 15-2003 was limited in scope. Hence, petitioner was without authority to enter into the 2005 Consultancy Contracts.

Where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.24 Thus, the ordinance should be applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice.25 In the instant case, there is no reason to depat1 from this rule, since the subject ordinance is not at all impossible, absurd, or unjust.

Section 103 of P.O. 1445 declares that expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. The public official's personal liability arises only if the expenditure of government funds was made in violation of law. In this case, petitioner's act of entering into a contract on behalf of the local government unit without the requisite authority therefor was in violation of the Local Government Code. While petitioner may have relied on the opinion of the City Legal Officer, such reliance only serves to buttress his good faith. It does not, however, exculpate him from his personal liability under P.D. 1445.

In sum, the COA's assailed Decision was made in faithful compliance with its mandate and in judicious exercise of its general audit power as conferred on it by the Constitution26

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The COA was merely fulfilling its mandate in observing the policy that government funds and property should be fully protected and conserved; and that irregular, unnecessary, excessive or extravagant expenditures or uses of such funds and property should be prevented.27 Thus, no grave abuse of discretion may be imputed to the COA.

WHEREFORE, the Commission on Audit Decision dated 4 January 2008 is hereby AFFIRMED.

SO ORDERED.

MARIA LOURDES P. SERENO Associate Justice

WE CONCUR:

ANTONIO T. CARPIO Senior Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

(On leave) LUCAS P. BERSAMIN*

Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

(On leave) ROBERTO A. ABAD*

Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

C E R T I F I C A T I O N

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes

* On leave

1 Rollo, pp. 21-25. Issued by acting COA Chairperson Reynaldo A. Villar and Commissioner Juanito G. Espino, Jr.

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2 Id. at 33-34.

3 Id. at 39-41.

4 Id. at 42-44.

5 Id. at 45-47.

6 Id. at 48.

7 Id. at 49.

8 Id. at 50-52.

9 Id. at 53-56.

10 Id. at 57-59.

11 Id. at101-102.

12 Id. at 102.

13 Id. at 103-104.

14 Id.

15 Id. at105-106.

16 Id. at 120-124.

17 Id. at 124.

18 Id. at125-126.

19 Id. at 11.

20 Id. at 18.

21 Negros Oriental Planters Association, Inc. (NOPA) v. Presiding Judge of RTC-Negros Occidental, Br. 52, Bacolod City, G.R. No. 179878, 24 December 2008, 575 SCRA 575.

22 R.A. 7160, Sec. 456 (b)(1)(vi) provides:

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the city and its inhabitants pursuant to Section 16 of this Code, the city mayor shall:

(vi) Represent the city in all its business transactions and sign in its behalf all bonds, contracts, and obligations, and such other documents upon authority of the sangguniang panlungsod or pursuant to law or ordinance; x x x.

23 Rollo, pp. 33-34.

24 National Federation of Labor v. National Labor Relations Commission, 383 Phil. 910 (2000).

25 Municipality ofParanaque v. V.M. Really Corporation, 354 Phil. 684 (1998).

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26 Veloso v. Commission on Audit, G.R. No. 193677, 6 September 2011, 656 SCRA 767.

TERM LIMITS AND RECALL

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 182867 November 25, 2008

ROBERTO LACEDA, SR., petitioner, vs. RANDY L. LIMENA and COMMISSION ON ELECTIONS, respondents.

R E S O L U T I O N

QUISUMBING, J.:

From this Court's June 10, 2008 Resolution1 dismissing his petition for certiorari, petitioner

Roberto Laceda, Sr. filed the instant motion for reconsideration,2 insisting that the

Commission on Elections (COMELEC) committed grave abuse of discretion in issuing the Resolutions dated January 15, 2008

3and May 7, 2008

4 in SPA No. 07-028 (BRGY).

The facts are as follows:

Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were candidates for Punong Barangay of Barangay Panlayaan, West District, Sorsogon City, during the October 29, 2007 Barangay and Sangguniang Kabataan Elections. On October 23, 2007, Limena filed a petition for disqualification and/or declaration as an ineligible candidate

5 against Laceda before the COMELEC, contending that Laceda had already

served as Punong Barangay for Brgy. Panlayaan for three consecutive terms since 1994, and was thus prohibited from running for the fourth time under Section 2 of Republic Act No. 9164

6which provides:

SEC. 2. Term of Office.-The term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, That the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.

Limena likewise attached the following certification from the Department of the Interior and Local Government:

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THIS IS TO CERTIFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent Punong Barangay of Panlayaan, West District, Sorsogon City. …was elected as Punong Barangay during the May 9, 1994, May 12, 1997 and July 15, 2002 Barangay Elections. He resigned from office on March 20, 1995 to run as Municipal Councilor. Hence, he is covered by the three-term rule of paragraph 2, Section 2 of RA 9164 which provides that: "No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, that the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office [for] any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected."

7

x x x x

In his Answer,8 Laceda admitted having served as Punong Barangay of Panlayaan for

three consecutive terms. However, he asserted that when he was elected for his first two terms, Sorsogon was still a municipality, and that when he served his third term, the Municipality of Sorsogon had already been merged with the Municipality of Bacon to form a new political unit, the City of Sorsogon, pursuant to Republic Act No. 8806.

9 Thus, he

argued that his third term was actually just his first in the new political unit and that he was accordingly entitled to run for two more terms.

Laceda likewise argued that assuming he had already served three consecutive terms, Rep. Act No. 9164 which imposes the three-term limit, cannot be made to apply to him as it would violate his vested right to office. He alleged that when he was elected in 1994 the prohibition did not exist. Had he known that there will be a law preventing him to run for the fourth time, he would not have run for office in 1994 as he was looking forward to the election in 2007.

10

On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate of candidacy:

WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon City and consequently denies due course and cancels his Certificate of Candidacy.

SO ORDERED.11

Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution dated May 7, 2008. Aggrieved, Laceda filed a petition for certiorari before this Court.

On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave abuse of discretion was committed by the COMELEC in rendering the assailed Resolutions of January 15, 2008 and May 7, 2008. Hence, this motion for reconsideration.

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Laceda insists that the COMELEC committed grave abuse of discretion in basing its decision on the requisites enunciated in Lonzanida v. Commission on Elections

12 for the

application of the three-term prohibition in Section 4313

of the Local Government Code.

14 Laceda argues that said case is inapplicable since it involved the position of

municipal mayor while the instant case concerned the position of Punong Barangay. He likewise insists that he served his third term in a new political unit and therefore he should not be deemed already to have served a third term as Punong Barangay for purposes of applying the three-term limit.

15

For reasons hereafter discussed, the motion for reconsideration cannot prosper.

Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it was taken, is primarily intended to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. This Court has held that for the prohibition to apply, two requisites must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he or she has fully served three consecutive terms.

16

In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were merged and converted into a city thereby abolishing the former and creating Sorsogon City as a new political unit, it cannot be said that for the purpose of applying the prohibition in Section 2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a different local government post as that of the office of Punong Barangay of Barangay Panlayaan, Sorsogon City. The territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the conversion. Consequently, the inhabitants of the barangay are the same. They are the same group of voters who elected Laceda to be their Punong Barangay for three consecutive terms and over whom Laceda held power and authority as their Punong Barangay. Moreover, Rep. Act No. 8806 did not interrupt Laceda's term.

In Latasa v. Commission on Elections,17

which involved a similar question, this Court held that where a person has been elected for three consecutive terms as a municipal mayor and prior to the end or termination of such three-year term the municipality has been converted by law into a city, without the city charter interrupting his term until the end of the three-year term, the prohibition applies to prevent him from running for the fourth time as city mayor thereof, there being no break in the continuity of the terms.

Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Court's ruling in Latasa v. Commission on Elections, we hold that the prohibition in Section 2 of said statute applies to Laceda. The COMELEC did not err nor commit any abuse of discretion when it declared him disqualified and cancelled his certificate of candidacy.

WHEREFORE, petitioner Roberto Laceda, Sr.'s Motion for Reconsideration18

dated July 25, 2008 assailing this Court's Resolution dated June 10, 2008 is DENIED with FINALITY.

SO ORDERED.

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LEONARDO A. QUISUMBING Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

*CONSUELO YNARES-SANTIAGO

Associate Justice ANTONIO T. CARPIO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

Footnotes

* On leave.

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1 Rollo, p. 63.

2 Id. at 70-73. Dated July 25, 2008.

3 Id. at 25-30.

4 Id. at 56-62.

5 Id. at 14-17.

6 An Act Providing for Synchronized Barangay and Sangguniang Kabataan

Elections, Amending Republic Act No. 7160, as Amended, Otherwise Known as the "Local Government Code of 1991," and for Other Purposes, approved on March 19, 2002.

7 Rollo, p. 18.

8 Id. at 20-23.

9 An Act Creating the City of Sorsogon by Merging the Municipalities of Bacon and

Sorsogon in the Province of Sorsogon and Appropriating Funds Therefor, approved on August 16, 2000.

10 Rollo, p. 21.

11 Id. at 29.

12 G.R. No. 135150, July 28, 1999, 311 SCRA 602.

13 SECTION. 43. Term of Office. - …

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

x x x x

14 Republic Act No. 7160, also known as Local Government Code of 1991, approved

on October 10, 1991.

15 Rollo, pp. 71-72.

16 Lonzanida v. Commission on Elections, supra at 611.

17 G.R. No. 154829, December 10, 2003, 417 SCRA 601.

18 Rollo, pp. 64-68.

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Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 167591 May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners, vs. COMELEC and MARINO "BOKING" MORALES, Respondents.

x---------------------------------------------x

G.R. No. 170577 May 9, 2007

ANTHONY D. DEE, Petitioner, vs. COMELEC and MARINO "BOKING" MORALES, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc.

G.R. No. 167591

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO "BOKING" MORALES

In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy.

On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales’ Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government Code.

In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following reasons:

a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and executory on August 6, 2001; and

b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999.

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On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration.

On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales’ motion for reconsideration and setting aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales’ proclamation void, his discharge of the duties in the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has been severed.

Hence, this petition for certiorari.

G.R. No. 170577

ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES

On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition for quo warranto against the said respondent. Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as Civil Case No. 11503.

In his answer, respondent Morales raised the following defenses:

a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and

b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat.1

In its Decision dated November 22, 2004, the RTC dismissed petitioner Dee’s petition for quo warranto on the ground that respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus:

Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City. x x x.

Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as such should be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal. It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He only served as a caretaker, thus, his service during that term should not be counted.

On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division.

Hence, petitioner Dee’s instant petition for certiorari.

Both cases may be decided based on the same facts and issues.

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It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms:

a) July 1, 1995 to June 30, 1998

b) July 1, 1998 to June 30, 2001

c) July 1, 2001 to June 30, 2004

d) July 1, 2004 to June 30, 2007

THE PRINCIPAL ISSUE. –

Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles City.

Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre2 with identical facts, thus:

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente.

x x x

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis’ assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest.

x x x

For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms.

With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis’ assumption of office as Mayor of San

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Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive terms for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis’ opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in Lonzanida v. Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was afailure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term."

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of "failure of election," and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated.

Here, respondent Morales invoked not only Lonzanida v. COMELEC,3 but also Borja, Jr. v. Commission on Elections4 which is likewise inapplicable. The facts in Borja are:

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Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998.

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capco’s disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x x x

This Court held that Capco’s assumption of the office of mayor upon the death of the incumbent may not be regarded as a "term" under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position.

Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the "term" contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed, there was a "break" in the service of private respondent Ramon T. Talanga as mayor. He was a "private citizen" for a time before running for mayor in the recall elections.

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,6 such circumstance does not constitute an interruption in serving the full term.

Section 8, Article X of the Constitution can not be more clear and explicit –

The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x

Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:

No local official shall serve for more than three consecutive terms in the same position. x x x

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years.

In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus:

The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x

x x x

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It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.

This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely".

Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.

G.R. No. 167591 –

Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. The effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus:

SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. – The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

in relation to Section 211 of the Omnibus Election Code, which provides:

SEC. 211. Rules for the appreciation of ballots. – In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voter’s will:

x x x

19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

x x x

In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes.

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G.R. No. 170577 –

Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot.

Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term.

In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner, thus:

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.

x x x

It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).

x x x

As a consequence of petitioner’s ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit:

Sec. 44. Permanent vacancies in the Offices 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 the vice-mayor concerned shall become the governor or mayor. x x x

WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales’ Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.

This Decision is immediately executory.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

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LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Asscociate Justice

ANTONIO T. CARPIO

Associate Justice

(On leave) MA. ALICIA AUSTRIA-MARTINEZ

Asscociate Justice

(On leave) RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Asscociate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Asscociate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

(No part) CANCIO C. GARCIA

Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

(No part) ANTONIO EDUARDO B. NACHURA

Asscociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

Footnotes

1 The COMELEC Second Division, in its Resolution dated May 6, 2004 (Annex "A," Petition in G.R. No. 167591) ruled that respondent Morales’ term of office was not interrupted by the preventive suspension imposed upon him by the Ombudsman. This ruling was sustained by the COMELEC En Banc in its Resolution of May 14, 2005 (Annex "B," Petition in G.R. No. 167591).

2 G.R. Nos. 163295 & 163354, January 23, 2006, 479 SCRA 473.

3 G.R. No. 135150, July 28, 1999, 311 SCRA 602.

4 G.R. No. 133495, September 3, 1998, 295 SCRA 157.

5 G.R. No. 147927, February 4, 2002, 376 SCRA 90.

6 Supra.

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7 G.R. No. 154829, December 10, 2003, 417 SCRA 601.

8 G.R. Nos. 105111 & 105384, July 3, 1992, 211 SCRA 297; Abella v. COMELEC, G.R. Nos. 100710 & 100739, September 3, 1991, 201 SCRA 253; and Benito v. COMELEC, G.R. No. 106053, August 17, 1994, 235 SCRA 436.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

TINGA, J.:

Respondent Marino Morales had already fully served three consecutive terms as mayor of Mabalacat, Pampanga as of 2004. He pleads that this Court not only uphold his election to a fourth consecutive term, but even affirm his right to be elected to a fifth. The Court has rightfully rejected this outlandish claim, violative as it is of the three –term limit rule provided in Section 8, Article X of the Constitution.1 While I concur with the judgment of the Court, I write separately to emphasize a few points I feel important.

Our jurisprudence on the constitutional term limits on local elective officials is recent in origin. In 1998, Borja v. COMELEC2 pronounced that "it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply."3 The rule was reiterated in Lonzanida v. COMELEC,4 where it was held that the two conditions for the application of the disqualification must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms. Both these cases featured two officials who were not able to fully serve three consecutive terms. In the first, the official concerned succeeded into office midway in his predecessor’s term by operation of law, while in the second the official involuntarily relinquished office prior to the completion of one of the consecutive terms.

It is Ong v. Alegre,5 decided last year, which governs in cases where the official concerned had actually fully served three consecutive terms. In truth, the decision today is but a reiteration of the doctrine we have already laid down in Ong, a case with facts similar to those at bar. The case expressly rebuts respondent’s claim that the subsequent nullification of his proclamation in 1998 could not have resulted in a "valid election". In both Ong and the case at bar, such nullification became final only after the expiration of the contested term.6 The Court in Ong stressed that the nullification "was without practical and legal use and value, having been promulgated after the term of the contested office has expired."7

Ong does not explicitly address the legal fiction adverted to in Lonzanida that the nullification of the proclamation results in "no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest."8 I submit though that a different rule should obtain if the official concerned had already fully served the contested term before the nullification could become final and the ensuing ouster from office, executory. That the official has fully served his term despite the challenge to his assumption of office, as is respondent’s situation, renders inconsequential and unnecessary any inquiry as to whether he was validly elected. Within that context, any subsequent finding that the official had in fact, finished the term and performed the functions of office only in the capacity as the "presumptive winner" holds no utile purpose.

It might be argued that a nullified proclamation evinces the absence of a valid election, which Borja and Lonzanida hold as a requirement for the constitutional term limit to apply. In that case, the lack of a valid election would still fail to negate any full service of term actually rendered by the official concerned, as may occur if the nullification becomes enforceable only after the expiration of the term. Normally, actual full service of the term gives rise to the presumption that there was a valid election, and as a corollary, an invalid election should cause the official to relinquish office before full service of the term can be completed. It should indeed be recognized as an aberration if a court or the COMELEC would have the gall to promulgate a final and executory issuance nullifying an election

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only after the term of office for that election had already expired. Such recourse is not only an exercise in futility, but a demonstration of inutility.

The seeming confusion arises from a failure to recognize that the election for three terms for the same post as first requirement of the three-term limit rule, apart from serving as the basis for excluding succession by operation of law from the ambit of the rule as exemplified by Borja, is itself the initial expression of the second requirement which is the full service of three consecutive terms. The election dimension is only the initial element that gives rise to the operation of the three-term limit rule but once the election is voided the inevitable effect is that the term would not be fully served. It is this break of service that eventually takes the situation out of the three-term limit rule.

But if the anomaly is present, as it is in this case, should the aberrant nullification be allowed legal fruition as applied to constitutional term limits? Borja may have fostered due solicitude to the principle that the voters should have consciously elected the official to serve for three consecutive terms for the limits to take hold, yet the text of the Constitution itself demonstrates that the service of three consecutive terms already suffices. As earlier noted, full service of three terms normally equates to three consecutive valid elections, so the conflict should be rare. But if the conflict does arise, where the full service of three terms did not arise as a consequence of three consecutive valid elections, As earlier intimated, the full service dimension should bear greater impact than the valid election dimension. Full service of three terms is sufficient to put into effect the constitutional term limits for local elective officials. After all, the text of Section 8, Article X of the Constitution itself lays greater emphasis on the fact of service than on the fact of election.

It may be added that whatever private doubts of the framers may have had as to the wisdom of term limits, the Constitution itself imposes such term limits on every elective national and local office. The Constitution itself regulates through these limits the ability of voters to choose their representative officials. The system of term limits as a tool to democratize opportunity for public office as well as the field of voters’ choice is a policy move embedded by the people in the fundamental law of the land. As such, the scope and definition of term limits must be framed from the context of the Constitution itself.

In his ponencia in Latasa v. COMELEC,9 Justice Azcuna, himself a member of the 1986 Constitutional Commission, eloquently explained the constitutional purpose of term limits:

This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.10

The same considerations should militate against the present cause of respondent. It cannot be denied that he has fully served without interruption as mayor for the last 12 years and, had his arguments been upheld, could do so for another three (3) years. His continued stay in office is abhorrent to the Constitution. Now even if the stale claim of the respondent that he was not validly elected to a second term is accepted for the nonce, it would not undo the fact that respondent did perform the functions of the public office during the entirety of his 1998-2001 term, and was at no point during that term, under legal compulsion to relinquish the same. The nullification of respondent’s 1998 proclamation was never enforced.

Thus, the original petition for disqualification in G.R. No. 167591 should be granted and respondent removed from office on what is now his fourth consecutive term. Pursuant to Section 44 of the Local Government Code, it should be the Vice-Mayor of Mabalacat who shall succeed into office since the disqualification of respondent has caused a permanent vacancy in the office of Mayor.

There is no basis to accept the claim of petitioner in G.R. No. 170577 that he, the "runner-up" in the 2004 mayoralty race, should be installed in lieu of respondent. The hornbook rule is that a second place candidate cannot be proclaimed as a substitute winner.1^vvphi1.net Said general rule remains unaffected even with the Court’s recent ruling in Cayat v. COMELEC.11 Cayat was predicated on a particular finding that that the order of the COMELEC disqualifying the candidate therein had become final even before election day, thus rendering the votes nonetheless

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cast in favor of that candidate as stray. No such finding exists in this case. While the COMELEC Second Division did disqualify Morales a few days before Election Day, 2004, the said decision was seasonably elevated to the COMELEC en banc, which in fact reversed the Second Division some months after the election and proclamation of Morales.

It is suggested by petitioner in G.R. No. 170577 that the general rule should nonetheless not apply to this case, owing to the obiter dicta in Labo v. COMELEC12 that perhaps the second placer could possibly be declared the winner "if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected."13

It should weigh that the Court has never to date applied the Labo obiter in order to elevate the second placer into office. This is because the bar set therein is actually quite high. It entails a conclusion that the voters intentionally wasted their ballots knowing that, in spite of their vote for him or her, the candidate was ineligible.14 As phrased, the Labo obiter requires a finding of spectacular flagrancy on the part of the voting public. In order to actualize the Labo obiter to seat a second placer, the Court has to be prepared to impugn the character and mental acuity of the voters in the particular territory.

The standard in the Labo obiter is not that the voters were deceived into believing that the candidate was eligible, it is that the voters were well aware that the candidate was disqualified yet still chose to cast a vote they knew would be counted as stray in favor of the candidate. Such votes, under the Labo obiter, could not have been cast with the intention to install the candidate into office, but instead were elected to stroke the ego of the candidate.

Ironically, a losing candidate who proposes the application of the Labo obiter to his or her benefit will have to, in the process, denigrate the good faith and intelligence of the voting public. If that strikes as incongruous, it may be because that the general rule in Labo that the second placer can never assume the office is so intrinsically sound, it should take a convergence of highly unusual, absurd or malevolent circumstances in order that the exception may be properly had. No harm to the legal order would have ensued if the Labo obiter did not exist in our jurisprudence.

It cannot be assumed that the people of Mabalacat knew that respondent was running for a fourth consecutive legal term and even if the assumption is accepted, it cannot immediately translate into a "notorious" awareness that he was disqualified from running for the office, especially since there was a ruling, albeit it did not obtain finality before the expiration of his second term, that decreed that he had actually lost the 1998 elections. Besides, in Labo itself, the people of Baguio, by the same measure, knew that Labo had been previously disqualified from running as Mayor in 1988 due to his citizenship predicament, yet still voted him into office anyway when he ran again in 1992. Still, the Court declined to install the second placer in lieu of Labo. I see no need for a different result to obtain in this case.

WHEREFORE, I VOTE to grant the petition in G.R. No. 167591 and to DISMISS the petition in G.R. No. 170577.

DANTE O. TINGA Associate Justice

Footnotes

1 SECTION 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

2 356 Phil. 467 (1998).

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3 Id. at 478.

4 370 Phil. 625 (1999).

5 G.R. Nos. 163295 & 163354, 23 January 2006, 479 SCRA 473.

6 The decision of the Angeles City RTC declaring that respondent had actually lost the 1998 elections was promulgated only on 2 April 2001, and more pertinently, became final and executory only on 6 August 2001, or after the expiration of the 1998-2001 term of office.

7 Ong v. Alegre, supra note 5, at 482.

8 Lonzanida v. COMELEC, supra note 4, at 637.

9 G.R. No. 154829, 10 December 2003, 417 SCRA 601.

10 Id. at 614-615.

11 G.R. No. 163776, 24 April 2007.

12 G.R. No. 105111 & 105384, 3 July 1992, 211 SCRA 297. See also Latasa v. COMELEC, supra note 9, at 615.

13 Id. at 312.

14 See Frivaldo v. COMELEC, G.R. Nos. 120295 & 123755, 26 June 1996, 257 SCRA 727, 764.

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

VELASCO, JR., J.:

In Borja Jr. v. Commission on Elections, we held the requisites for the three (3)-term limit to apply, thus: "[I]t is not enough that an individual has served three consecutive terms in an elective local office, he must also have beenelected to the same position for the same number of times before the disqualification can apply."1 And inLonzanida v. Commission on Elections, we reiterated these two (2) conditions which must concur for the three (3)-term limit to apply: "1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms."2

In my view, these requisites prescribed in Borja, Jr. and reiterated in Lonzanida, more particularly the first condition, have been modified in the later case of Ong v. Alegre3 where we held in gist that where a proclaimed candidate had served the full term of office but was either disqualified or his/her proclamation voided only after the term of the contested office had expired, such service is counted and is legally taken as service for a full term in contemplation of the three (3)-term rule. Lonzanida applied the two requisites prescribed in Borja, Jr. by explicating that the requisite valid election is not met if the proclamation is subsequently voided in an election protest. Then came Ong which is factually akin to Lonzanida except for the fact that Ong was able to serve the full term while Lonzanida did not. A second look over the Lonzanida facts unmistakably reveals that although the Zambales RTC initially declared the San Antonio, Zambales mayoral election as null and void due to "failure of election," the Commission on Elections (COMELEC), on appeal, decided the protest on the merits, voided the 1995 proclamation of Lonzanida, and declared his opponent Alvez the duly elected mayor of San Antonio, Zambales.4 This nullification is therefore similar to the invalidation of the Ong proclamation. If Lonzanida were strictly applied to Ong, then the first condition of a valid election would not be satisfied as both proclamations in Lonzanida

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and Ong were voided. It is for this reason that I take the view that the Lonzanida ruling, finding no valid election due to the void proclamation, has been superseded or supplanted by the Ong ruling.

Therefore, the present rule is as long as there is a proclamation made by the canvassing board or the COMELEC, such declaration of the winner results in a valid election that applies and corresponds to the service actually rendered by the proclaimed official. This substantially complies with the prescribed valid election regardless of whether the nullification came prior to or after the term’s expiration. The reason is the election of the proclaimed winner to the local government position is legal and valid until annulled in the protest or quo warranto proceedings. Consequently, the service of the official prior to nullification by virtue of such proclamation is for all intents and purposes based on a valid election. The proclaimed winner, who takes his oath, assumes the position, and serves in said capacity by virtue of the proclamation, is a de jure official by virtue of a presumptively legal proclamation until voided. He is not merely a de facto official who is a person who has been declared winner by the court or by the COMELEC in an election protest and assumed office based on said protest and who has thereafter been adjudged not entitled to the office.5 Even if an election protest is filed, the proclaimed winner is accepted as the duly elected official and the legal occupant of the office possessed with the authority to exercise its powers and prerogatives until ordered to abdicate. To prevent perpetuity in the position and to avoid circumvention of the three (3)-term limit rule, the first condition on valid election embraces the situation where a candidate has been proclaimed and served in the position even though the proclamation is subsequently voided before or after the lapse of the term.

Moreover, the second sentence of Section 8, Article X of the Constitution refers to "service for the full term for which he was elected." A proclaimed winner, though his/her victory is under protest, is actually serving the term of the office for which s/he was proclaimed as the elected candidate. This equitable construction must be applied to enlarge the letter of the provision to attain its intended objective or carry out its intent.

Likewise, nowhere in Sec. 43 of the Local Government Code is it stated that the service by a local elective official shall be by virtue of a valid election. It can broadly refer to a proclamation of the election of a candidate though later on protested. The liberal interpretation extended to this provision is necessary to include situations which are clearly within the spirit or reason of the provision itself. By such liberal application, the provision will receive a fair and reasonable interpretation so as to attain the intent, spirit, and purpose of the law.6

With respect to the situation where a protestant is declared the winner in an election protest and serves the unexpired portion of the term, such service, with certitude, is by virtue of a valid election. Hence, the first condition is met.

However, an instance where there is no valid election is when an elective official succeeds to a higher office due to death, disqualification, or incapacity of the incumbent as s/he serves by operation of law7 and not by election. Such is the case of Vice Mayor Capco who became mayor of Pateros due to the demise of then Mayor Cesar Borja in the Borja, Jr. case. Another situation not covered by the three (3)-term limit rule is when a candidate won in a recall election and served the unexpired portion of the term as in the case of Mayor Ramon Y. Talaga, Jr. of Lucena City. His victory in the recall election was not considered a term of office because the continuity of his mayoralty was disrupted by his defeat in the 1998 elections.8

Now, focusing on the second condition laid down in Borja, Jr. as applied in Lonzanida that the official must have served the full three (3)-year term for local elective officials, we find that this prescription was likewise followed in Ong.

It is my view which is shared by the Solicitor General in Lonzanida9 that the service of the official for the greater part of the term should be considered as "service of a term" under Sec. 8, Art. X of the Constitution and Sec. 43 (b), Chapter 1 of Republic Act No. (RA) 7160 otherwise known as the Local Government Code. Those who occupy an elective position to which they have been proclaimed and have served for more than two (2) years are deemed to have fully served the term in contemplation of the three (3)-term rule regardless of whether the proclamation is subsequently voided or s/he is subsequently disqualified.

Sec. 8, Art. X of the Constitution simply says "no such official shall serve for more than three consecutive terms." It does not say full service of the three terms. Likewise, Sec. 43 of RA 7160 provides that "no local elective official shall serve for more than three consecutive terms in the same position." Again, there is no mention of full service. The two provisions should be liberally construed to mean that service of the greater portion of the term is substantial

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compliance with the prescribed service under Sec. 8, Art. X of the Constitution and Section 43, Chapter 1 of RA 7160.

The substantial compliance rule is defined as "[c]ompliance with the essential requirements, whether of a contract or of a statute."10 In our jurisdiction, we have applied this rule or principle in numerous issues relative to the scope and application of constitutional and legal provisions. In particular, we applied the rule in criminal cases to comply with the constitutional requirement that the accused be informed of the charge against him/her as embodied in the Information filed with the court.11 In other cases, we applied the rule both primarily in compliance with the essential statutory requirements and in liberally construing and applying remedial laws for just and compelling reasons in order to promote the orderly administration of justice.12 We see no reason why the doctrine of substantial compliance should not be applied to the provisions in question. Indeed, the realization of the laudable goal behind the three (3)-term limit rule is imperative to foil any scheme to monopolize political power and circumvent the proscription against perpetual stay in elective positions. As tersely explained in Borja, Jr.:

I think we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is taken care of because we put a gap on the continuity or the unbroken service of all of these officials.13

In Ong and Lonzanida, as in this case, the ruling was that the second condition should be satisfied by the full service of the entire term. Such strict interpretation of the constitutional provision in Sec. 8, Art. X and the provision in Sec. 43 of RA 7160 however does not support and enhance the commendable objective behind the three (3)-term limit but even weakens it. To define service as full service of the entire three (3) years of the term would tolerate, entice, and, in effect, sanction circumvention of the three (3)-term ceiling as not all proclaimed winners are able to fully serve the term. Many proclaimed winners have been ordered to vacate their offices prior to the expiry date of the term and hence, are not effectively covered by Lonzanida and Ong. This situation would become even more prevalent when the newly crafted special rules for election contests take effect on May 15, 2007 in time for the 2007 elections as election contests are required to be decided by the trial courts in six (6) months.14 Take for example Lonzanida: while the protestant Avez won the case and assumed the elective office, it was only for a paltry couple of months as the position was vacated by Lonzanida only in April of the election year. Consequently, Lonzanida was not credited that term despite practically serving all of it. The fact that prior to his ouster he was elected and served two full terms means that Lonzanida was eligible to run for another three terms after his ouster or disqualification. If Lonzanida were successful for his bid for a three-year term, he would thereafter practically have been in position for 18 consecutive years except for an intervening period of over two months. Indeed, if he were credited the full term although he served only the greater portion of it, he would have been barred by the three (3)-term limit. This position would be more in keeping with the intent of the framers of the Constitution in setting the three (3)-term limit to curtail permanence in office and monopoly of power. Indeed, "[t]he fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it."15

With regard to the service of more than two (2) years in the local elective position as benchmark in the determination of the length of service under the three (3)-term limit rule, two (2) years out of the full three (3)-year term constitutes 66% of the term. This is reasonable and fair for it clearly comprises a greater part of the three (3)-year term. Even the members of the 1986 Constitutional Commission had accepted this yardstick when they approved the provision that "no person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time."16 Four (4) years out of the six (6)-year term for the president is also 66%. Thus, service for a period of more than two (2) years in the term is a fair standard in determining the application of the three (3)-term limit.

In sum and substance, I find that the first requirement of a valid election encompasses the proclamation of a local elective official as a valid election to the position the official was elected. On the second condition, I opine that service of more than two (2) years in the elective position constitutes substantial compliance of the service prescribed under Sec. 8, Art. X of the Constitution and Sec. 43, Chapter I of the Local Government Code.

While respondent Morales was ousted from office for having served more than three (3) consecutive terms (1995-1998, 1998-2001, and 2001-2004), the obvious outcome however from the interregnum of 2004-2007 is that he is qualified to run for a fresh three terms (2007-2010, 2010-2013, and 2013-2016). If we had applied the Lonzanida ruling, Morales would only be allowed to run for the last time for the term 2007-2010 under the three (3)-term quota

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since there would be a gap in his service during the 1998-2001 term due to a void proclamation. It is because of unique and diverse possibilities that can arise from the application of the three (3)-term limit––that a revisit and elucidation of the Borja, Jr. doctrine on the prescribed valid election and full service of term are in order.

With the foregoing premises, I concur in the result.

PRESBITERO J. VELASCO, JR.

Footnotes

1 G.R. No. 133495, September 3, 1998, 295 SCRA 157, 169.

2 G.R. No. 135150, July 28, 1999, 311 SCRA 602, 611; applied and reiterated in the later cases of Ong v. Alegre, G.R. Nos. 163295 & 163354, January 23, 2006, 479 SCRA 473; and Adormeo v. Comelec, G.R. No. 147927, February 4, 2002, 376 SCRA 90.

3 G.R. Nos. 163295 & 163354, January 23, 2006, 479 SCRA 473, 482-483.

4 Supra note 2, at 605. The pertinent portion reads:

In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled:

"PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election.

Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant."

Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term.

5 Malaluan v. Comelec, G.R. No. 120193, March 6, 1996, 254 SCRA 397, 407.

6 Agpalo, Statutory Construction 223; citation omitted.

7 R.A. No. 7160, "An Act Providing for a Local Government Code of 1991," Sec. 44.

8 See Adormeo v. Comelec, G.R. No. 147927, February 4, 2002, 376 SCRA 90.

9 Supra note 2, at 607.

10 H. Black, Black’s Law Dictionary 1428 (6th ed., 1990).

11 See Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465 SCRA 465.

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12 See Kasapian ng Malayang Manggagawa sa Coca-Cola (KASAMMA-CCO)-CFW Local 245 v. Court of Appeals, G.R. No. 159828, April 19, 2006, 487 SCRA 487; Testate Estate of the Late Alipio Abada v. Abaja, G.R. No. 147145, January 31, 2005, 450 SCRA 264; Gutierrez v. Secretary of the Department of Labor and Employment, G.R. No. 142248, December 16, 2004, 447 SCRA 107.

13 Supra note 1, at 164; quoted from then Commissioner Blas F. Ople.

14 A.M. No. 07-4-15-SC, Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials, April 24, 2007.

15 Sarmiento v. Mison, G.R. No. 79974, December 17, 1987, 156 SCRA 549, 552; citation omitted.

16 Constitution, Art. VII, Sec. 4.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 182088 January 30, 2009

ROBERTO L. DIZON, Petitioner, vs COMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary restraining order and writ of preliminary injunction under Rule 65 of the 1997 Rules of Civil Procedure. The present petition seeks the reversal of the Resolution dated 27 July 2007 of the Commission on Elections’ (COMELEC) Second Division which dismissed the petition to disqualify and/or to cancel Marino P. Morales’ (Morales) certificate of candidacy, as well as the Resolution dated 14 February 2008 of the COMELEC En Banc which denied Roberto L. Dizon’s (Dizon) motion for reconsideration.

The Facts

The COMELEC Second Division stated the facts as follows:

Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the Municipality of Mabalacat, Pampanga. Marino P. Morales, hereinafter referred to as respondent, is the incumbent Mayor of the Municipality of Mabalacat, Pampanga.

Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga during the 1995, 1998, 2001 and 2004 elections and has fully served the same. Respondent filed his Certificate of Candidacy on March 28, 2007 again for the same position and same municipality.

Petitioner argues that respondent is no longer eligible and qualified to run for the same position for the May 14, 2007 elections under Section 43 of the Local Government Code of 1991. Under the said provision, no local elective official is allowed to serve for more than three (3) consecutive terms for the same position.

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Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of the Municipality of Mabalacat, Pampanga because he was not elected for the said position in the 1998 elections. He avers that the Commission en banc in SPA Case No. A-04-058, entitled Atty. Venancio Q. Rivera III and Normandick P. De Guzman vs. Mayor Marino P. Morales, affirmed the decision of the Regional Trial Court of Angeles City declaring Anthony D. Dee as the duly elected Mayor of Mabalacat, Pampanga in the 1998 elections.

Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as Mayor of Mabalacat, Pampanga. Respondent further asserts that his election in 2004 is only for his second term. Hence, the three term rule provided under the Local Government Code is not applicable to him.

Respondent further argues that the grounds stated in the instant petition are not covered under Section 78 of the Omnibus Election Code. Respondent further contend [sic] that even if it is covered under the aforementioned provision, the instant petition failed to allege any material misrepresentation in the respondent’s Certificate of Candidacy.1

The Ruling of the COMELEC Second Division

In its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of this Court’s ruling in the consolidated cases of Atty. Venancio Q. Rivera III v. COMELEC and Marino "Boking" Morales in G.R. No. 167591 and Anthony Dee v. COMELEC and Marino "Boking" Morales in G.R. No. 170577 (Rivera case) promulgated on 9

May 2007. The pertinent portions of the COMELEC Second Division’s ruling read as follows:

Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There was no interruption of his second term from 1998 to 2001. He was able to exercise the powers and enjoy the position of a mayor as "caretaker of the office" or a "de facto officer" until June 30, 2001 notwithstanding the Decision of the RTC in an electoral protest case. He was again elected as mayor from July 1, 2001 to June 30, 2003 [sic].

It is worthy to emphasize that the Supreme Court ruled that respondent has violated the three-term limit under Section 43 of the Local Government Code. Respondent was considered not a candidate in the 2004 Synchronized National and Local Elections. Hence, his failure to qualify for the 2004 elections is a gap and allows him to run again for the same position in the May 14, 2007 National and Local Elections.

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to DENY the instant Petition to Cancel the Certificate of Candidacy and/or Petition for the Disqualification of Marino P. Morales for lack of merit.2

Dizon filed a motion for reconsideration before the COMELEC En Banc.

The Ruling of the COMELEC En Banc

The COMELEC En Banc affirmed the resolution of the COMELEC Second Division.

The pertinent portions of the COMELEC En Banc’s Resolution read as follows:

Respondent’s certificate of candidacy for the May 2004 Synchronized National and Local Elections was cancelled pursuant to the above-mentioned Supreme Court decision which was promulgated on May 9, 2007. As a result, respondent was not only disqualified but was also not considered a candidate in the May 2004 elections.

Another factor which is worth mentioning is the fact that respondent has relinquished the disputed position on May 16, 2007. The vice-mayor elect then took his oath and has assumed office as mayor of Mabalacat on May 17, 2007 until the term ended on June 30, 2007. For failure to serve for the full term, such involuntary interruption in his term of office should be considered a gap which renders the three-term limit inapplicable.

The three-term limit does not apply whenever there is an involuntary break. The Constitution does not require that the interruption or hiatus to be a full term of three years. What the law requires is for an interruption, break or a rest period from a candidate’s term of office "for any length of time." The Supreme Court in the case of Latasa v. Comelec ruled:

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Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

In sum, the three-term limit is not applicable in the instant case for lack of the two conditions: 1) respondent was not the duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term primordially because he was not even considered a candidate thereat; and 2) respondent has failed to serve the entire duration of the term of office because he has already relinquished the disputed office on May 16, 2007 which is more than a month prior to the end of his supposed term.

x x x

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the instant Motion for Reconsideration for LACK OF MERIT. The Resolution of the Commission Second Division is hereby AFFIRMED.

SO ORDERED.3

The Issues

Dizon submits that the factual findings made in the Rivera case should still be applied in the present case because Morales had, except for one month and 14 days, served the full term of 2004-2007. Morales’ assumption of the mayoralty position on 1 July 2007 makes the 2007-2010 term Morales’ fifth term in office. Dizon raises the following grounds before this Court:

1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF ITS JURISDICTION WHEN IT RULED THAT RESPONDENT MORALES DID NOT VIOLATE THE THREE-YEAR TERM LIMIT WHEN HE RAN AND WON AS MAYOR OF MABALACAT, PAMPANGA DURING THE MAY 14, 2007 ELECTION.

2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT DUE TO THIS HONORABLE COURT’S RULING IN THE AFORESAID CONSOLIDATED CASES, RESPONDENT MORALES’ FOURTH TERM IS CONSIDERED A GAP IN THE LATTER’S SERVICE WHEN HE FILED HIS CERTIFICATE OF CANDIDACY FOR THE 2007 ELECTIONS.

3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT THE FOURTH TERM OF MORALES WAS INTERRUPTED WHEN HE "RELINQUISHED" HIS POSITION FOR ONE MONTH AND 14 DAYS PRIOR TO THE MAY 14, 2007 ELECTION.4

The Ruling of the Court

The petition has no merit.

The present case covers a situation wherein we have previously ruled that Morales had been elected to the same office and had served three consecutive terms, and wherein we disqualified and removed Morales during his fourth term. Dizon claims that Morales is currently serving his fifth term as mayor. Is the 2007-2010 term really Morales’ fifth term?

The Effect of our Ruling in the Rivera Case

In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales from being a candidate in the May 2004 elections. The votes cast for Morales were considered stray votes. The dispositive portion in theRivera case reads:

WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales’ Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor of Mabalacat, Pampanga, the

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vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.

This Decision is immediately executory.

SO ORDERED.5

Article X, Section 8 of the 1987 Constitution reads:

The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Section 43(b) of the Local Government Code restated Article X, Section 8 of the 1987 Constitution as follows:

No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

For purposes of determining the resulting disqualification brought about by the three-term limit, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times.6 There should be a concurrence of two conditions for the application of the disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms.7

lavvphil.net

In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 30 June 2007. We disqualified Morales from his candidacy in the May 2004 elections because of the three-term limit. Although the trial court previously ruled that Morales’ proclamation for the 1998-2001 term was void, there was no interruption of the continuity of Morales’ service with respect to the 1998-2001 term because the trial court’s ruling was promulgated only on 4 July 2001, or after the expiry of the 1998-2001 term.

Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to the 2004-2007 term. Involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.8 Our decision in the Rivera case was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the vice mayor’s office of our decision. The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales did not hold office for the full term of 1 July 2004 to 30 June 2007.

2007-2010: Morales’ Fifth Term?

Dizon claims that the 2007-2010 term is Morales’ fifth term in office. Dizon asserts that even after receipt of our decision on 10 May 2007, Morales "waited for the election to be held on 14 May 2007 to ensure his victory for a fifth term."9

We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16 May 2007. However, because of his disqualification, Morales was not the duly elected mayor for the 2004-2007 term. Neither did Morales hold the position of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered to vacate his post before the expiration of the term. Morales’ occupancy of the position of mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the three-term limit rule.

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Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy litigations. x x x In other words, he was violating the rule on three-term limit with impunity by the sheer length of litigation and profit from it even more by raising the technicalities arising therefrom."10 To this, we quote our ruling in Lonzanida v. COMELEC:

The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioner’s incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court’s decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election.11

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on Elections En Bancdated 14 February 2008 as well as the Resolution of the Commission on Elections’ Second Division dated 27 July 2007.

SO ORDERED.

ANTONIO T. CARPIO Associate Justice

WE CONCUR:

(On official leave) REYNATO S. PUNO*

Chief Justice

LEONARDO A. QUISUMBING** Acting Chief Justice

(On official leave) CONSUELO YNARES-SANTIAGO***

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

(On official leave) ADOLFO S. AZCUNA****

Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

C E R T I F I C A T I O N

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Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

LEONARDO A. QUISUMBING Acting Chief Justice

Footnotes

* On official leave.

** Acting Chief Justice.

*** On official leave.

**** On official leave.

1 Rollo, pp. 38-39.

2 Id. at 43.

3 Id. at 53-54.

4 Id. at 17.

5 Rivera III v. Commission on Elections, G.R. No. 167591, 9 May 2007, 523 SCRA 41, 59.

6 See Borja, Jr. v. COMELEC, 356 Phil. 467 (1998).

7 See Lonzanida v. COMELEC, 370 Phil. 625 (1999).

8 Id. at 638.

9 Rollo, pp. 4-5.

10 Id. at 21.

11 Supra note 7 at 638-639.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 180444 April 8, 2008

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FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners, vs. COMMISSION ON ELECTION and SESINANDO F. POTENCIOSO, JR., respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

This petition1 for certiorari assails the June 2, 2007 Resolution2 of the First Division of the Commission on Elections (COMELEC) in SPA No. 07-421, denying the petition for disqualification filed by petitioners Federico T. Montebon and Eleanor M. Ondoy against respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007 Resolution3 of the COMELEC En Bancdenying the motion for reconsideration.

Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April 30, 2007, petitioners and other candidates4 for municipal councilor filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term.

In his answer, respondent admitted that he had been elected for three consecutive terms as municipal councilor. However, he claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007 elections.

In the hearing of May 10, 2007, the parties were directed to file their respective memoranda.

In petitioners’ memorandum, they maintained that respondent’s assumption of office as vice-mayor in January 2004 should not be considered an interruption in the service of his second term since it was a voluntary renunciation of his office as municipal councilor. They argued that, according to the law, voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected.

On the other hand, respondent alleged that a local elective official is not disqualified from running for the fourth consecutive time to the same office if there was an interruption in one of the previous three terms.

On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that respondent’s assumption of office as vice-mayor should be considered an interruption in the continuity of his service. His second term having been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal councilor.5

On appeal, the COMELEC En Banc upheld the ruling of the First Division, as follows:

Respondent’s assumption to the office of the vice-mayor of Tuburan in January 2004 during his second term as councilor is not a voluntary renunciation of the latter office. The same therefore operated as an effective disruption in the full service of his second term as councilor. Thus, in running for councilor again in the May 14, 2007 Elections, respondent is deemed to be running only for a second consecutive term as councilor of Tuburan, the first consecutive term fully served being his 2004-2007 term.

Petitioner Montebon’s and Ondoy’s June 9, 2007 manifestation and omnibus motion are hereby declared moot and academic with the instant disposition of their motion for reconsideration.

WHEREFORE, premises considered, petitioners’ motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.6

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Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondent’s assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term as municipal councilor.

The petition lacks merit.

The 1987 Constitution bars and disqualifies local elective officials from serving more than three consecutive terms in the same post. Section 8, Article X thereof states:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 of the Local Government Code also provides:

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

In Lonzanida v. Commission on Elections,7 the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms.8 In Borja, Jr. v. Commission on Elections,9 the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.10

While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004.

Succession in local government offices is by operation of law.11 Section 4412 of Republic Act No. 7160, otherwise known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor. Thus:

SEC. 44. Permanent Vacancies in the Offices 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 the 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. x x x

In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal councilor.

In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows:

The second sentence of the constitutional provision under scrutiny states, ‘Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected.’ The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice

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and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service.13 (Emphasis added)

Thus, respondent’s assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law. We quote with approval the ruling of the COMELEC that –

The legal successor is not given any option under the law on whether to accept the vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is permanently unable to succeed to the post does the law speak of alternate succession. Under no circumstances can simple refusal of the official concerned be considered as permanent inability within the contemplation of law. Essentially therefore, the successor cannot refuse to assume the office that he is mandated to occupy by virtue of succession. He can only do so if for some reason he is permanently unable to succeed and occupy the post vacated.

x x x x

Thus, succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary.14

WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007 Resolution of the COMELEC First Division denying the petition for disqualification and the September 28, 2007 Resolution of the COMELEC en banc denying the motion for reconsideration, are AFFIRMED.

SO ORDERED.

Puno, C.J., Quisumbing, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de Castro, Brion, JJ., concur.

Footnotes

1 Rollo, pp. 3-17.

2 Id. at 32-35. Penned by Commissioner Romeo A. Brawner and concurred in by Presiding Commissioner Resurreccion Z. Borra.

3 Id. at 18-29. Per curiam.

4 Jesus C. Mendoza, Teopisto C. Prosia, Jr., Nicolas Y. Edillon, Ernesto B. Caga, Albaerto T. Gallarde, and Eugenio M. Arigo.

5 Rollo, p. 34.

6 Id. at 27-28.

7 370 Phil. 625 (1999).

8 Id. at 636.

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9 356 Phil. 467 (1998).

10 Id. at 478.

11 See Borja, Jr. v. Commission on Elections, 356 Phil. 467, 476-477 (1998).

12 SEC. 44. Permanent Vacancies in the Offices 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 the 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. x x x.

13 Supra note 7 at 638.

14 Rollo, p. 26.==========

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 184082 March 17, 2009

NICASIO BOLOS, JR., Petitioner, vs. THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, Respondents.

D E C I S I O N

PERALTA, J.:

This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the Commission on Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions promulgated on March 4, 2008 and August 7, 2008 holding that petitioner Nicasio Bolos, Jr. is disqualified as a candidate for the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29,

2007 Barangay and Sangguniang Kabataan Elections on the ground that he has served the three-term limit provided in the Constitution and Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991.

The facts are as follows:

For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002.

In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004, leaving his post asPunong Barangay. He served the full term of the Sangguniang Bayan position, which was until June 30, 2007.

Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.

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Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same office, filed before the COMELEC a petition for the disqualification of petitioner as candidate on the ground that he had already served the three-term limit. Hence, petitioner is no longer allowed to run for the same position in accordance with Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160.

Cinconiegue contended that petitioner’s relinquishment of the position of Punong Barangay in July 2004 was voluntary on his part, as it could be presumed that it was his personal decision to run as municipal councilor in the May 14, 2004 National and Local Elections. He added that petitioner knew that if he won and assumed the position, there would be a voluntary renunciation of his post as Punong Barangay.

In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking, Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002. However, he countered that in the May 14, 2004 National and Local Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang Bayan member, his remaining term of office as Punong Barangay, which would have ended in 2007, was left unserved. He argued that his election and assumption of office as Sangguniang Bayanmember was by operation of law; hence, it must be considered as an involuntary interruption in the continuity of his last term of service.

Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition was heard by the Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the evidence, records of the case, and the Hearing Officer’s action on the matter were endorsed to and received by the Commission on November 21, 2007.

The issue before the COMELEC was whether or not petitioner’s election, assumption and discharge of the functions of the Office of Sangguniang Bayan member can be considered as voluntary renunciation of his office asPunong Barangay of Barangay Biking, Dauis, Bohol which will render unbroken the continuity of his service asPunong Barangay for the full term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have served three consecutive terms and shall be disqualified to run for the same position in the October 29, 2007 elections. But if it is considered as an involuntary

renunciation, petitioner’s service is deemed to have been interrupted; hence, he is not barred from running for another term.

In a Resolution1 dated March 4, 2008, the First Division of the COMELEC ruled that petitioner’s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption of office asSangguniang Bayan member of Dauis, Bohol, on July 1, 2004, was a voluntary renunciation of the Office ofPunong Barangay. The dispositive portion of the Resolution reads:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition. Respondent NICASIO BOLOS, JR., having already served as Punong Barangay of Barangay Biking, Dauis, Bohol for three consecutive terms is hereby DISQUALIFIED from being a candidate for the same office in the October 29, 2007 Barangay and SK Elections. Considering that respondent had already been proclaimed, said proclamation is hereby ANNULLED. Succession to said office shall be governed by the provisions of Section 44 of the Local Government Code.2

Petitioner’s motion for reconsideration was denied by the COMELEC en banc in a Resolution3 dated August 7, 2008.

Hence, this petition for certiorari raising this lone issue:

WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION AMOUNTING TO LACK OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISQUALIFYING [PETITIONER] AS A CANDIDATE FOR PUNONG BARANGAY IN THE OCTOBER 29, 2007 BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS AND, SUBSEQUENTLY, ANNULLING HIS PROCLAMATION.4

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The main issue is whether or not there was voluntary renunciation of the Office of Punong Barangay by petitioner when he assumed office as Municipal Councilor so that he is deemed to have fully served his third term as Punong Barangay, warranting his disqualification from running for the same position in the October 29, 2007 Barangayand Sangguniang Kabataan Elections.

Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29, 2007Barangay and Sangguniang Kabataan Elections since he did not serve continuously three consecutive terms. He admits that in the 1994, 1997 and 2002 Barangay elections, he was elected as Punong Barangay for three consecutive terms. Nonetheless, while serving his third term as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1, 2004, he assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred that he served the full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC gravely abused its discretion in disqualifying him as a candidate for Punong Barangay since he did not complete his third term by operation of law.

The argument does not persuade.

The three-term limit for elective local officials is contained in Section 8, Article X of the Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years, and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

David v. Commission on Elections5 elucidates that the Constitution did not expressly prohibit Congress from fixing any term of office for barangay officials, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of public service. The discussions in the Constitutional Commission showed that the term of office of barangay officials would be "[a]s may be determined by law," and more precisely, "[a]s provided for in the Local Government Code."6 Section 43(b) of the Local Government Code provides thatbarangay officials are covered by the three-term limit, while Section 43(c)7 thereof states that the term of office ofbarangay officials shall be five (5) years. The cited provisions read, thus:

Sec. 43. Term of Office. – x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

(c) The term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin after the regular election of barangay officials on the second Monday of May 1997:Provided, That the sangguniang kabataan members who were elected in the May 1996 elections shall serve until the next regular election of barangay officials.

Socrates v. Commission on Elections8 held that the rule on the three-term limit, embodied in the Constitution and the Local Government Code, has two parts:

x x x The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. 9

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In Lonzanida v. Commission on Elections,10 the Court stated that the second part of the rule on the three-term limit shows the clear intent of the framers of the Constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term. The Court held that two conditions for the application of the disqualification must concur: (1) that the official concerned has been elected for three consecutive terms in the same government post; and (2) that he has fully served three consecutive terms.11

In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive terms, satisfying the first condition for disqualification.

What is to be determined is whether petitioner is deemed to have voluntarily renounced his position as Punong Barangay during his third term when he ran for and won as Sangguniang Bayan member and assumed said office.

The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his position as Punong Barangay.

The COMELEC correctly held:

It is our finding that Nicasio Bolos, Jr.’s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, is a voluntary renunciation.

As conceded even by him, respondent (petitioner herein) had already completed two consecutive terms of office when he ran for a third term in the Barangay Elections of 2002. When he filed his certificate of candidacy for the Office of Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the acts attending his pursuit of his election as municipal councilor point out to an intent and readiness to give up his post as Punong Barangay once elected to the higher elective office, for it was very unlikely that respondent had filed his Certificate of Candidacy for the Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for him as such and then after being elected and proclaimed, return to his former position. He knew that his election as municipal councilor would entail abandonment of the position he held, and he intended to forego of it. Abandonment, like resignation, is voluntary.12

Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang Bayan member and, upon winning, assumed the position of Sangguniang Bayan member, thus, voluntarily relinquishing his office as Punong Barangay which the Court deems as a voluntary renunciation of said office.

Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member, he left his post as Punong Barangay by

operation of law; hence, he did not fully serve his third term as Punong Barangay.

The term "operation of law" is defined by the Philippine Legal Encyclopedia13 as "a term describing the fact that rights may be acquired or lost by the effect of a legal rule without any act of the person affected." Black's Law Dictionary also defines it as a term that "expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the mere application to the particular transaction of the established rules of law, without the act or cooperation of the party himself."14

An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v. Commission on Elections.15 The respondent therein, Sesinando F. Potencioso, Jr., was elected and served three consecutive terms as Municipal Councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, during his second term, he succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-Mayor pursuant to Section 44 of R.A. No. 7160.16 Potencioso’s assumption of office as Vice-Mayor was considered an involuntary severance from his office as Municipal Councilor, resulting in an interruption in his second term of service.17 The Court held that it could not be deemed to have been by reason of voluntary renunciation because it was by operation of law.18 Hence, Potencioso was qualified to run as candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007 Synchronized National and Local Elections.

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Further, in Borja, Jr. v. Commission on Elections,19 respondent therein, Jose T. Capco, Jr., was elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30, 1992. On September 2, 1989, Capco became Mayor, by operation of law, upon the death of the incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for two more terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros in the May 11, 1998 election. Capco’s disqualification was sought on the ground that he would have already served as Mayor for three consecutive terms by June 30, 1998; hence, he would be ineligible to serve for another term. The Court declared that the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve the same elective position.20 The Court held that Capco was qualified to run again as mayor in the next election because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law.21 Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor.22 The vice-mayor’s assumption of the mayorship in the event of the vacancy is more a matter of chance than of design.23 Hence, his service in that office should not be counted in the application of any term limit.24

In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead relinquished his office as Punong Barangay during his third term when he won and assumed office as Sangguniang Bayan member of Dauis, Bohol, which is deemed a voluntary renunciation of the Office of Punong Barangay.

In fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions dated March 4, 2008 and August 7, 2008, disqualifying petitioner from being a candidate for Punong Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.

WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4, 2008 and August 7, 2008 are hereby AFFIRMED. No pronouncement as to costs.

SO ORDERED.

DIOSDADO M. PERALTA Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

On Leave ARTURO D. BRION*

Associate Justice

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C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

Footnotes

* On Leave.

1 Rollo, pp. 15-23.

2 Id. at 22.

3 Id. at 24-27.

4 Id. at 8.

5 G.R. No. 127116, April 8, 1997, 271 SCRA 90, 104.

6 Id. at 104-105.

MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of the office of barangay officials as provided for?

MR. DAVIDE. As may be determined by law.

MR. NOLLEDO. As provided for in the Local Government Code?

MR. DAVIDE. Yes.

x x x x x x x x x

THE PRESIDENT. Is there any other comment? Is there any objection to this proposed new section as submitted by Commissioner Davide and accepted by the Committee?

MR. RODRIGO. Madam President, does this prohibition to serve for more than three consecutive terms apply to barangay officials?

MR. DAVIDE. Madam President, the voting that we had on the terms of office did not include the barangay officials because it was then the stand of the Chairman of the Committee on Local Governments that the term of barangay officials must be determined by law. So it is now for the law to determine whether the restriction on the number of reelections will be included in the Local Government Code.

MR. RODRIGO. So that is up to Congress to decide.

MR. DAVIDE. Yes.

MR. RODRIGO. I just wanted that clear in the record.

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7 As amended by R.A. No. 8524, which took effect on March 11, 1998.

8 G.R. No. 154512, November 12, 2002, 391 SCRA 457.

9 Id. at 467.

10 G.R. No. 135150, July 28, 1999, 311 SCRA 602, 613.

11 Id. at 611.

12 Rollo, pp. 18-19.

13 Jose Agaton R. Sibal, copyright 1986.

14 Sixth Edition, copyright 1990.

15 G.R. No. 180444, April 9, 2008, 551 SCRA 50.

16 SEC. 44. Permanent Vacancies in the Offices of the 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 the 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. x x x

17 Supra note 15.

18 Id.

19 G.R. No. 133495, September 3, 1998, 295 SCRA 157.

20 Id. at 169.

21 Id. at 170.

22 Id.

23 Id. at 168.

24 Id.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 184836 December 23, 2009

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners, vs. COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.

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D E C I S I O N

BRION, J.:

Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption because it renders the suspended public official unable to provide complete service for the full term; thus, such term should not be counted for the purpose of the three-term limit rule.

The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

THE ANTECEDENTS

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal case he then faced.This Court, however, subsequently lifted the Sandiganbayan’s suspension order; hence, he resumed performing the functions of his office and finished his term.

In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilo’s certificate of candidacy or to cancel it on the ground that he had been elected and had served for three terms; his candidacy for a fourth term therefore violated the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.

The COMELEC’s Second Division ruled against the petitioners and in Asilo’s favour in its Resolution of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had ordered.

The COMELEC en banc refused to reconsider the Second Division’s ruling in its October 7, 2008 Resolution; hence, the PRESENT PETITION raising the following ISSUES:

1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and

2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b) of RA 7160

Thus presented, the case raises the direct issue of whether Asilo’s preventive suspension constituted an interruption that allowed him to run for a 4th term.

THE COURT’S RULING

We find the petition meritorious.

General Considerations

The present case is not the first before this Court on the three-term limit provision of the Constitution, but is the first on the effect of preventive suspension on the continuity of an elective official’s term. To be sure, preventive suspension, as an interruption in the term of an elective public official, has been mentioned as an example in Borja v. Commission on Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the application of the three-term rule on the term that an elective official acquired by succession.

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a. The Three-term Limit Rule:

The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume any significance in this case.

As worded, the constitutional provision fixes the term of a local elective office and limits an elective official’s stay in office to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time – three years – during which an official has title to office and can serve. Appari v. Court of Appeals,3 a Resolution promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as follows:

The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the officer’s term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis supplied].1avvphi 1

A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another."

The "limitation" under this first branch of the provision is expressed in the negative – "no such official shall serve for more than three consecutive terms." This formulation – no more than three consecutive terms – is a clear command suggesting the existence of an inflexible rule. While it gives no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the meaning is clear – reference is to the term, not to the service that a public official may render.1awphi1 In other words, the limitation refers to the term.

The second branch relates to the provision’s express initiative to prevent any circumvention of the limitation through voluntary severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." This declaration complements the term limitation mandated by the first branch.

A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual interruption of service that does not affect "continuity of service for a full term" for purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without significance in determining constitutional intent.

The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot but mean an act that results in cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together with "renunciation" signifies an act of surrender based on the surenderee’s own freely exercised will; in other words, a loss of title to office by conscious choice. In the context of the three-term limit rule, such loss of title is not considered an interruption because it is presumed to be purposely sought to avoid the application of the term limitation.

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The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":

MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].

MR DAVIDE. Yes.

MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment?

MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term.

MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than abandonment and resignation?

MR. DAVIDE. It is more general, more embracing.6

From this exchange and Commissioner Davide’s expansive interpretation of the term "voluntary renunciation," the framers’ intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the constitutional provision, we note further that Commissioner Davide’s view is consistent with the negative formulation of the first branch of the provision and the inflexible interpretation that it suggests.

This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. We view preventive suspension vis-à-vis term limitation with this firm mindset.

b. Relevant Jurisprudence on the

Three-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provision’s contemplation, particularly on the "interruption in the continuity of service for the full term" that it speaks of.

Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the basis of the three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public official) for his supposedly third term had been declared invalid in a final and executory judgment. We ruled that the two requisites for the application of the disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in the same local government post; and 2. that he has fully served three consecutive terms) were not present. In so ruling, we said:

The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]

Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the three-term limit rule inapplicable.

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Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there had been a completed term for purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that the elective officials in these cases were never effectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded that there was nevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises: (1) the final decision that the third-termer lost the election was without practical and legal use and value, having been promulgated after the term of the contested office had expired; and (2) the official assumed and continuously exercised the functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and the deleterious effect of a contrary view – that the official (referring to the winner in the election protest) would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served the term pursuant to a proclamation made in due course after an election. This factual variation led the Court to rule differently fromLonzanida.

In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on indefinitely."

Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception.

Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit disqualification. The case presented the question of whether the disqualification applies if the official lost in the regular election for the supposed third term, but was elected in a recall election covering that term. The Court upheld the COMELEC’s ruling that the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term.

Socrates v. Commission on Elections11 also tackled recall vis-à-vis the three-term limit disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in the election that immediately followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 ½ years after Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully served three terms prior to the recall election and was therefore disqualified to run because of the three-term limit rule. We decided in Hagedorn’s favor, ruling that:

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms.

x x x x

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the

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reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term.12

Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor who had fully served for three consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the third term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the new city officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government post different from the office of the city mayor – the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the municipal mayor held power and authority as their chief executive for nine years. The Court said:

This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.14

Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if a rest period or break in the service between terms or tenure in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two years and fifteen months, respectively. Thus, these cases establish that the law contemplates a complete break from office during which the local elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

Seemingly differing from these results is the case of Montebon v. Commission on Elections,15 where the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law. The question posed when he subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor that would place him outside the operation of the three-term limit rule. We ruled that an interruption had intervened so that he could again run as councilor. This result seemingly deviates from the results in the cases heretofore discussed since the elective official continued to hold public office and did not become a private citizen during the interim. The common thread that identifies Montebon with the rest, however, is that the elective official vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be councilor – an interruption that effectively placed him outside the ambit of the three-term limit rule.

c. Conclusion Based on Law and Jurisprudence

From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective official’s continuous stay in office to no more than three consecutive terms, using "voluntary renunciation" as an example and standard of what does not constitute an interruption.

Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law.

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An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the failure to render service. The latter occurs during an office holder’s term when he retains title to the office but cannot exercise his functions for reasons established by law. Of course, the term "failure to serve" cannot be used once the right to office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost.

To put it differently although at the risk of repetition, Section 8, Article X – both by structure and substance – fixes an elective official’s term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position. The "voluntary renunciation" it speaks of refers only to the elective official’s voluntary relinquishment of office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of power or authority" that may occur for various reasons, with preventive suspension being only one of them. To quote Latasa v. Comelec:16

Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. [Emphasis supplied].

Preventive Suspension and the Three-Term Limit Rule

a. Nature of Preventive Suspension

Preventive suspension – whether under the Local Government Code,17 the Anti-Graft and Corrupt Practices Act,18 or the Ombudsman Act19 – is an interim remedial measure to address the situation of an official who have been charged administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability.

Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the gravity of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid information (that requires a finding of probable cause) has been filed in court, while under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability.

Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a premium to the protection of the service rather than to the interests of the individual office holder. Even then, protection of the service goes only as far as a temporary prohibition on the exercise of the functions of the official’s office; the official is reinstated to the exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no position is vacated when a public official is preventively suspended. This was what exactly happened to Asilo.

That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and prerogative under the Constitution and the laws. The imposition of preventive suspension, however, is not an unlimited power; there are limitations built into the laws20 themselves that the courts can enforce when these limitations are transgressed, particularly when grave abuse of discretion is present. In light of this well-defined parameters in the imposition of preventive suspension, we should not view preventive suspension from the extreme situation – that it can totally deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an election official’s term.

Term limitation and preventive suspension are two vastly different aspects of an elective officials’ service in office and they do not overlap. As already mentioned above, preventive suspension involves protection of the service and

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of the people being served, and prevents the office holder from temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an elective official has served his three terms in office without any break. Its companion concept – interruption of a term – on the other hand, requires loss of title to office. If preventive suspension and term limitation or interruption have any commonality at all, this common point may be with respect to the discontinuity of service that may occur in both. But even on this point, they merely run parallel to each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to render serviceduring an unbroken term; in the context of term limitation, interruption of service occurs after there has been abreak in the term.

b. Preventive Suspension and the Intent of the Three-Term Limit Rule

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective official’s stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period.The best indicator of the suspended official’s continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.

To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary – some of them personal and some of them by operation of law – that may temporarily prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of what an effective interruption is.

c. Preventive Suspension and Voluntary Renunciation

Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the suspended official, except in the indirect sense that he may have voluntarily committed the act that became the basis of the charge against him. From this perspective, preventive suspension does not have the element of voluntariness that voluntary renunciation embodies. Neither does it contain the element of renunciation or loss of title to office as it merely involves the temporary incapacity to perform the service that an elective office demands. Thus viewed, preventive suspension is – by its very nature – the exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery of service, not the title to the office. The easy conclusion therefore is that they are, by nature, different and non-comparable.

But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-term limit rule.

Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a mode of circumventing the three-term limit rule.

Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it does not require relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has been imposed. In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a circumvention more potent than the voluntary renunciation that the Constitution expressly disallows as an interruption.

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Conclusion

To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension in 2005, as preventive suspension does not interrupt an elective official’s term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the Constitution when it granted due course to Asilo’s certificate of candidacy for a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less than the Constitution and was one undertaken outside the contemplation of law.21

WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private respondent Asilo.

SO ORDERED.

ARTURO D. BRION Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

ANTONIO T. CARPIO Acting Chief Justice

CONCHITA CARPIO MORALES Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

DIOSDADO M. PERALTA Associate Justice

RENATO C. CORONA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

Footnotes

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1 Filed under Rule 64, in relation with Rule 65 of the Rules of Court.

2 329 Phil. 409 (1996).

3 G.R. No. L-30057, January 31, 1984, 127 SCRA 231, 240.

4 401 Phil. 77, 88 (2000).

5 Webster’s Third New International Dictionary (1993), p. 1922.

6 II RECORD, Constitutional Commission 591 (August 1, 1986).

7 G.R. No. 135150, July 28, 1999, 311 SCRA 602.

8 G.R. No. 163295, January 23, 2006, 479 SCRA 473.

9 G.R. No. 167591, May 9, 2007, 523 SCRA 41.

10 426 Phil. 472 (2002).

11 440 Phil. 106 (2002).

12 Id. at 125-127.

13 G.R. No. 154829, December 10, 2003, 417 SCRA 601.

14 Id. at 312-313.

15 G.R. No. 180444, April 9, 2008, 551 SCRA 50.

16 Supra note 12.

17 RA 7160, Sections 63 and 64.

18 RA 3019, Section 13.

19 RA 6770, Sections 24 and 25.

20 See: Sec. 24, R.A. No. 6770; Sec. 63, R.A. No. 7160; Sec. 13, R.A. No. 3019.

21 Grave abuse of discretion defies exact definition, but it generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction – the abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility; Quintos v. Commission on Elections, 440 Phil. 1045, 1064 (2002), citingSahali v. Commission on Elections, 381 Phil. 505 (2002).

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION

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LEONARDO-DE CASTRO, J.:

I concur with the well-written ponencia of Honorable Justice Arturo D. Brion which holds that "preventive suspension" is not equivalent to an "involuntary renunciation" of a public office for the purpose of applying Section 8, Article X of the Constitution. However, I wish to further elucidate my concurrence to the views of Justice Brion and give my reflections on the implications of the outcome of the case for which an elective public official is suspended pendente lite, which I believe is relevant to the issue on hand.

The aforementioned provision of Article X reads as follows:

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

The minority view considers "preventive suspension" as an "involuntary renunciation" of an elective public official’s term of office, such that even if he was elected thrice to serve for three (3) consecutive terms, he may still run for a fourth term because his service was interrupted by his preventive suspension. However, according to this view, his continuation in office for such fourth term will depend on his exoneration in the case where he was preventively suspended. In other words, the suspended public official will be deemed disqualified to run for a fourth term only upon his conviction which will retroact to the date when he filed his certificate of candidacy for his fourth term. This means that even if he runs and wins a fourth term and thereafter is convicted in the case in which he was previously preventively suspended, he will be deemed to have renounced voluntarily his fourth term.

I concur with Justice Brion’s view that Borja v. Commission on Elections is not the controlling precedent on preventive suspension because this matter was not squarely raised in the said case and that the consideration of preventive suspension from the perspective of voluntary or involuntary renunciation is inappropriate.

Nonetheless, I would like to venture into the effect of the acquittal or conviction of the preventively suspended public officer to further support my position that "preventive suspension" does not partake of the nature of "involuntary renunciation" of an office.

The language of Section 8, Article X of the Constitution implies that an interruption in the continuity of the service of elective officials is a valid ground for him to run for a fourth consecutive term. The same provision of the Constitution is explicit and categorical in its declaration that "voluntary renunciation" of elective position for any length of time is not to be considered as an interruption in the continuity of service of an elective official. Conversely, "involuntary renunciation of office" can be deemed an interruption in the continuity of the service of the elective official which would render him eligible to run for a fourth term.

In my opinion, preventive suspension cannot be considered as an "involuntary renunciation" of an elective position. One who has been elected to a public office for three (3) consecutive terms is prohibited to run for the same position for a fourth term, notwithstanding his preventive suspension during any of his first three (3) consecutive terms. Since preventive suspension is not akin to involuntary renunciation, the rule should hold true irrespective of his acquittal or conviction in the case in which an elective official was preventively suspended.

There is an inherent difference between "renunciation" and "preventive suspension" even if the former is involuntary. The former connotes an act of abandonment or giving up of a position by a public officer which would result in the termination of his service, whereas the latter means that a public officer is prevented by legal compulsion, not by his own volition, from discharging the functions and duties of his office, but without being removed or separated from his office. The term of office of a preventively suspended public officer subsists because preventive suspension does not create a vacancy in his office. As Justice Brion puts it, he does not become a private citizen while he is under preventive suspension. The continuity of the term of the suspended official during the period of his preventive suspension, whether rendered administrative or court proceedings, is recognized by law and jurisprudence, such that a public officer who is acquitted of the charges against him, is entitled to receive the salaries and benefits which he failed to receive during the period of his preventive suspension (Section 64, Local Government Code of 1991, Republic Act (R.A.) No. 7160; Section 13, R.A. 3019, as amended; Tan v. Department of Public Works and Highways, G.R. No. 143289, Nov. 11, 2004, 442 SCRA 192, 202).

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If the suspended public officer is convicted of the charges, still there is no interruption of service within the three (3) consecutive terms, within the meaning of the Constitution which will warrant his running for a fourth term. Here, it is not the preventive suspension but his having committed a wrongdoing, which gave ground for his removal from office or for forfeiture of the remainder of his term which can be considered as voluntary renunciation of his office. The commission of a crime or an administrative infraction which is a ground for the removal from office of a public officer is akin to his "voluntary renunciation" of his office. He may be deemed, by his willful wrongdoing, which betrayed public trust, to have thereby voluntarily renounced his office under the provision of Section 8, Article X of the Constitution.

I beg to disagree with the proposition that the suspended public official should be allowed to run for a fourth time and if convicted, he should be considered to have voluntarily renounced his fourth term. My reason is that the crime was committed not during his fourth term but during his previous term. The renunciation should refer to the term during which the crime was committed. The commission of the crime is tantamount to his voluntary renunciation of the term he was then serving, and not any future term. Besides, the electorate should not be placed in an uncertain situation wherein they will be allowed to vote for a fourth term a candidate who may later on be convicted and removed from office by a judgment in a case where he was previously preventively suspended.

In view of the foregoing, I reiterate my concurrence with the majority opinion that preventive suspension, regardless of the outcome of the case in which an elective public officer has been preventively suspended, should not be considered as an interruption of the service of the said public officer that would qualify him to run for a fourth term.

TERESITA J. LEONARDO-DE CASTRO Associate Justice

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

ABAD, J.:

I join the majority opinion and add a few thoughts of my own.

The Facts

Respondent Wilfredo F. Asilo won three consecutive elections as councilor of Lucena City, specifically from 1998 to 2001, from 2001 to 2004, and from 2004 to 2007. During his last term or on October 3, 2005, the Sandiganbayan ordered him placed under preventive suspension for ninety days in connection with a crime of which he had been charged. After about thirty-seven days, however, or on November 9, 2005, this Court lifted the order of suspension and allowed Asilo to resume the duties of his office.

Believing that his brief preventive suspension interrupted his full service in office and allowed him to seek a fourth term as councilor because of it, Asilo filed a certificate of candidacy for the same office in the 2007 elections. When this was questioned, both the Second Division of the Commission on Elections and its En Banc ruled that the three-term limit did not apply to Asilo’s case since the Sandiganbayan’s order of preventive suspension did not allow him to complete the third term for which he was elected in 2004.

The Issue

The issue in this case is whether or not respondent Asilo’s preventive suspension during his third term as councilor, which shortened the length of his normal service by thirty-seven days, allowed him to run for a fourth consecutive term for the same office.

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Discussion

The issue in this case revolves around Section 8 of Article X of the 1987 Constitution:

The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

The first part states that no local official shall serve for more than three consecutive terms.

The second, on the other hand, states that voluntary renunciation of office shall not be considered an interruption in the continuity of his service for the full term for which he was elected.1

That the first part is a prohibitory rule is not in question. This is quite clear. It says that no local official can serve for more than three terms. Traditionally, politicians find ways of entrenching themselves in their offices and the consensus is that this practice is not ideal for good government. Indeed, the Constitution expresses through the three-term limit rule a determination to open public office to others and bring fresh ideas and energies into government as a matter of policy. The mandate of this Court in this case is to enforce such constitutionally established prohibition.

Actually, what creates the mischief is the statement in the second part of Section 8 that "voluntary renunciation" of office shall not be considered an interruption in the continuity of his service for the full term for which the local official was elected. The dissenting opinion infers from this that "any service short of full service of three consecutive terms, save for voluntary renunciation of office, does not bar an elective local official from running again for the same local government post." In other words, elected politicians whose services are cut in the course of any term by "involuntary renunciation" are eligible for a fourth term.

Relying on its above inference, the dissenting opinion claims that preventive suspension is, by default, an "involuntary renunciation" of an elective official’s term of office since he does not choose to be preventively suspended. Preventive suspension cuts into the full term of the elected official and gives him justification for seeking a fourth term.

But, there is in reality no such thing as "involuntary" renunciation. Renunciation is essentially "formal or voluntary." It is the act, says Webster, "of renouncing; a giving up formally or voluntarily, often at a sacrifice, of a right, claim, title, etc."2 If the dissenting opinion insists on using the term "involuntary renunciation," it could only mean "coerced" renunciation, i.e., renunciation forced on the elected official. With this meaning, any politician can simply arrange for someone to make him sign a resignation paper at gun point. This will justify his running for a fourth term. But, surely, the law cannot be mocked in this way.

Parenthetically, there can be other causes for "involuntary renunciation," interruption of service that is not of the elected official’s making. For instance, through the fault of a truck driver, the elected official’s car could fall into a ditch and put the official in the hospital for a week, cutting his service in office against his will. Temporary illness can also interrupt service. Natural calamities like floods and earthquakes could produce the same result. Since these are "involuntary renunciations" or interruptions in the elective official’s service, it seems that he would, under the dissenting opinion’s theory, be exempt from the three-year rule. But surely, Section 8 could not have intended this for it would overwhelm the constitutional ban against election for more than three consecutive terms.

Actually, though, "voluntary renunciation," the term that the law uses simply means resignation from or abandonment of office. The elected official who voluntarily resigns or abandons his duties freely renounces the powers, rights, and privileges of his position. The opposite of "voluntary renunciation" in this context would be "removal from office," a sanction imposed by some duly authorized person or body, not an initiative of or a choice freely made by the elected official. Should "removal from office" be the test, therefore, for determining interruption of service that will warrant an exception to the three-term limit rule?

Apparently not, since an elected official could be removed from office through recall (a judgment by the electorates that he is unfit to continue serving in office),3 criminal conviction by final judgment,4 and administrative

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dismissal.5 Surely, the Constitution could not have intended to reward those removed in this way with the opportunity to skip the three-year bar.

The only interruption in the continuity of service of an elected official that does not amount to removal is termination of his service by operation of law. This is exemplified in the case of Montebon v. COMELEC,6 where this Court deemed the highest-ranking councilor’s third term as such "involuntarily" interrupted when he succeeded as vice mayor by operation of law upon the latter’s retirement. This Court considered the ranking councilor eligible to run again as councilor for the succeeding term.

But Montebon cannot be compared with Asilo’s case since Montebon’s term as councilor ended by operation of law when the vice mayor retired and Montebon had to step into his shoes.7 Asilo’s term, on the other hand, did not end when the Sandiganbayan placed him under preventive suspension. He did not vacate his office. It merely enjoined him in the meantime from performing his duties and exercising his powers. His term ran the full course; it was not cut.

It might be correct to say that the will of the electorates is for Asilo to serve the full term of his office. But, given the presumption that the electorates knew of the law governing preventive suspension when they elected him, it must be assumed that they elected him subject to the condition that he can be preventively suspended if the occasion warrants. Such suspension cannot, therefore, be regarded as a desecration of the people’s will.

It does not matter that the preventive suspension imposed on the elected official may later on prove unwarranted. The law provides the proper remedy for such error. Here, the Supreme Court supplied that remedy. It set aside the preventive suspension imposed on Asilo by the Sandiganbayan. There is, on the other hand, no law that allows an elected official to tack to his term of office the period of service he had lost by reason of preventive suspension just so he can make up for the loss. The dissenting opinion’s position would create a rule that will allow Asilo, who lost thirty-seven days of service because of that suspension, a right to be re-elected to a fourth consecutive term of one thousand ninety-five days (365 days x 3).

In Borja, Jr. v. COMELEC,8 this Court cited a hypothetical situation where B is elected Mayor and, during his first term, he is twice suspended for misconduct for a total of one year. If he is twice reelected after that, can he run for one more term in the next election? This Court answered in the affirmative, stating as reason that B successfully served only two full terms.9

But such interpretation of the law wounds its very spirit for, in effect, it would reward the elected official for his misconduct. Fr. Joaquin G. Bernas, S.J., a recognized constitutionalist, is also not swayed by it. He points out that when an elected official is suspended, he shortens neither his term nor his tenure. He is still seen as the rightful holder of the office and, therefore, must be considered as having served a full term during the period of suspension.10

ACCORDINGLY, I submit that preventive suspension did not interrupt Asilo’s term of office from 2004-2007 and it cannot be considered an exception to the three-term limit rule. Thus, Asilo is disqualified from running in the 2007 elections for violation of that rule pursuant to Section 8, Article X of the Constitution. I vote to GRANT the petition.

ROBERTO A. ABAD Associate Justice

Footnotes

1 Socrates v. Commission on Elections, G.R. No. 154512, November 12, 2002, 391 SCRA 457, 467.

2 Webster’s New World College Dictionary, Third Edition, p. 1137.

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3 R.A. No. 7160, Section 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.

4 There are cases where an official is punished with the penalty of perpetual disqualification from public office and, thus, the three-term rule ceases to be an issue. See R.A. No. 3019, Section 9 (a).

5 Under Section 40 (b) of R.A. No. 7160, those removed from office as a result of an administrative case are disqualified from running for any elective local position. In this case, the three-term rule also ceases to be an issue.

6 G.R. No. 180444, April 9, 2008, 551 SCRA 50.

7 R.A. No. 7160, Section 44. Permanent Vacancies in the Offices 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 the 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. x x x.

8 G.R. No. 133495, September 3, 1998, 295 SCRA 157.

9 Id. at 169.

10 Bernas S.J., Joaquin. The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Ed., pp. 1092-1093.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

G.R. No. 170656 August 15, 2007

THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY and BAYANI FERNANDO as Chairman of the Metropolitan Manila Development Authority, petitioners, vs. VIRON TRANSPORTATION CO., INC., respondent.

x --------------------------------------------- x

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G.R. No. 170657 August 15, 2007

HON. ALBERTO G. ROMULO, Executive Secretary, the METROPOLITAN MANILA DEVELOPMENT AUTHORITY and BAYANI FERNANDO as Chairman of the Metropolitan Manila Development Authority,petitioners, vs. MENCORP TRANSPORTATION SYSTEM, INC., respondent.

D E C I S I O N

CARPIO MORALES, J.:

The following conditions in 1969, as observed by this Court:

Vehicles have increased in number. Traffic congestion has moved from bad to worse, from tolerable to critical. The number of people who use the thoroughfares has multiplied x x x,1

have remained unchecked and have reverberated to this day. Traffic jams continue to clog the streets of Metro Manila, bringing vehicles to a standstill at main road arteries during rush hour traffic and sapping people’s energies and patience in the process.

The present petition for review on certiorari, rooted in the traffic congestion problem, questions the authority of the Metropolitan Manila Development Authority (MMDA) to order the closure of provincial bus terminals along Epifanio de los Santos Avenue (EDSA) and major thoroughfares of Metro Manila.

Specifically challenged are two Orders issued by Judge Silvino T. Pampilo, Jr. of the Regional Trial Court (RTC) of Manila, Branch 26 in Civil Case Nos. 03-105850 and 03-106224.

The first assailed Order of September 8, 2005,2 which resolved a motion for reconsideration filed by herein respondents, declared Executive Order (E.O.) No. 179, hereafter referred to as the E.O., "unconstitutional as it constitutes an unreasonable exercise of police power." The second assailed Order of November 23, 20053 denied petitioners’ motion for reconsideration.

The following facts are not disputed:

President Gloria Macapagal Arroyo issued the E.O. on February 10, 2003, "Providing for the Establishment of Greater Manila Mass Transport System," the pertinent portions of which read:

WHEREAS, Metro Manila continues to be the center of employment opportunities, trade and commerce of the Greater Metro Manila area;

WHEREAS, the traffic situation in Metro Manila has affected the adjacent provinces of Bulacan, Cavite, Laguna, and Rizal, owing to the continued movement of residents and industries to more affordable and economically viable locations in these provinces;

WHEREAS, the Metropolitan Manila Development Authority (MMDA) is tasked to undertake measures to ease traffic congestion in Metro Manila and ensure the convenient and efficient travel of commuters within its jurisdiction;

WHEREAS, a primary cause of traffic congestion in Metro Manila has been the numerous buses plying the streets that impedes [sic] the flow of vehicles and commuters due to the inefficient connectivity of the different transport modes;

WHEREAS, the MMDA has recommended a plan to decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities that would integrate the existing transport modes, namely the buses, the

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rail-based systems of the LRT, MRT and PNR and to facilitate and ensure efficient travel through the improved connectivity of the different transport modes;

WHEREAS, the national government must provide the necessary funding requirements to immediately implement and render operational these projects; and extent to MMDA such other assistance as may be warranted to ensure their expeditious prosecution.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers vested in me by law, do hereby order:

Section 1. THE PROJECT. – The project shall be identified as GREATER MANILA TRANSPORT SYSTEM Project.

Section 2. PROJECT OBJECTIVES. – In accordance with the plan proposed by MMDA, the project aims to develop four (4) interim intermodal mass transport terminals to integrate the different transport modes, as well as those that shall hereafter be developed, to serve the commuting public in the northwest, north, east, south, and southwest of Metro Manila. Initially, the project shall concentrate on immediately establishing the mass transport terminals for the north and south Metro Manila commuters as hereinafter described.

Section 3. PROJECT IMPLEMENTING AGENCY. – The Metropolitan Manila Development Authority (MMDA), is hereby designated as the implementing Agency for the project. For this purpose, MMDA is directed to undertake such infrastructure development work as may be necessary and, thereafter, manage the project until it may be turned-over to more appropriate agencies, if found suitable and convenient. Specifically, MMDA shall have the following functions and responsibilities:

a) Cause the preparation of the Master Plan for the projects, including the designs and costing;

b) Coordinate the use of the land and/or properties needed for the project with the respective agencies and/or entities owning them;

c) Supervise and manage the construction of the necessary structures and facilities;

d) Execute such contracts or agreements as may be necessary, with the appropriate government agencies, entities, and/or private persons, in accordance with existing laws and pertinent regulations, to facilitate the implementation of the project;

e) Accept, manage and disburse such funds as may be necessary for the construction and/or implementation of the projects, in accordance with prevailing accounting and audit polices and practice in government.

f) Enlist the assistance of any national government agency, office or department, including local government units, government-owned or controlled corporations, as may be necessary;

g) Assign or hire the necessary personnel for the above purposes; and

h) Perform such other related functions as may be necessary to enable it to accomplish the objectives and purposes of this Executive Order.4 (Emphasis in the original; underscoring supplied)

As the above-quoted portions of the E.O. noted, the primary cause of traffic congestion in Metro Manila has been the numerous buses plying the streets and the inefficient connectivity of the different transport modes;5 and the MMDA had "recommended a plan to decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more and convenient access to the mass transport system to the

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commuting public through the provision of mass transport terminal facilities"6 which plan is referred to under the E.O. as the Greater Manila Mass Transport System Project (the Project).

The E.O. thus designated the MMDA as the implementing agency for the Project.

Pursuant to the E.O., the Metro Manila Council (MMC), the governing board and policymaking body of the MMDA, issued Resolution No. 03-07 series of 20037 expressing full support of the Project. Recognizing the imperative to integrate the different transport modes via the establishment of common bus parking terminal areas, the MMC cited the need to remove the bus terminals located along major thoroughfares of Metro Manila.8

On February 24, 2003, Viron Transport Co., Inc. (Viron), a domestic corporation engaged in the business of public transportation with a provincial bus operation,9 filed a petition for declaratory relief10 before the RTC11 of Manila.

In its petition which was docketed as Civil Case No. 03-105850, Viron alleged that the MMDA, through Chairman Fernando, was "poised to issue a Circular, Memorandum or Order closing, or tantamount to closing, all provincial bus terminals along EDSA and in the whole of the Metropolis under the pretext of traffic regulation."12 This impending move, it stressed, would mean the closure of its bus terminal in Sampaloc, Manila and two others in Quezon City.

Alleging that the MMDA’s authority does not include the power to direct provincial bus operators to abandon their existing bus terminals to thus deprive them of the use of their property, Viron asked the court to construe the scope, extent and limitation of the power of the MMDA to regulate traffic under R.A. No. 7924, "An Act Creating the Metropolitan Manila Development Authority, Defining its Powers and Functions, Providing Funds Therefor and For Other Purposes."

Viron also asked for a ruling on whether the planned closure of provincial bus terminals would contravene the Public Service Act and related laws which mandate public utilities to provide and maintain their own terminals as a requisite for the privilege of operating as common carriers.13

Mencorp Transportation System, Inc. (Mencorp), another provincial bus operator, later filed a similar petition for declaratory relief14 against Executive Secretary Alberto G. Romulo and MMDA Chairman Fernando.

Mencorp asked the court to declare the E.O. unconstitutional and illegal for transgressing the possessory rights of owners and operators of public land transportation units over their respective terminals.

Averring that MMDA Chairman Fernando had begun to implement a plan to close and eliminate all provincial bus terminals along EDSA and in the whole of the metropolis and to transfer their operations to common bus terminals,15 Mencorp prayed for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction to restrain the impending closure of its bus terminals which it was leasing at the corner of EDSA and New York Street in Cubao and at the intersection of Blumentritt, Laon Laan and Halcon Streets in Quezon City. The petition was docketed as Civil Case No. 03-106224 and was raffled to Branch 47 of the RTC of Manila.

Mencorp’s petition was consolidated on June 19, 2003 with Viron’s petition which was raffled to Branch 26 of the RTC, Manila.

Mencorp’s prayer for a TRO and/or writ of injunction was denied as was its application for the issuance of a preliminary injunction.16

In the Pre-Trial Order17 issued by the trial court, the issues were narrowed down to whether 1) the MMDA’s power to regulate traffic in Metro Manila included the power to direct provincial bus operators to abandon and close their duly established and existing bus terminals in order to conduct business in a common terminal; (2) the E.O. is consistent with the Public Service Act and the Constitution; and (3) provincial bus operators would be deprived of their real properties without due process of law should they be required to use the common bus terminals.

Upon the agreement of the parties, they filed their respective position papers in lieu of hearings.

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By Decision18 of January 24, 2005, the trial court sustained the constitutionality and legality of the E.O. pursuant to R.A. No. 7924, which empowered the MMDA to administer Metro Manila’s basic services including those of transport and traffic management.

The trial court held that the E.O. was a valid exercise of the police power of the State as it satisfied the two tests of lawful subject matter and lawful means, hence, Viron’s and Mencorp’s property rights must yield to police power.

On the separate motions for reconsideration of Viron and Mencorp, the trial court, by Order of September 8, 2005, reversed its Decision, this time holding that the E.O. was "an unreasonable exercise of police power"; that the authority of the MMDA under Section (5)(e) of R.A. No. 7924 does not include the power to order the closure of Viron’s and Mencorp’s existing bus terminals; and that the E.O. is inconsistent with the provisions of the Public Service Act.

Petitioners’ motion for reconsideration was denied by Resolution of November 23, 2005.

Hence, this petition, which faults the trial court for failing to rule that: (1) the requisites of declaratory relief are not present, there being no justiciable controversy in Civil Case Nos. 03-105850 and 03-106224; and (2) the President has the authority to undertake or cause the implementation of the Project.19

Petitioners contend that there is no justiciable controversy in the cases for declaratory relief as nothing in the body of the E.O. mentions or orders the closure and elimination of bus terminals along the major thoroughfares of Metro Manila. Viron and Mencorp, they argue, failed to produce any letter or communication from the Executive Department apprising them of an immediate plan to close down their bus terminals.

And petitioners maintain that the E.O. is only an administrative directive to government agencies to coordinate with the MMDA and to make available for use government property along EDSA and South Expressway corridors. They add that the only relation created by the E.O. is that between the Chief Executive and the implementing officials, but not between third persons.

The petition fails.

It is true, as respondents have pointed out, that the alleged deficiency of the consolidated petitions to meet the requirement of justiciability was not among the issues defined for resolution in the Pre-Trial Order of January 12, 2004. It is equally true, however, that the question was repeatedly raised by petitioners in their Answer to Viron’s petition,20 their Comment of April 29, 2003 opposing Mencorp’s prayer for the issuance of a TRO,21 and their Position Paper of August 23, 2004.22

In bringing their petitions before the trial court, both respondents pleaded the existence of the essential requisites for their respective petitions for declaratory relief,23 and refuted petitioners’ contention that a justiciable controversy was lacking.24 There can be no denying, therefore, that the issue was raised and discussed by the parties before the trial court.

The following are the essential requisites for a declaratory relief petition: (a) there must be a justiciable controversy; (b) the controversy must be between persons whose interests are adverse; (c) the party seeking declaratory relief must have a legal interest in the controversy; and (d) the issue invoked must be ripe for judicial determination.25

The requirement of the presence of a justiciable controversy is satisfied when an actual controversy or theripening seeds thereof exist between the parties, all of whom are sui juris and before the court, and the declaration sought will help in ending the controversy.26 A question becomes justiciable when it is translated into a claim of right which is actually contested.27

In the present cases, respondents’ resort to court was prompted by the issuance of the E.O. The 4th Whereas clause of the E.O. sets out in clear strokes the MMDA’s plan to "decongest traffic by eliminating the bus terminals now located along major Metro Manila thoroughfares and providing more convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities x x x." (Emphasis supplied)

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Section 2 of the E.O. thereafter lays down the immediate establishment of common bus terminals for north- and south-bound commuters. For this purpose, Section 8 directs the Department of Budget and Management to allocate funds of not more than one hundred million pesos (P100,000,000) to cover the cost of the construction of the north and south terminals. And the E.O. was made effective immediately.

The MMDA’s resolve to immediately implement the Project, its denials to the contrary notwithstanding, is also evident from telltale circumstances, foremost of which was the passage by the MMC of Resolution No. 03-07, Series of 2003 expressing its full support of the immediate implementation of the Project.

Notable from the 5th Whereas clause of the MMC Resolution is the plan to "remove the bus terminals located along major thoroughfares of Metro Manila and an urgent need to integrate the different transport modes." The 7th Whereas clause proceeds to mention the establishment of the North and South terminals.

As alleged in Viron’s petition, a diagram of the GMA-MTS North Bus/Rail Terminal had been drawn up, and construction of the terminal is already in progress. The MMDA, in its Answer28 and Position Paper,29 in fact affirmed that the government had begun to implement the Project.

It thus appears that the issue has already transcended the boundaries of what is merely conjectural or anticipatory.lawphil

Under the circumstances, for respondents to wait for the actual issuance by the MMDA of an order for the closure of respondents’ bus terminals would be foolhardy for, by then, the proper action to bring would no longer be for declaratory relief which, under Section 1, Rule 6330 of the Rules of Court, must be brought before there is a breach or violation of rights.

As for petitioners’ contention that the E.O. is a mere administrative issuance which creates no relation with third persons, it does not persuade. Suffice it to stress that to ensure the success of the Project for which the concerned government agencies are directed to coordinate their activities and resources, the existing bus terminals owned, operated or leased by third persons like respondents would have to be eliminated; and respondents would be forced to operate from the common bus terminals.

It cannot be gainsaid that the E.O. would have an adverse effect on respondents. The closure of their bus terminals would mean, among other things, the loss of income from the operation and/or rentals of stalls thereat. Precisely, respondents claim a deprivation of their constitutional right to property without due process of law.

Respondents have thus amply demonstrated a "personal and substantial interest in the case such that [they have] sustained, or will sustain, direct injury as a result of [the E.O.’s] enforcement."31 Consequently, the established rule that the constitutionality of a law or administrative issuance can be challenged by one who will sustain a direct injury as a result of its enforcement has been satisfied by respondents.

On to the merits of the case.

Respondents posit that the MMDA is devoid of authority to order the elimination of their bus terminals under the E.O. which, they argue, is unconstitutional because it violates both the Constitution and the Public Service Act; and that neither is the MMDA clothed with such authority under R.A. No. 7924.

Petitioners submit, however, that the real issue concerns the President’s authority to undertake or to cause the implementation of the Project. They assert that the authority of the President is derived from E.O. No. 125, "Reorganizing the Ministry of Transportation and Communications Defining its Powers and Functions and for Other Purposes," her residual power and/or E.O. No. 292, otherwise known as the Administrative Code of 1987. They add that the E.O. is also a valid exercise of the police power.

E.O. No. 125,32 which former President Corazon Aquino issued in the exercise of legislative powers, reorganized the then Ministry (now Department) of Transportation and Communications. Sections 4, 5, 6 and 22 of E.O. 125, as amended by E.O. 125-A,33 read:

SECTION 4. Mandate. — The Ministry shall be the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity of the Executive Branch of the

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government in the promotion, development and regulation of dependable and coordinated networks of transportation and communication systems as well as in the fast, safe, efficient and reliable postal, transportation and communications services.

To accomplish such mandate, the Ministry shall have the following objectives:

(a) Promote the development of dependable and coordinated networks of transportation and communications systems;

(b) Guide government and private investment in the development of the country’s intermodal transportation and communications systems in a most practical, expeditious, and orderly fashion for maximum safety, service, and cost effectiveness; (Emphasis and underscoring supplied)

x x x x

SECTION 5. Powers and Functions. — To accomplish its mandate, the Ministry shall have the following powers and functions:

(a) Formulate and recommend national policies and guidelines for the preparation and implementation of integrated and comprehensive transportation and communications systems at the national, regional and local levels;

(b) Establish and administer comprehensive and integrated programs for transportation and communications, and for this purpose, may call on any agency, corporation, or organization, whether public or private, whose development programs include transportation and communications as an integral part thereof, to participate and assist in the preparation and implementation of such program;

(c) Assess, review and provide direction to transportation and communications research and development programs of the government in coordination with other institutions concerned;

(d) Administer all laws, rules and regulations in the field of transportation and communications; (Emphasis and underscoring supplied)

x x x x

SECTION 6. Authority and Responsibility. — The authority and responsibility for the exercise of the mandate of the Ministry and for the discharge of its powers and functions shall be vested in the Minister of Transportation and Communications, hereinafter referred to as the Minister, who shall have supervision and control over the Ministry and shall be appointed by the President. (Emphasis and underscoring supplied)

SECTION 22. Implementing Authority of Minister. — The Minister shall issue such orders, rules, regulations and other issuances as may be necessary to ensure the effective implementation of the provisions of this Executive Order. (Emphasis and underscoring supplied)

It is readily apparent from the abovequoted provisions of E.O. No. 125, as amended, that the President, then possessed of and exercising legislative powers, mandated the DOTC to be the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity to promote, develop and regulate networks of transportation and communications. The grant of authority to the DOTC includes the power toestablish and administer comprehensive and integrated programs for transportation and communications.

As may be seen further, the Minister (now Secretary) of the DOTC is vested with the authority and responsibility to exercise the mandate given to the department. Accordingly, the DOTC Secretary is authorized to issue such orders, rules, regulations and other issuances as may be necessary to ensure the effective implementation of the law.

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Since, under the law, the DOTC is authorized to establish and administer programs and projects for transportation, it follows that the President may exercise the same power and authority to order the implementation of the Project, which admittedly is one for transportation.

Such authority springs from the President’s power of control over all executive departments as well as the obligation for the faithful execution of the laws under Article VII, Section 17 of the Constitution which provides:

SECTION 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.

This constitutional provision is echoed in Section 1, Book III of the Administrative Code of 1987. Notably, Section 38, Chapter 37, Book IV of the same Code defines the President’s power of supervision and control over the executive departments, viz:

SECTION 38. Definition of Administrative Relationships. — Unless otherwise expressly stated in the Code or in other laws defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as follows:

(1) Supervision and Control. — Supervision and control shall include authority to act directlywhenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies the word "control" shall encompass supervision and control as defined in this paragraph. x x x (Emphasis and underscoring supplied)

Thus, whenever a specific function is entrusted by law or regulation to a subordinate, the President may act directly or merely direct the performance of a duty.34

Respecting the President’s authority to order the implementation of the Project in the exercise of the police power of the State, suffice it to stress that the powers vested in the DOTC Secretary to establish and administer comprehensive and integrated programs for transportation and communications and to issue orders, rules and regulations to implement such mandate (which, as previously discussed, may also be exercised by the President) have been so delegated for the good and welfare of the people. Hence, these powers partake of the nature of police power.

Police power is the plenary power vested in the legislature to make, ordain, and establish wholesome and reasonable laws, statutes and ordinances, not repugnant to the Constitution, for the good and welfare of the people.35 This power to prescribe regulations to promote the health, morals, education, good order or safety, and general welfare of the people flows from the recognition that salus populi est suprema lex ─ the welfare of the people is the supreme law.

While police power rests primarily with the legislature, such power may be delegated, as it is in fact increasingly being delegated.36 By virtue of a valid delegation, the power may be exercised by the President and administrative boards37 as well as by the lawmaking bodies of municipal corporations or local governments under an express delegation by the Local Government Code of 1991.38

The authority of the President to order the implementation of the Project notwithstanding, the designation of the MMDA as the implementing agency for the Project may not be sustained. It is ultra vires, there being no legal basis therefor.

It bears stressing that under the provisions of E.O. No. 125, as amended, it is the DOTC, and not the MMDA, which is authorized to establish and implement a project such as the one subject of the cases at bar. Thus, the President, although authorized to establish or cause the implementation of the Project, must exercise the authority through the instrumentality of the DOTC which, by law, is the primary implementing and administrative entity in the promotion, development and regulation of networks of transportation, and the one so authorized to establish and implement a project such as the Project in question.

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By designating the MMDA as the implementing agency of the Project, the President clearly overstepped the limits of the authority conferred by law, rendering E.O. No. 179 ultra vires.

In another vein, the validity of the designation of MMDA flies in the absence of a specific grant of authority to it under R.A. No. 7924.

To recall, R.A. No. 7924 declared the Metropolitan Manila area39 as a "special development and administrative region" and placed the administration of "metro-wide" basic services affecting the region under the MMDA.

Section 2 of R.A. No. 7924 specifically authorizes the MMDA to perform "planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services," including transport and traffic management.40 Section 5 of the same law enumerates the powers and functions of the MMDA as follows:

(a) Formulate, coordinate and regulate the implementation of medium and long-term plans and programs for the delivery of metro-wide services, land use and physical development within Metropolitan Manila, consistent with national development objectives and priorities;

(b) Prepare, coordinate and regulate the implementation of medium-term investment programs for metro-wide services which shall indicate sources and uses of funds for priority programs and projects, and which shall include the packaging of projects and presentation to funding institutions;

(c) Undertake and manage on its own metro-wide programs and projects for the delivery of specific services under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate project management offices;

(d) Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila; identify bottlenecks and adopt solutions to problems of implementation;

(e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management, specifically pertaining to enforcement, engineering and education. Upon request, it shall be extended assistance and cooperation, including but not limited to, assignment of personnel, by all other government agencies and offices concerned;

(f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or non-moving in nature, and confiscate and suspend or revoke drivers’ licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and

(g) Perform other related functions required to achieve the objectives of the MMDA, including the undertaking of delivery of basic services to the local government units, when deemed necessary subject to prior coordination with and consent of the local government unit concerned." (Emphasis and underscoring supplied)

The scope of the function of MMDA as an administrative, coordinating and policy-setting body has been settled inMetropolitan Manila Development Authority (MMDA) v. Bel-Air Village Association, Inc.41 In that case, the Court stressed:

Clearly, the scope of the MMDA’s function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use

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of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is expressly authorized to "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations.

It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council to ‘enact ordinances, approve resolutions and appropriate funds for the general welfare’ of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a ‘development authority.’ It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself, viz:

‘SECTION 2. Creation of the Metropolitan Manila Development Authority. — . . .

The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters.’42 (Emphasis and underscoring supplied)

In light of the administrative nature of its powers and functions, the MMDA is devoid of authority to implement the Project as envisioned by the E.O; hence, it could not have been validly designated by the President to undertake the Project. It follows that the MMDA cannot validly order the elimination of respondents’ terminals.

Even the MMDA’s claimed authority under the police power must necessarily fail in consonance with the above-quoted ruling in MMDA v. Bel-Air Village Association, Inc. and this Court’s subsequent ruling in Metropolitan Manila Development Authority v. Garin43 that the MMDA is not vested with police power.

Even assuming arguendo that police power was delegated to the MMDA, its exercise of such power does not satisfy the two tests of a valid police power measure, viz: (1) the interest of the public generally, as distinguished from that of a particular class, requires its exercise; and (2) the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.44 Stated differently, the police power legislation must be firmly grounded on public interest and welfare and a reasonable relation must exist between the purposes and the means.

As early as Calalang v. Williams,45 this Court recognized that traffic congestion is a public, not merely a private, concern. The Court therein held that public welfare underlies the contested statute authorizing the Director of Public Works to promulgate rules and regulations to regulate and control traffic on national roads.

Likewise, in Luque v. Villegas,46 this Court emphasized that public welfare lies at the bottom of any regulatory measure designed "to relieve congestion of traffic, which is, to say the least, a menace to public safety."47 As such, measures calculated to promote the safety and convenience of the people using the thoroughfares by the regulation of vehicular traffic present a proper subject for the exercise of police power.

Notably, the parties herein concede that traffic congestion is a public concern that needs to be addressed immediately. Indeed, the E.O. was issued due to the felt need to address the worsening traffic congestion in Metro Manila which, the MMDA so determined, is caused by the increasing volume of buses plying the major thoroughfares and the inefficient connectivity of existing transport systems. It is thus beyond cavil that the motivating force behind the issuance of the E.O. is the interest of the public in general.

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Are the means employed appropriate and reasonably necessary for the accomplishment of the purpose. Are they not duly oppressive?

With the avowed objective of decongesting traffic in Metro Manila, the E.O. seeks to "eliminate[e] the bus terminals now located along major Metro Manila thoroughfares and provid[e] more convenient access to the mass transport system to the commuting public through the provision of mass transport terminal facilities x x x."48 Common carriers with terminals along the major thoroughfares of Metro Manila would thus be compelled to close down their existing bus terminals and use the MMDA-designated common parking areas.

In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.,49 two city ordinances were passed by the Sangguniang Panlungsod of Lucena, directing public utility vehicles to unload and load passengers at the Lucena Grand Central Terminal, which was given the exclusive franchise to operate a single common terminal. Declaring that no other terminals shall be situated, constructed, maintained or established inside or within the city of Lucena, thesanggunian declared as inoperable all temporary terminals therein.

The ordinances were challenged before this Court for being unconstitutional on the ground that, inter alia, the measures constituted an invalid exercise of police power, an undue taking of private property, and a violation of the constitutional prohibition against monopolies.

Citing De la Cruz v. Paras50 and Lupangco v. Court of Appeals,51 this Court held that the assailed ordinances were characterized by overbreadth, as they went beyond what was reasonably necessary to solve the traffic problem in the city. And it found that the compulsory use of the Lucena Grand Terminal was unduly oppressive because it would subject its users to fees, rentals and charges.

The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights.

A due deference to the rights of the individual thus requires a more careful formulation of solutions to societal problems.

From the memorandum filed before this Court by petitioner, it is gathered that the Sangguniang Panlungsod had identified the cause of traffic congestion to be the indiscriminate loading and unloading of passengers by buses on the streets of the city proper, hence, the conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the city streets.

Bus terminals per se do not, however, impede or help impede the flow of traffic. How the outright proscription against the existence of all terminals, apart from that franchised to petitioner, can be considered as reasonably necessary to solve the traffic problem, this Court has not been enlightened. If terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the streets instead of inside the terminals, then reasonable specifications for the size of terminals could be instituted, with permits to operate the same denied those which are unable to meet the specifications.

In the subject ordinances, however, the scope of the proscription against the maintenance of terminals is so broad that even entities which might be able to provide facilities better than the franchised terminal are barred from operating at all. (Emphasis and underscoring supplied)

As in Lucena, this Court fails to see how the prohibition against the existence of respondents’ terminals can be considered a reasonable necessity to ease traffic congestion in the metropolis. On the contrary, the elimination of respondents’ bus terminals brings forth the distinct possibility and the equally harrowing reality of traffic congestion in the common parking areas, a case of transference from one site to another.

Less intrusive measures such as curbing the proliferation of "colorum" buses, vans and taxis entering Metro Manila and using the streets for parking and passenger pick-up points, as respondents suggest, might even be more effective in easing the traffic situation. So would the strict enforcement of traffic rules and the removal of obstructions from major thoroughfares.

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As to the alleged confiscatory character of the E.O., it need only to be stated that respondents’ certificates of public convenience confer no property right, and are mere licenses or privileges.52 As such, these must yield to legislation safeguarding the interest of the people.

Even then, for reasons which bear reiteration, the MMDA cannot order the closure of respondents’ terminals not only because no authority to implement the Project has been granted nor legislative or police power been delegated to it, but also because the elimination of the terminals does not satisfy the standards of a valid police power measure.

Finally, an order for the closure of respondents’ terminals is not in line with the provisions of the Public Service Act.

Paragraph (a), Section 13 of Chapter II of the Public Service Act (now Section 5 of Executive Order No. 202, creating the Land Transportation Franchising and Regulatory Board or LFTRB) vested the Public Service Commission (PSC, now the LTFRB) with "x x x jurisdiction, supervision and control over all public services and their franchises, equipment and other properties x x x."

Consonant with such grant of authority, the PSC was empowered to "impose such conditions as to construction, equipment, maintenance, service, or operation as the public interests and convenience may reasonably require"53 in approving any franchise or privilege.

Further, Section 16 (g) and (h) of the Public Service Act54 provided that the Commission shall have the power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary:

(g) To compel any public service to furnish safe, adequate, and proper service as regards the manner of furnishing the same as well as the maintenance of the necessary material and equipment.

(h) To require any public service to establish, construct, maintain, and operate any reasonable extension of its existing facilities, where in the judgment of said Commission, such extension is reasonable and practicable and will furnish sufficient business to justify the construction and maintenance of the same and when the financial condition of the said public service reasonably warrants the original expenditure required in making and operating such extension.(Emphasis and underscoring supplied)

The establishment, as well as the maintenance of vehicle parking areas or passenger terminals, is generally considered a necessary service to be provided by provincial bus operators like respondents, hence, the investments they have poured into the acquisition or lease of suitable terminal sites. Eliminating the terminals would thus run counter to the provisions of the Public Service Act.

This Court commiserates with the MMDA for the roadblocks thrown in the way of its efforts at solving the pestering problem of traffic congestion in Metro Manila. These efforts are commendable, to say the least, in the face of the abominable traffic situation of our roads day in and day out. This Court can only interpret, not change, the law, however. It needs only to be reiterated that it is the DOTC ─ as the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity to promote, develop and regulate networks of transportation and communications ─ which has the power to establish and administer a transportation project like the Project subject of the case at bar.

No matter how noble the intentions of the MMDA may be then, any plan, strategy or project which it is not authorized to implement cannot pass muster.

WHEREFORE, the Petition is, in light of the foregoing disquisition, DENIED. E.O. No. 179 is declared NULL and VOID for being ultra vires.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

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Footnotes

1 Luque v. Villegas, G.R. No. L-22545, November 28, 1969, 30 SCRA 408, 422.

2 Rollo, pp. 8-12.

3 Id. at 13.

4 Rollo, pp. 60-61.

5 4th Whereas Clause.

6 5th Whereas clause.

7 Rollo, pp. 194-195.

8 5th and 6th Whereas Clauses of MMDA Resolution No. 03-07, series of 2003. These clauses read:

WHEREAS, there is a need to remove the bus terminals located along major thoroughfares of Metro Manila and an urgent need to integrate the different transport modes namely the buses, the rail-based systems of the LRT, MRT and PNR in order to decongest traffic and ensure efficient travel and comfort to the commuters;

WHEREAS, the Greater Manila Mass Transport System Project aims to develop five (5) interim intermodal mass transport terminals to integrate the different transport modes to serve the commuting public in the northwest, north, east, south and southwest of Metro Manila.

9 Viron’s authorized routes are from Metro Manila to Pangasinan, Nueva Ecija, Ilocos Sur and Abra and vice versa.

10 Rollo, pp. 64-75.

11 Branch 26.

12 Rollo, pp. 67-68; pp. 4-5 of Viron’s Petition.

13 Rollo, p. 30.

14 Id. at 149-162.

15 Id. at 153; page 5 of Mencorp’s Petition.

16 Id. at 205-207.

17 Id. at 219-221.

18 Id. at 317-323.

19 Id. at 35.

20 Id. at 125-130; dated May 15, 2003.

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21 Id. at 200-204.

22 Id. at 309-316.

23 Id. at 64-75 and 149-162; Viron’s petition dated February 21, 2003 and Mencorp’s petition dated March 25, 2003.

24 Id. at 135-148 and 222-249; Viron’s Reply dated June 17, 2003 and Viron’s Position Paper of March 16, 2004.

25 Republic v. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA 114, 118; Board of Optometry v. Colet, 328 Phil. 1187, 1205 (1996); Macasiano v. National Housing Authority, G.R. No. 107921, July 1, 1993, 224 SCRA 236, 243.

26 International Hardwood and Veneer Company of the Philippines v. University of the Philippines, G.R. No. 521518, August 13, 1991, 200 SCRA 554, 569.

27 International Hardwood and Veneer Company of the Philippines v. University of the Philippines, supra.

28 Supra note 20 at 126; paragraph 11 thereof.

29 Supra note 22 at 312.

30 Section 1 of Rule 63 of the Rules of Court provides:

SECTION 1. Who may file petition. – Any person interested under a deed, will, contract, or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. (Emphasis supplied)

31 People v. Vera, 65 Phil. 56, 89 (1937).

32 Dated January 30, 1987.

33 "Amending Executive Order No. 125, Entitled ‘Reorganizing the Ministry of Transportation and Communications, Defining its Powers and Functions, and For Other Purposes,’" dated April 13, 1987.

34 Chavez v. Romulo, G.R. No. 157036, June 9, 2004, 431 SCRA 534, 555.

35 Binay v. Domingo, G.R. No. 92389, September 11, 1991, 201 SCRA508, 514; Presidential Commission on Good Government v. Peña, G.R. No. L-77663, April 12, 1988, 159 SCRA 556, 574; Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708.

36 In the early case of Pangasinan Transportation Co., Inc. v. The Public Service Commission (70 Phil. 221,229 [1940]), this Court observed that "with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater power by the legislature, and toward the approval of the practice by the courts." (Underscoring supplied) Vide also Eastern Shipping Lines, Inc. v. Philippine Overseas Employment Administration, G.R. No. L-76633, October 18, 1988, 166 SCRA 533, 544.

37 Abakada Guro Party List v. Ermita, G.R. No. 168056, September 1, 2005, 469 SCRA 1, 117; Metropolitan Manila Development Authority (MMDA) v. Bel-Air Village Association, 385 Phil. 586, 601.

38 SEC. 16. General Welfare. ─ Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient

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and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

39 Metropolitan or Metro Manila is a body composed of the local government units of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Piñas, Marikina, Parañaque, Valenzuela, Malabon, Navotas, Pateros, San Juan and Taguig. (Sec. 1 of R.A. 7924)

40 Section 3 of R.A. No. 7924 provides the scope of MMDA services :

SECTION 3. Scope of MMDA Services. — Metro-wide services under the jurisdiction of the MMDA are those services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units (LGUs) comprising Metropolitan Manila. These services shall include:

(a) Development planning which includes the preparation of medium and long-term development plans; the development, evaluation and packaging of projects; investments programming; and coordination and monitoring of plan, program and project implementation.

(b) Transport and traffic management which include the formulation, coordination, and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the institution of a system to regulate road users; administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila.

(c) Solid waste disposal and management which include formulation and implementation of policies, standards, programs and projects for proper and sanitary waste disposal. It shall likewise include the establishment and operation of sanitary land fill and related facilities and the implementation of other alternative programs intended to reduce, reuse and recycle solid waste.

(d) Flood control and sewerage management which include the formulation and implementation of policies, standards, programs and projects for an integrated flood control, drainage and sewerage system.

(e) Urban renewal, zoning, and land use planning, and shelter services which include the formulation, adoption and implementation of policies, standards, rules and regulations, programs and projects to rationalize and optimize urban land use and provide direction to urban growth and expansion, the rehabilitation and development of slum and blighted areas, the development of shelter and housing facilities and the provision of necessary social services thereof.

(f) Health and sanitation, urban protection and pollution control which include the formulation and implementation of policies, rules and regulations, standards, programs and projects for the promotion and safeguarding of the health and sanitation of the region and for the enhancement of ecological balance and the prevention, control and abatement of environmental pollution.

(g) Public safety which includes the formulation and implementation of programs and policies and procedures to achieve public safety, especially preparedness for preventive or rescue operations during times of calamities and disasters such as conflagrations, earthquakes, flood and tidal waves, and coordination and mobilization of resources and the implementation of contingency plans for the rehabilitation and relief operations in coordination with national agencies concerned.

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41 Metropolitan Manila Development Authority (MMDA) v. Bel-Air Village Association, supra note 37.

42 Supra at 607-608.

43 G.R. No. 130230, April 15, 2005, 456 SCRA 176, 185.

44 Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., G.R. No. 148339, February 23, 2005, 452 SCRA 174, 185; Chavez v. Romulo, supra note 34 at 563; Balacuit v. CFI of Agusan del Norte, G.R. No. L-38429, June 30, 1988, 163 SCRA 182, 191.

45 70 Phil. 726, 733 (1940).

46 Supra note 1.

47 Supra at 423.

48 5th Whereas Clause.

49 Supra note 44.

50 G.R. No. L-42571-72, July 25, 1983, 123 SCRA 569. In this case, the Court declared as unconstitutional an ordinance passed by the Municipality of Bocaue, Bulacan, which prohibited the operation of all night clubs, cabarets and dance halls within its jurisdiction for the protection of public morals. Stating that the ordinance on its face was overbroad, the Court held that the purpose sought to be achieved could have been attained by reasonable restrictions rather than an absolute prohibition.

51 G.R. No. L-77372, April 29, 1988, 160 SCRA 848. The case involved a resolution issued by the Professional Regulation Commission, which prohibited examinees from attending review classes and receiving handout materials, tips, and the like three days before the date of examination in order to preserve the integrity and purity of the licensure examinations in accountancy. The measure was declared by this Court not only to be unreasonable and violative of academic freedom, but also to be more sweeping than what was necessary.

52 Luque v. Villegas, supra note 1 at 418.

53 Commonwealth Act No. 146, Chapter II, Section 16 (b).

54 The present provision of Section 5(k) of E.O. No. 202 reads:

k. To formulate, promulgate, administer, implement and enforce rules and regulations on land transportation public utilities, standards of measurements and/or design, and rules and regulations requiring operators of any public land transportation service to equip, install and provide in their utilities and in their stations such devices, equipment facilities and operating procedures and techniques as may promote safety, protection, comfort and convenience to persons and property in their charges as well as the safety of persons and property within their areas of operations;