EN BANC

[G.R. No. 137718.  July 27, 1999]

REYNALDO O. MALONZO, in his capacity as City Mayor of Caloocan City, OSCAR MALAPITAN, in his capacity as Vice-Mayor of Caloocan City, CHITO ABEL, BENJAMIN MANLAPIG, EDGAR ERICE, DENNIS PADILLA, ZALDY DOLARTE, LUIS TITO VARELA, SUSAN PUNZALAN, HENRY CAMAYO, in their capacities as Members of the Sangguniang Panlungsod of Caloocan City, petitioners, vs. HON. RONALDO B. ZAMORA, in his capacity as Executive Secretary, HON. RONALDO V. PUNO, in his capacity as Under-secretary of the Department of Interior and Local Government, and EDUARDO TIBOR, respondents.

D E C I S I O N

ROMERO, J.:

Consistent with the doctrine that local government does not mean the creation of imperium in imperii or a state within a State, the Constitution has vested the President of the Philippines the power of general supervision over local government units. Such grant of power includes the power of discipline over local officials, keeping them accountable to the public, and seeing to it that their acts are kept within the bounds of law.  Needless to say, this awesome supervisory power, however, must be exercised judiciously and with utmost circumspection so as not to transgress the avowed constitutional policy of local autonomy.  As the facts unfold, the issue that obtrudes in our minds is:  Should the national government be too strong vis-à-vis its local counterpart to the point of subverting the principle of local autonomy enshrined and zealously protected under the Constitution?  It is in this light that the instant case shall now be resolved.

During the incumbency of then Macario A Asistio, Jr., the Sangguniang Panlungsod of Caloocan City passed Ordinance No. 0168, S. 1994, authorizing the City Mayor to initiate proceedings for the expropriation of Lot 26 of the Maysilo Estate registered in the name of CLT Relaty Development Corporation (CLT).  The lot, covering an area of 799,955 square meters, was intended for low-cost housing and the construction of an integrated bus terminal, parks and playgrounds, and related support facilities and utilities.  For this purpose, the said ordinance appropriated the amount of P35,997,975.00, representing 15% of the fair market value of Lot 26 that would be required of the city government as a deposit prior to entry into the premises to be expropriated.

It turned out, however, that the Maysilo Estate straddled the City of Caloocan and the Municipality of Malabon, prompting CLT to file a special civil action  for Interpleader with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction on August 6, 1997, before the Caloocan City Regional Trial Court, branch 124.  The complaint specifically sought to restrain the defendants City of Caloocan and Municipality of Malabon from assessing and collecting real property taxes from CLT and to interplead and litigate among themselves their conflicting rights to claim such taxes.

On December 11, 1997, the Caloocan City Sangguniang Panlungsod, under the stewardship of incumbent Mayor Reynaldo O. Malonzo, enacted Ordinance No. 0246, S.  1997, entitled “AN ORDINANCE AMENDING AND SUPPLEMENTING THE PROVISIONS OF CITY ORDINANCE NO. 0168, SERIES OF 1994 AND FOR OTHER RELATED PURPOSES.” Under this ordinance, certain amendments were introduced, foremost of which was the city council’s decision to increase the appropriated amount of P35,997,975.00 in the previous ordinance to P39,352,047.75, taking into account the subject property’s current fair market value.

After failing to conclude a voluntary sale of Lot 26, the city government commenced on March 23, 1998, a suit for eminent domain against CLT before the Caloocan City Regional Trial Court, Branch 126, to implement the subject property’s expropriation.  Apparently disturbed by this development, the Caloocan City Legal Officer informed the City Mayor through a letter-memorandum dated April 7, 1998, of the pending interpleader case covering Lot 26 and that the same was “a ‘Prejudicial Question’ which must be resolved first by the proper court in order not to put the expropriation proceedings in question.”  He therefore recommended that “pending the final determination and resolution of the court on the issue (territorial jurisdiction) raised in Civil Case No. C-18019 before Branch 124 of the Regional Trial Court of Caloocan City, the expropriation of the subject property be cancelled and/or abandoned.”

In the meantime, after the successful re-election bid of Malonzo, Vice-Mayor Oscar G. Malapitan wrote him a letter dated June 4, 1998, requesting the immediate repair and renovation of the offices of the incoming councilors, as well as the hiring of additional personnel and the retention of those currently employed in the offices of the councilors.

Malonzo acted on said letter and endorsed the same to the Office of the City Treasurer.  The latter in turn manifested through a memorandumdated June 26, 1998, that “since the expropriation of CLT Property is discontinued, the appropriation for expropriation of FIFTY MILLION PESOS (P50M) can be reverted for use in a supplemental budget” stating further that he certifies “(F)or its reversion since it is not yet obligated, and for its availability for re-appropriation in a supplemental budget.”

Pursuant to the treasurer’s certification on the availability of funds to accommodate Vice-Mayor Malapitan’s request, Malonzo subsequently endorsed to the Sangguniang Panlungsod Supplemental Budget No. 01, Series of 1998, appropriating the amount of P39,343,028.00.  The city council acted favorably on Malonzo’s endorsement and, thus, passed Ordinance No. 0254, S. 1998 entitled “AN ORDINANCE PROVIDING PAYMENTS FOR APPROVED ITEMS IN THE SUPPLEMENTAL BUDGET NO. 1 CALENDAR YEAR 1998 AND APPROPRIATING CORRESPONDING AMOUNT WHICH SHALL BE TAKEN FROM THE GENERAL FUND (REVERSION OF APPROPRIATION-EXPROPRIATION OF PROPERTIES).”

Alleging, however, that petitioners conspired and confederated in willfully violating certain provisions of the Local Government Code of 1991 (hereinafter the "Code") through the passage of Ordinance No. 0254, S. 1998, a certain Eduardo Tibor, by himself and as a taxpayer, filed on July 15, 1998, an administrative complaint for Dishonesty, Misconduct in Office, and Abuse of Authority against petitioners before the Office of the President (OP).

After the complaint was given due course, petitioners filed on October 15, 1998 their Consolidated Answer, pointing out, among other things, that said complaint constituted collateral attack of a validly enacted ordinance whose validity should only be determined in a judicial forum.  They also claimed that the assailed ordinance was enacted strictly in accordance with Article 417 of the Rules and Regulations Implementing the Local Government Code of 1991 (hereinafter, the “Rules”), as amended by Administrative Order No. 47 dated April 12, 1993.

After several exchanges of pleadings, petitioners, citing Section 326 of the Code and Article 422, Rule XXXIV of the Rules, filed on February 7, 1999, a Motion to Refer the Case to the Department of Budget and Management (DBM) on the ground that the DBM has been granted power under the Code to review ordinances authorizing the annual or supplemental appropriations of, among other things, highly urbanized cities such as Caloocan City.  This motion, however, remained unresolved.

Two days later, after learning that a certain Teotimo de Guzman Gajudo had filed an action for the Decalaration of Nullity of Ordinance No. 0254, Series of 1998, before the Caloocan City Regional Trial Court, petitioners filed with the OP a Manifestation and Very Urgent Motion to Suspend Proceedings on the ground that the determination of the validity of said ordinance was a prejudicial question.  Likewise, this motion was not acted upon by the OP.

Thus, without resolving the foregoing motions of petitioners, the OP rendered its assailed judgment on March 15, 1999, the decretal portion of which reads:

“WHEREFORE, herein respondents Mayor Reynaldo Malonzo, Vice-mayor Oscar G. Malapitan and Councilors Chito Abel, Benjamin Manlapig, Edgar Erice, Dennis Padilla, Zaldy Dolatre, Susana Punzalan, Henry Camayo, and Luis Tito Varela, all of Caloocan City, are hereby adjudged guilty of misconduct and each is meted the penalty of SUSPENSION from office for a period of three (3) months without pay to commence upon receipt of this Decision.  This Decision is immediately executory.

SO ORDERED.”

On even date, the Department of Interior and Local Government (DILG) administered Macario E. Asistio III’s oath of office as Acting Mayor of Caloocan City.

Without moving for reconsideration of the OP’s decision, petitioners filed before this Court on March 22, 1999, the instant Petition for Certiorari and Prohibition With Application for Preliminary Injunction and Prayer for Restraining Order, With alternative Prayer for Preliminary Mandatory Injunction.

In a resolution of this Court dated April 5, 1999, we resolved to set the case for oral argument on April 20, 1999 while at the same time directed the parties to maintain the status quo before March 15, 1999.

To support their petition, petitioners contend that on account of the filing of an action for interpleader by CLT, the expropriation proceedings had to be suspended pending final resolution of the boundary dispute between Malabon and Caloocan City.  Due to his dispute, the P50

million appropriation for the expropriation of properties under current operating expenses had not been obligated and no security deposit was forthcoming.  It was not at the time a continuing appropriation.  This unavoidable discontinuance of the purpose for which the appropriation was made effectively converted the earlier expropriation of P39,352,047.75 into savings as defined by law.

They argue further that there is no truth in the allegation that Ordinance No. 0254, S. 1998 was passed without complying with Sections 50 and 52 of the Local Government Code requiring that on the first regular session following the election of its members and within 90 days thereafter, the Sanggunian concerned shall adopt or update its existing rules of procedure.  According to them, the minutes of the session held on July 2, 1998 would reveal that the matter of adoption or updating of the house rules was taken up and that the council arrived at a decision to create an ad hoc committee to study the rules. Moreover, even if the Sanggunian failed to approve the new rules of procedure for the ensuing year, the rules which were applied in the previous year shall be deemed in force and effect until a new ones are adopted.

With respect to the OP’s assumption of jurisdiction, petitioners maintained that the OP effectively arrogated unto itself judicial power when it entertained a collateral attack on the validity of Ordinance No. 0254, S. 1998.  Furthermore, primary jurisdiction over the administrative complaint of Tibor should have pertained to the Office of the Ombudsman, as prescribed by Article XI, Sections 13 and 15 of the Constitution.  They also asserted that the declaration in the OP’s decision to the effect that Ordinance No. 0254, S. 1998 was irregularly passed constituted a usurpation of the DBM’s power of review over ordinances authorizing annual or supplemental appropriations of, among others, highly-urbanized cities like Caloocan City as provided under Section 326 of the Local Government Code of 1991.  In  light of said statutory provision, petitioners opined that respondents should have deferred passing upon the validity of the subject ordinance until after the DBM shall have made are view thereof.

Finally, petitioners complained that respondents violated the right to equal protection of the laws when Vice-Mayor Oscar Malapitan was placed in the same class as the rest of the councilors when in truth and in fact, as Presiding Officer of the council, he did not even vote nor participate in the deliberations.  The violation of such right, according to petitioners, made the OP’s decision a nullity.  They concluded that the administrative complaint was anathema to the State’s avowed policy of local autonomy as the threat of harassment suits could become a sword of Damocles hanging over the heads of local officials.

Contending that the OP decison judiciously applied existing laws and jurisprudence under the facts obtaining in this case, the Office of the Solicitor General (OSG) disputed petitioners’ claims contending that the appropriation of P39,352,047.75 contained in an earlier ordinance (Ord. NO. 0246 S. 1997) for the expropriation of Lot 26 of the Maysilo Estate was a capital outlay as defined under Article 306 (d) of the Code and not current operating expenditures.  Since it was a capital outlay, the same shall continue and remain valid until fully spent or the project is completed, as provided under Section 322 of the Code.

The OSG asserted further that the filing on August 6, 1997 of an interpleader case by CLT which owns Lot 26 should not be considered as an unavoidable discontinuance that automatically

converted the appropriated amount into savings which could be used for supplemental budget.  Since the said amount was not transformed into savings and, hence, no funds were actually available, then the passage of Ordinance No. 0254, S. 1998 which realigned the said amount on a supplemental budget violated Section 321 of the Code requiring an ordinance providing for a supplemental budget to be supported by funds actually available as certified by the local treasurer or by new revenue sources.

Petitioners were likewise faulted for violating Sections 50 and 52 of the Code requiring the Sangguniang Panlungsod to adopt or update its existing rules of procedure within the first 90 days following the election of its members.  The Sanggunian allegedly conducted three readings of Ordinance No. 0254, S. 1998 in one day and on the first day of its session (July 2, 1998) without the Sanggunian having first organized itself and adopted its rules of procedure.  It was only on July 23, 1998 that the Sanggunian adopted its internal rules of procedure.

As regard petitioners’ contention that the administrative complaint of Tibor should have been filed with the Office of the Ombudsman instead of the OP, the OSG pointed out that under Section 60 and 61 of the Code, the OP is vested with jurisdiction to discipline, remove or suspend a local elective official for, among other things, misconduct in office.  The Ombudsman has never been vested with original and exclusive jurisdiction regarding administrative complaints involving government officials.

Finally, the OSG sought to dismiss the petition on the grounds of non-exhaustion of administrative remedies before the OP and for failure to follow Section 4, Rule 65 of the 1997 Rules of Civil Procedure which prescribes that “if it [the subject of the petition] involves the acts or omissions of a quasi-judicial agency, and unless provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals.”

The petition is impressed with merit.

Preliminarily, we find a need to resolve a couple of procedural issues which have a bearing on the propriety of this Court’s action on the petition, to wit: (1) whether the Supreme Court is the proper forum which can take cognizance of this instant petition assailing the decision of the OP, and (2) whether the Supreme Court may entertain the instant petition despite the absence of a prior motion for reconsideration filed by petitioners with the OP.

After a very careful and meticulous review of the parties’ respective positions on these matters, we find that this Court possesses the requisite power to assume jurisdiction and rule on the petition.

It is not the first time that similar procedural challenges have been brought before this Court.  Just recently, in the case of Fortich, et al. v. Corona, et al., we again had an occasion to clarify our position on these questions.  By way of backgrounder, said case involved the so-called “Win-Win Resolution” of the OP which modified tha approval of the conversion to agro-industrial area of a 144-hectare land located in San Vicente, Sumilao, Bukidnon.  As in this case, the OSG opposed said petition on the ground that the same should have been filed with the Court of Appeals since what was sought to be reviewed was the OP’s decision.  Facing said issues

squarely, we explained that we did not find any reason why such petition should not have been filed in this Court, holding that:

“But the Supreme Court has the full discretionary power to take cognizance of the petition filed directly to it if compelling reasons, or the nature and importance of the issues raised, warrant.  This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et al., Torres vs. Arranz, Bercero vs. De Guzman, and Advincula vs. Legaspi, et al.  As we have further stated in Cuaresma:

‘x x x.  A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition.  This is established policy.  It is a policy that is necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and  to prevent further over-crowding of the Court’s docket.’

Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to avoid future litigations (sic) so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution.  Moreover, as will be discussed later, we find the assailed resolution wholly void and requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money.

That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence.  We reiterate what we said in Piczon v. Court of Appeals:

‘Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice.  Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided.  Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require.  In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case.”’ [Underscoring supplied, citations omitted].

In like manner, it is our considered view now that the instant petition has been properly brought before us in light of the importance of the subject matter and the transcendental nature of the issues raised.  Realignment, as explained in the pleadings, is a common practice borne out of necessity and sanctioned by law.  Just how such a common practice may be carried out within the bounds of law, considering the fact that public funds are at stake, is, we believe, an issue that is not only one of the first impression, but likewise of considerable significance as a guide to local governance.  Furthermore, as will be discussed later, the assailed decision of the OP has been tainted with grave abuse of discretion, thus, requiring the immediate exercise of this Court’s corrective power lest public welfare, more particularly that of the Caloocan City constituents, be jeopardized by a more circumlocutory procedure which respondents are now insisting upon.

With respect to the alleged non-exhaustion of administrative remedies, we do not see the same as a fatal procedural lapse that would prevent us from entertaining the more pressing questions raised in this case.  In any event, jurisprudence is replete with instances instructing us that a motion for reconsideration is neither always a prerequisite nor a hard-and-fast rule to be followed where there are particularly exceptional attendant circumstances such as, in the instant case, patent nullity of the questioned act and the necessity of resolving the issues without further delay.

Having therefore disposed of the procedural questions, we now turn our attention to the more crucial substantive issues, namely:

1.  Whether the Office of the President gravely abused its discretion when it found petitioners guilty of misconduct for the reason that Ordinance No. 0254, Series of 1998, was allegedly tainted with irregularity;

2.  Whether Ordinance No. 0254, Series of 1998, violated Section 326 of the Local Government Code of 1991 on reversion of unexpended balances of appropriations;

3.  Whether Ordinance No. 0254, Series of 1998, complied with Section 321 of the Local Government Code of 1991 requiring that changes in the annual budget should be supported by funds actually available; and

4.  Whether Ordinance No. 0254, Series of 1998, was valid considering that prior to its passage there was as yet no formal adoption of rules of procedure by the Caloocan City Sangguniang Panlungsod.

As stated earlier, the OP found petitioners guilty of misconduct on the ground that they failed to strictly comply with certain provisions of the Code relating to the passage of the ordinance in question.  It  justified its position, thus:

“By respondents (sic) very own admission --- and these facts are a matter of record --- the P39,352,047.75 appropriated in Ordinance 0254 to fund the approved items listed therein was merely a portion of the P50 Million included and appropriated in the 1998 Annual Budget for expropriation purpose and that the judicial action for expropriation --- earlier filed by the city and for which an allocation of P39,352,047.75 out of the P50 Million appropriation for expropriation of properties --- is still pending with the court.  This being so, the amount allocated for the expropriation cannot be reverted or be deemed as savings to serve as funds actually available for the supplemental budget.

It cannot be argued that “the unexpected turn of events” mentioned by the respondents --- referring to the filing by CLT Realty on August 6, 1997 of a complaint against the Municipality of Malabon and the City of Caloocan for interpleader amounts to an unavoidable discontinuance of the expropriation project, and thus effectively converted the earlier expropriation (sic) of P39,352,047.75 into “SAVINGS”.  For one, it was only on March 23, 1998, that the City of Caloocan filed an expropriation case against CLT Realty (docketed as Special Case No. 548 Regional Trial Court, Caloocan City).  If, as respondents argue, the August

6, 1997 interpleader suit amounted to the unavoidable discontinuance of the expropriation project, thus effectively turning the earlier appropriation of P39,352,047.75 into savings, then how explain the March 23, 1998 expropriation case?  For another, the records do not indicate --- not even an allegation to this effect--- that the City of Caloocan has withdrawn the expropriation case aforementioned which is, ordinarily, the legal route taken in the event of abandonment of discontinuance of the expropriation project.  On the contrary, the city government, as indicated in its judicial pleadings that now form part of the records, even sought the issuance of a writ of possession.

In this light, it is all too clear that Ordinance No. 0254 was enacted without funds actually available as required by Section 321 of the Local Government Code of 1991, which pertinently reads ---

x x x                                    x x x                             x x x

The words “actually available” are so clear and certain that interpretation is neither required nor permitted.  The application of this legal standard to the facts of this case compels the conclusion that, there being no reversion, as above-explained, the supplemental budget was not supported by funds actually available, by funds really in the custody or possession of the treasurer.

Stated differently, it may be that the City Treasurer of Caloocan, vis-a-vis Ordinance No. 0254, issued a certificate of availability of funds (Annex “9”, answer).  The issuance, however cannot alter the reality that the funds referred to therein are not funds actually available because they are sourced or are to be sourced from an appropriation for a capital outlay which cannot be validly reverted or “converted into savings,” as respondents put it, on ground of “unavoidable discontinuance of the expropriation project.”

Adding significance to the conclusion reached herein is the fact that the enactment by the respondents of the supplemental budget was clearly tainted with undue haste.  The sangguniang panlungsod conducted the three (3) readings (the 1st the 2nd and 3rd) on the same day, July 2, 1998, its first day of session, adopted it on July 7, 1998, and approved by respondent mayor on the following day, July 8, 1998, without first having itself organized and its rules of procedure adopted and without first electing its officers and chairmen and the members of the different committees in accordance with [the] provisions of the LGC (see Secs. 50 & 52, RA 7162).  This undue haste implies willful failure to respond to or comply with what the law requires which is the essence of bad faith.

x x x                                    x x x                             x x x

We are thus one with the DILG in finding respondents guilty of violating Section 321 in relation to Section 332 of the Local Government Code of 1991.  This violation constitutes misconduct, an offense implying a wrongful intent, an unlawful behavior in relation to the office, one that usually involves a transgression of some established and definite rule of action, more particularly unlawful behavior by the public officer.  [Citations omitted].

We cannot, however, agree with the above disquisition.

The OP’s premise, in our opinion, rests upon an erroneous appreciation of the facts on record.  The OP seems to have been confused as to the figures and amounts actually involved.  A meticulous analysis of the records would show that there is really no basis to support the OP’s contention that the amount of P39,352,047.75 was appropriated under Ordinance No. 0254, S. 1998, since in truth and in fact, what was appropriated in said ordinance was the amount of P39,343,028.00.   The allocation of P39,352,047.75 is to be found in the earlier Ordinance No. 0246, S. 1997 which is a separate and distinct ordinance.  This point of clarification is indeed very critical and must be emphasized at this juncture because any further discussion would have to depend upon the accuracy of the figures and amounts being discussed.  As will be explained below, this faulty appreciation of the facts by the OP caused it to arrive at the wrong conclusion even if it would have correctly interpreted and applied the pertinent statutory provisions.

Section 322 of the Code upon which the OP anchored its opinion that petitioners breached a statutory mandate provides:

SEC 322. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.– Unexepended balances of appropriations authorized in the annual appropriations ordinance shall revert to the unappropriated surplus of the general funds at the end of the fiscal year and shall not thereafter be available for expenditure except by subsequent enactment.  However, appropriations for capital outlays shall continue and remain valid until fully spent, reverted or the project is completed.  Reversions of continuing appropriations shall not be allowed unless obligations therefor have been fully paid or otherwise settled.

Based on the above provision, the OP reached the determination that Ordinance No. 0254, S. 1998 could not have lawfully realigned the amount of P39,352,047.75 which was previously appropriated for the expropriation of Lot 26 of the Maysilo Estate since such appropriation was in the nature of a capital outlay until fully spent, reverted; or the project for which it is earmarked is completed.

The question, however, is not whether the appropriation of P39,352,047.75 could fall under the definitions of continuing appropriation and capital outlays, considering that such amount was not the subject of the realignment made by Ordinance No. 0254, Series of 1998.  Rather, the issue is whether petitioners are liable for their actions in regard to said ordinance which actually realigned a position of the P50 million which was simply denominated in a general manner as “Expropriation of Properties” and classified under “Current Operating Expenditures in the 1998 Annual Budget of Caloocan City.  Clearly, these are two distinct amounts separate from each other.  That this is the case has likewise been clarified in the pleadings and during the oral argument where petitioners adequately explained that the P50 million was NOT appropriated for the purpose of purchasing Lot 26 of the Maysilo Estate but rather for expenses incidental to expropriation such as relocation of squatters, appraissal fee, expenses for publication, mobilization fees, and expenses for preliminary studies. This position appears to us more convincing than that of the interpretation of respondents.  The appropriation of P39,352,047.75 under Ordinance No. 0246, S. 1997 is, we believe, still a subsisting appropriation that has never been lumped together with other funds to arrive at the sum of P50 million allocated in the 1998 budget.  To be sure, denomination of the P50 million amount as “Expropriation of Properties” left much to be desired and would have been confused with the appropriation for expropriation

under Ordinance No. 0246, S, 1997, but had respondents probed deeper into the actual intention for which said amount was allocated, then they would have reached an accurate characterization of the P50 million.

Bearing in mind, therefore, the fact that it is the P50 million which is now being realigned, the next logical question to ask is whether such amount is capable of being lawfully realigned.  To this, we answer in the affirmative.

No less than respondents themselves argued, citing Sections 321 and 322 in relation to Section 306 (d) and (e) of the Code, that realignment shall not be allowed when what is involved are continuing appropriations or capital outlays.  But this argument becomes clearly inapplicable in view of our disquisition above that the realignment being complained of had nothing to do with the P39,352,047.75 appropriation for the purchase of Lot 26 of the Maysilo Estate which is clearly the one that is classifiable as a capital outlay or a continuing appropriation.  The realignment, as we have earlier discussed, pertained to the P50 million which was classified as “Current Operating Expenditures.”  Having been determined as such by the local council upon which legislative discretion is granted, then the statutory proscription does not, therefore, apply and respondents cannot insist that it should.

Moreover, in view of the fact that what is being realigned is the P50 million appropriation which is classified, neither as a capital outlay nor a continuing appropriation, then respondents’ position that Ordinance No. 0254, S. 1998 was enacted without funds actually available and in violation of Section 321 of the Code likewise falls flat on its face.  This is notwithstanding respondents’ assertion that the “unaviodable discontinuance” of the expropriation proceedings for Lot 26 could not have automatically converted the appropriated amount therefor into “savings.”  For one thing, the Code appears silent and respondents themselves have not shown how unexpected balances of appropriations revert to the general fund.  Likewise, it would be pointless to belabor this matter because it has been brought out precisely on the assumption that the amount of P39,352,047.75, has no more leg to stand on, as explained earlier.

As to the alleged violation of Sections 50 and 52 of the Code requiring the adoption of house rules and the organization of the council, we believe that the same hardly merits even cursory consideration.  We cannot infer the mandate of the Code that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules.  All that the law requires is that “on the first regular session … the sanggunian concerned shall adopt or update its existing rules or procedure.” There is nothing in the language thereof that restricts the matters to be taken up during the first regular session merely to the adoption or updating of the house rules.  If it were the intent of Congress to limit the business of the local council to such matters, then it would have done so in clear and unequivocal terms.  But as it is, there is no such intent.

Moreover, adoption or updating of house rules would necessarily entail work beyond the day of the first regular session.  In fact, it took the members of the Sangguniang Panlungsod of Caloocan City until July 23, 1998 to complete the task of adopting their house rules.  Does this mean that prior thereto, the local council’s hands were tied and could not act on any other matter?  That would certainly be absurd for it would result in a hiatus and a paralysis in the local

legislature’s work  which could not have been intended by the law.  Interpretatio talis in ambiguis semper frienda est, ut evitatur inconveniens et absurdum.  Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. We believe that there has been sufficient compliance with the Code when on the first regular session, the Sanggunian took up the matter of adopting a set of house rules as duly evidenced by the “KATITIKAN NG KARANIWANG PULONG NG SANGGUNIANG PANLUNGSOD NA GINANAP NOONG IKA-2 NG HULYO, 1998 SA BAGONG GUSALI NG PAMAHALAANG LUNGSOD NG CALOOCAN” where Item No. 3 thereof specifically mentioned the request for creation of an ad hoc committee to study the existing house rules.

The foregoing explanation leads us to the ineluctable conclusion that, indeed, respondents committed grave abuse of discretion. Not only are their reasoning flawed but are likewise lacking in factual and legal support.  Misconduct, being a grave administrative offense for which petitioners stood charged, cannot be treated cavalierly.  There must be clear and convincing proof on record that petitioners were motivated by wrongful intent, committed unlawful behavior in relation to their respective offices, or transgressed some established and definite rules of action. But as we have stressed above, petitioners were acting within legal bounds.  Respondents seem to have turned a blind eye or simply refused to consider facts that would have enlightened them and exculpated herein petitioners to such an extent that they arrived at their erroneous conclusion.  In view hereof, this Court is justified in striking down the impugned act of the Office of the President.

Two motions filed in accordance with procedural rules were ignored by the Office of the President and left unresolved:  first, the February 7, 1999 Motion to Refer the Case to the DBM and second, the Manifestation and Very Urgent Motion to Suspend Proceedings on the ground that the determination of the validity of said ordinance was a prejudicial question.  Motions need not necessarily grant what movant is asking for, but they must be acknowledged and resolved.  The Office of the President, being the powerful office that law and tradition have endowed it, needs no mighty blows on the anvil of authority to ensure obedience to its pronouncements.  It would be more in keeping with its exalted stature if its actions could safeguard the very freedoms so sedulously nurtured by the people.  Even what it may deem minor lapses, emanating as it does from such an exalted office, should not be allowed to go unchecked lest our democratic institutions be gradually eroded.

WHEREFORE, the instant petition is hereby GRANTED.  The assailed decision of the Office of the President in O.P. Case No. 98-H-8520 dated March 15, 1999 is ANNULLED and SET ASIDE for having been rendered with grave abuse of discretion amounting to lack and/or excess of jurisdiction.  Consequently, respondents, their subordinates, agents, representatives, and successors-in-interest are permanently enjoined from enforcing or causing the execution in any manner of the aforesaid decision against herein petitioners.

No pronouncement as to costs.

SO ORDERED.

THIRD DIVISION

[G.R. No. 121215.  November 13, 1997]

MAYOR OSCAR DE LOS REYES, petitioner, vs. SANDIGANBAYAN, THIRD DIVISION, and the PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

ROMERO, J.:

The significance of the minutes taken during the session of a local legislative assembly is the determinant issue in this present petition.

Petitioner, along with two others, was charged with the crime of falsification of a public document, specifically Resolution No. 57-S-92 dated July 27, 1992 of the Municipal Council of Mariveles, Bataan.  The complaint alleged that the resolution, appropriating the amount of P8,500.00 for the payment of the terminal leave of two municipal employees, was anomalous for not having been approved by the said Council, as the minutes of the proceedings therein made no reference to the supposed approval thereof.  It contended that its seeming passage was carried out by petitioner in connivance with Sangguniang Bayan (SB) Member Jesse Concepcion and SB Secretary Antonio Zurita.

After preliminary investigation, the deputized prosecutor of Balanga, Bataan recommended the filing of an information for Falsification of Public Document against petitioner and Concepcion, excluding Zurita who died during the pendency hereof.

On September 21, 1994, the information filed before the Sandiganbayan reads as follows:

“That on or about July 27, 1992 or sometimes (sic) prior or subsequent thereto, in Mariveles, Bataan, Philippines, and within the jurisdiction of this Honorable Court, OSCAR DELOS REYES and JESSE CONCEPCION, both public officers, being Municipal Mayor of Mariveles, Bataan and Member of the Sangguniang Bayan of Mariveles, Bataan, passed and approved the said resolution appropriating the amount of  P8,500.00 for payment of the terminal leave of two (2) employees of the municipality, when in truth and in fact as both accused knew well  the same is false and incorrect as the said resolution was not approved by the aforesaid Sangguniang Bayan for which both accused has the obligation to disclose the truth.

CONTRARY TO LAW.

On October 14, 1994, prior to his arraignment, petitioner filed a Motion for Reinvestigation arguing, among other things, “that the Ombudsman previously dismissed a similar complaint against him involving the same factual setting.”

Likewise adduced in the motion is the joint affidavit of the other members of the Sangguniang Bayan of Mariveles attesting to the actual passage and approval of Resolution No. 57-S-92.

In a resolution dated December 29, 1994, respondent Sandiganbayan denied the Motion for Reinvestigation, the pertinent portion of which reads:

“Acting on accused Mayor Oscar delos Reyes’ Motion for Reinvestigation and accused Jesse Concepcion’s Manifestation, the same are hereby DENIED, being without merit and the prosecution having vigorously opposed the Motion.  The allegations of fact and the arguments of counsel are best taken up in the trial on the merits.  As found by the prosecution, a prima facie case exists.

Consequently, let the arraignment of the above entitled case be set on March 03, 1995, at 8:30 A.M.”

After the motion for reconsideration was denied on May 24, 1995, petitioner filed this instant petition for certiorari.  On September 18, 1995, the Court resolved to issue the temporary restraining order prayed for by petitioner.

The order of respondent Sandiganbayan must be sustained.

In an effort to exonerate himself from the charge, petitioner argues that the deliberations undertaken and the consequent passage of Resolution No. 57-S-92 are legislative in nature.  He adds that as local chief executive, he has neither the official custody of nor the duty to prepare said resolution; hence, he could not have taken advantage of his official position in committing the crime of falsification as defined and punished under Article 171 of the Revised Penal Code.

Petitioner would like to impress upon this Court that the final step in the approval of an ordinance or resolution, where the local chief executive affixes his signature, is purely a ministerial act.  This view is erroneous.  Article 109(b) of the Local Government Code outlines the veto power of the Local Chief Executive which provides:

“Article 109 (b)  The local chief executive, except the punong barangay shall have the power to veto any particular item or items of an appropriations ordinance, an ordinance or resolution adopting a local development plan and public investment program or an ordinance directing the payment of money or creating liability. x x x.” (Underscoring supplied)

Contrary to petitioner’s belief, the grant of the veto power confers authority beyond the simple mechanical act of signing an ordinance or resolution, as a requisite to its enforceability.  Such power accords the local chief executive the discretion to sustain a resolution or ordinance in the first instance or to veto it and return it with his objections to the Sanggunian, which may proceed to reconsider the same.  The Sanggunian concerned, however, may override the veto by a two-thirds (2/3) vote of all its members thereby making the ordinance or resolution effective for all legal intents and purposes.  It is clear, therefore, that the concurrence of a local chief executive in the enactment of an ordinance or resolution requires, not only a flourish of the pen, but the application of judgment after meticulous analysis and intelligence as well.

Petitioner’s other contention that the Ombudsman should have dismissed the present case in view of a previous dismissal of a similar complaint involving the same factual context is likewise misplaced.

As explained by Deputy Special Prosecutor Leonardo P. Tamayo in his comment, the other case relied upon by petitioner has no relation whatsoever with the one in question.  Notably, the former case was subject of a separate complaint and preliminary investigation, hence, the findings and records therein could not be “made part of the case under consideration.”

It must be stressed that the Ombudsman correctly relied on the minutes taken during the session of the Sangguniang Bayan held last July 27, 1992, which petitioner regards as inconclusive evidence of what actually transpired therein.  In a long line of cases, the Court, in resolving conflicting assertions of the protagonists in a case, has placed reliance on the minutes or the transcribed stenographic notes to ascertain the truth of the proceedings therein.

The following cases illustrate the importance of the minutes:

It was held that “contrary to petitioner’s claim, what the minutes only show is that on August 12, 1994 the Sanggunian took a vote on the administrative case of respondent Mayor and not that it then rendered a decision as required by Section 66(a) of the Local Government Code.”

With the same factual context as in the case at bar, petitioners herein were “accused of having falsified or caused the falsification of the excerpts of the minutes of the regular sessions of the Sangguniang Panlalawigan  of  Quirino  province on  August 15, 1988  and  September 19, 1988. x x x.”

“In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed Manila Revenue Code that were sent to interested parties as required by Article 276(b) of the Implementing Rules of the Local Government Code nor were copies of the proposed ordinance published in three successive issues of a newspaper of general circulation pursuant to Article 276(a).  No minutes were submitted to show that the obligatory public hearings had been held.”

“It appears from the minutes of the board meeting of February 28, 1958 that the names of the members present as well those who were absent have been recorded, and that all those present took active part in the debates and deliberations.  At the end of the session, when the presiding officer asked the members if there were any objections to the approval of the proposed budget, only one councilor raised an objection.  The minutes, therefore, could readily show who of the members present in the deliberations voted pro and who voted con.”

“The certification of the election registrar relied upon by the petitioner is correct as far as it goes.  Only 80 votes appear to have voted according to the precinct book in the sense that only 80 voters affixed their signatures thereon after voting.  But this does not necessarily mean that no other voters cast their ballots in the questioned precinct:  there were 279 in all, according to the minutes of voting, although only 80 of them signed the precinct book.”

“As found by the trial court, the said minutes of the meeting of the Sangguniang Bayan do not mention the execution of any deed to perfect the agreement.  An engineer was appointed to survey the old abandoned road, but this act does not in any manner convey title over the abandoned road to the Pansacola spouses nor extinguishes their ownership over the land traversed by the new provincial highway.”

In the case at bar, the minutes of the session reveal that petitioner attended the session of the Sangguniang Bayan on July 27, 1992.  It is evident, therefore, that petitioner approved the subject resolution knowing fully well that “the subject matter treated therein was neither taken up and discussed nor passed upon by the Sangguniang Bayan during the legislative session.”

Thus, the Court accords full recognition to the minutes as the official repository of what actually transpires in every proceeding.  It has happened that the minutes may be corrected to reflect the true account of a proceeding, thus giving the Court more reason to accord them great weight for such subsequent corrections, if any, are made precisely to preserve the accuracy of the records.  In light of the conflicting claims of the parties in the case at bar, the Court, without resorting to the minutes, will encounter difficulty in resolving the dispute at hand.

With regard to the joint affidavit of some members of the Sangguniang Bayan attesting to the actual passage and approval of Resolution No. 57-S-92, the Court finds the same to have been belatedly submitted as a last minute attempt to bolster petitioner’s position, and, therefore, could not in any way aid the latter’s cause.

Indeed, the arguments raised by petitioner’s counsel are best taken up in the trial on the merits.

WHEREFORE, in view of the foregoing, the instant petition is DISMISSED.  The assailed resolutions of the Sandiganbayan dated December 29, 1994, and May 24, 1995, are hereby AFFIRMED.  The temporary restraining order issued by this Court on September 18, 1995, is hereby LIFTED.

The Sandiganbayan is DIRECTED to set Criminal Case No. 21073 for arraignment and trial.

SO ORDERED.

Melo, Francisco, and Panganiban, JJ., concur.

Narvasa, C.J., (Chairman), on leave.

Filed by Sangguniang Bayan Members Jose Villapando, Sr. and Angel Peliglorio, Jr.

Concurred in by Ombudsman Investigator Samuel R. Recto and Special Prosecution Officer Cornelio L. Somido.

Rollo, pp. 51-52.

Ibid., p. 52.

Id., p. 53.

ART. 171.  Falsification by public officer, employee or notary or ecclesiastic minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:

1.         Counterfeiting or imitating any handwriting, signature or rubric;

2.         Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;

3.         Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;

4.         Making untruthful statements in a narration of facts;

5.         Altering true dates;

6.         Making any alteration or intercalation in a genuine document which changes its meaning;

7.         Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy of a statement contrary to, or different from, that of the genuine original; or

8.  Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons.

Rollo, p. 57.

Malinao v. Reyes, 255 SCRA 616 (1996).

Pimentel v. Garchitorena, 208 SCRA 122 (1992).

Drilon v. Lin, 235 SCRA 135 (1994).

Subido v. City of Manila, et al., 108 Phil. 462 (1960).

Dizon v. Tizon, 22 SCRA 1317 (1968).

Velarma v. Court of Appeals, 252 SCRA 406 (1996).

Rollo, p. 58.

G.R. No. 94115 August 21, 1992

RODOLFO E. AGUINALDO, petitioner, vs.HON. LUIS SANTOS, as Secretary of the Department of Local Government, and MELVIN VARGAS, as Acting Governor of Cagayan, respondents.

Victor I. Padilla for petitioner.

Doroteo B. Laguna and Manuel T. Molina for private respondent.

 

NOCON, J.:

In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner Rodolfo E. Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm. Case No. P-10437-89 dismissing him as Governor of Cagayan on the ground that the power of the Secretary of Local Government to dismiss local government official under Section 14, Article I, Chapter 3 and Sections 60 to 67, Chapter 4 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code, was repealed by the effectivity of the 1987 Constitution.

The pertinent facts are as follows: Petitioner was the duly elected Governor of the province of Cagayan, having been elected to said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom. He took his oath sometimes around March 1988.

Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and a letter, both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or remove from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof.

On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam, all in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was required to file a verified answer to the complaint.

On January 5, 1990, the Department of Local Government received a letter from petitioner dated December 29, 1989 in reply to respondent Secretary's December 4,

1989 letter requiring him to explain why should not be suspended or removed from office for disloyalty. In his letter, petitioner denied being privy to the planning of the coup or actively participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers. 1

Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep and others. 2 On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice, pending the outcome of the formal investigation into the charges against him.

During the hearing conducted on the charges against petitioner, complainants presented testimonial and documentary evidence to prove the charges. Petitioner neither presented evidence nor even cross-examined the complainant's witnesses, choosing instead to move that respondent Secretary inhibit himself from deciding the case, which motion was denied.

Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his removal from office. Installed as Governor of Cagayan in the process was respondent Melvin Vargas, who was then the Vice-Governor of Cagayan.

Petitioner relies on three grounds for the allowance of the petition, namely: (1) that the power of respondent Secretary to suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that since respondent Secretary no longer has power to suspend or remove petitioner, the former could not appoint respondent Melvin Vargas as Governor of Cagayan; and (3) the alleged act of disloyalty committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it is an act punishable as rebellion under the Revised Penal Code.

While this case was pending before this Court, petitioner filed his certificate of candidacy for the position of Governor of Cagayan for the May 11, 1992 elections. Three separate petitions for his disqualification were then filed against him, all based on the ground that he had been removed from office by virtue of the March 19, 1990 resolution of respondent Secretary. The commission on Elections granted the petitions by way of a resolution dated May 9, 1992. On the same day, acting upon a "Motion to Clarify" filed by petitioner, the Commission ruled that inasmuch as the resolutions of the Commission becomes final and executory only after five (5) days from promulgation, petitioner may still be voted upon as a candidate for governor pending the final outcome of the disqualification cases with his Court.

Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30, entitled Rodolfo E. Aguinaldo v. Commission on Elections, et al., seeking to nullify the resolution of the Commission ordering his disqualification. The Court, in a resolution dated May 14, 1992, issued a temporary restraining order against the Commission to cease and desist from enforcing its May 9, 1992 resolution pending

the outcome of the disqualification case, thereby allowing the canvassing of the votes and returns in Cagayan to proceed. However, the Commission was ordered not to proclaim a winner until this Court has decided the case.

On June 9, 1992, a resolution was issued in the aforementioned case granting petition and annulling the May 9, 1992 resolution of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and is still pending review with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the way for his eventual proclamation as Governor of Cagayan.

Under the environmental circumstances of the case, We find the petition meritorious.

Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before Us moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al., supra,:

. . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF CANDIDATES", attached to the "VERY URGENT MOTION FOR THE MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by petitioner shows that he received 170,382 votes while the other candidates for the same position received the following total number of votes: (1) Patricio T. Antonio — 54,412, (2) Paquito F. Castillo — 2,198; and (3) Florencio L. Vargas — 48,129.

xxx xxx xxx

Considering the fact narrated, the expiration of petitioner's term of office during which the acts charged were allegedly committed, and his subsequent reelection, the petitioner must be dismissed for the reason that the issue has become academic. In Pascual v. Provincial Board of Nueva Ecija, L-11959, October 31, 1959, this Court has ruled:

The weight of authority, however, seems to incline to the ruled denying the right to remove from office because of misconduct during a prior term to which we fully subscribe.

Offenses committed, or acts done, during a previous term are generally held not to furnish cause for removal and this is especially true were the Constitution provides that the penalty in proceeding for removal shall not extend beyond the removal from office, and disqualification from holding office for a term for which the officer was elected or appointed. (6 C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40 S.W. 23rd 418; People ex rel Bashaw v. Thompson, 130 P. 2nd 237; Board of Com'rs Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re Fedula, 147 A 67; State v. Wald, 43 S.W. 217)

The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599,

50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553.

The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57 SCRA 163 [1974]) 3

Clear then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup.

The other grounds raised by petitioner deserve scant consideration. Petitioner contends that the power of respondent Secretary to suspend or remove local government officials as alter ego of the President, and as embodied in B.P. Blg. 337 has been repealed by the 1987 Constitution and which is now vested in the courts.

We do not agree. The power of respondent Secretary to remove local government officials is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected by him. 4 The statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2 of which specifically provided as follows —

Sec. 2. The National Assembly shall enact a local government code which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, power, functions, and duties of local government officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in the plebiscite called for the purpose. 5

A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads:

Sec. 3. The Congress shall enact a local government code which shall provided for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms 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

and salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. 6

Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it can not be said that BP Blg. 337 was repealed by the effective of the present Constitution.

Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the occasion to state that B.P. Blg. 337 remained in force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is approved.

The power of respondent Secretary of the Department of Local Government to remove local elective government officials is found in Secs. 60 and 61 of B.P. Blg. 337. 8

As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ —

In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the vice-governor . . . shall assume the office for the unexpired term of the former. 9

Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only substantial evidence. 10

WHEREFORE, petitioner is hereby GRANTED and the decision of public respondent Secretary of Local Government dated March 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby REVERSED.

SO ORDERED.

EN BANC

[G.R. No. 147870.  July 31, 2002]

RAMIR R. PABLICO, petitioner, vs. ALEJANDRO A. VILLAPANDO, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

May local legislative bodies and/or the Office of the President, on appeal, validly impose the penalty of dismissal from service on erring elective local officials?

This purely legal issue was posed in connection with a dispute over the mayoralty seat of San Vicente, Palawan.  Considering that the term of the contested office expired on June 30, 2001, the present case may be dismissed for having become moot and academic. Nonetheless, we resolved to pass upon the above-stated issue concerning the application of certain provisions of the Local Government Code of 1991.

The undisputed facts are as follows:

On August 5, 1999, Solomon B. Maagad, and Renato M. Fernandez, both members of the Sangguniang Bayan of San Vicente, Palawan, filed with the Sangguniang Panlalawigan of Palawan an administrative complaint against respondent Alejandro A. Villapando, then Mayor of San Vicente, Palawan, for abuse of authority and culpable violation of the Constitution. Complainants alleged that respondent, on behalf of the municipality, entered into a consultancy agreement with Orlando M. Tiape, a defeated mayoralty candidate in the May 1998 elections.  They argue that the consultancy agreement amounted to an appointment to a government position within the prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution.

In his answer, respondent countered that he did not appoint Tiape, rather, he merely hired him.  He invoked Opinion No. 106, s. 1992, of the Department of Justice dated August 21, 1992, stating that the appointment of a defeated candidate within one year from the election as a consultant does not constitute an appointment to a government office or position as prohibited by the Constitution.

On February 1, 2000, the Sangguniang Panlalawigan of Palawan found respondent guilty of the administrative charge and imposed on him the penalty of dismissal from service. Respondent appealed to the Office of the President which, on May 29, 2000, affirmed the decision of the Sangguniang Panlalawigan of Palawan.

Pending respondent’s motion for reconsideration of the decision of the Office of the President, or on June 16, 2000, petitioner Ramir R. Pablico, then Vice-mayor of San Vicente, Palawan, took his oath of office as Municipal Mayor.  Consequently, respondent filed with the Regional Trial Court of Palawan a petition for certiorari and

prohibition with preliminary injunction and prayer for a temporary restraining order, docketed as SPL Proc. No. 3462. The petition, seeks to annul, inter alia, the oath administered to petitioner.  The Executive Judge granted a Temporary Restraining Order effective for 72 hours, as a result of which petitioner ceased from discharging the functions of mayor.  Meanwhile, the case was raffled to Branch 95 which, on June 23, 2000, denied respondent’s motion for extension of the 72-hour temporary restraining order. Hence, petitioner resumed his assumption of the functions of Mayor of San Vicente, Palawan.

On July 4, 2000, respondent instituted a petition for certiorari and prohibition before the Court of Appeals seeking to annul: (1) the May 29, 2000 decision of the Office of the President; (2) the February 1, 2000, decision of the Sangguniang Panlalawigan of Palawan; and (3) the June 23, 2000 order of the Regional Trial Court of Palawan, Branch 95.

On March 16, 2001, the Court of Appeals declared void the assailed decisions of the Office of the President and the Sangguniang Panlalawigan of Palawan, and ordered petitioner to vacate the Office of Mayor of San Vicente, Palawan. A motion for reconsideration was denied on April 23, 2001. Hence, the instant petition for review.

The pertinent portion of Section 60 of the Local Government Code of 1991 provides:

Section 60. Grounds for Disciplinary Actions. – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

x x x  x x x     x x x

An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Emphasis supplied)

It is clear from the last paragraph of the aforecited provision that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law.  Thus, in Salalima, et al. v. Guingona, et al., we held that “[t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60.”

Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that – “(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.”  The disciplining authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.

As held in Salalima, this grant to the “disciplining authority” of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations.  No rule or regulation may alter, amend, or contravene a provision of law, such as the Local Government Code.  Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity.  Even Senator Aquilino Q. Pimentel, Jr., the principal author of the Local Government Code of 1991, expressed doubt as to the validity of Article 124 (b), Rule XIX of the implementing rules.

Verily, the clear legislative intent to make the subject power of removal a judicial prerogative is patent from the deliberations in the Senate quoted as follows:

x x x  x x x     x x x

Senator Pimentel.  This has been reserved, Mr. President, including the issue of whether or not the Department Secretary or the Office of the President can suspend or remove an elective official.

Senator Saguisag.  For as long as that is open for some later disposition, may I just add the following thought: It seems to me that instead of identifying only the proper regional trial court or the Sandiganbayan, and since we know that in the case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing of this later on, I would like to suggest that we consider replacing the phrase “PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN” simply by “COURTS”.  Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang Sandiganbayan.

Senator Pimentel. “OR THE PROPER COURT.”

Senator Saguisag. “OR THE PROPER COURT.”

Senator Pimentel. Thank you.  We are willing to accept that now, Mr. President.

Senator Saguisag. It is to be incorporated in the phraseology that will craft to capture the other ideas that have been elevated.

x x x  x x x     x x x.

It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts.  Hence, Article 124 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the “disciplining authority” to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991.  The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just

an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage.  Their will must not be put to naught by the caprice or partisanship of the disciplining authority.  Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. As explained by the Court in Lacson v. Roque:

“…the abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers.  The evils resulting from a restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove.”

WHEREFORE, in view of the foregoing, the instant petition for review is DENIED.

SO ORDERED.

EN BANC

[G.R. No. 117618.  March 29, 1996]

VIRGINIA MALINAO, petitioner, vs. HON. LUISITO REYES, in his capacity as Governor of the Province of Marinduque, SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and WILFREDO RED, in his capacity as Mayor of Sta. Cruz, Marinduque, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorari and mandamus to annul the decision dated October 21, 1994 of the Sangguniang Panlalawigan of Marinduque, dismissing the administrative case filed by petitioner against respondent Mayor Wilfredo Red of Sta. Cruz, Marinduque.  The ground for the present petition is that the same body already found respondent Mayor guilty of abuse of authority in removing petitioner from her post as Human Resource Manager without due process in another decision which is now final and executory.

The facts are as follows:

Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz, Marinduque.  Respondent Mayor filed a case against her in the Office of the Ombudsman for gross neglect of duty, inefficiency and incompetence.  While the case was pending, he appointed a replacement for petitioner.

On February 24, 1994 petitioner filed an administrative case, docketed as Administrative Case No. 93-03, against respondent Mayor in the Sangguniang Panlalawigan of Marinduque, charging him with abuse of authority and denial of due process.

On August 12, 1994, the case was taken up in executive session of the Sanggunian.  The transcript of stenographic notes of the session shows that the Sanggunian, by the vote of 5 to 3 of its members, found respondent Mayor guilty of the charge and imposed on him the penalty of one-month suspension,

The result of the voting was subsequently embodied in a “Decision” dated September 5, 1994, signed by only one member of the Sanggunian, Rodrigo V. Sotto, who did so as “Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.” Copies of the “Decision” were served on respondent Mayor Red as well as on respondent Governor Luisito Reyes on September 12, 1994.

On September 14, 1994, respondent Mayor filed a manifestation before the Sanggunian, questioning the “Decision” on the ground that it was signed by Sotto alone, “apparently acting in his capacity and designated as ‘Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.’” He contended that because of this the decision could only be considered as a recommendation of the Blue Ribbon Committee and he was not bound thereby.

On September 13, 1994, respondent Mayor sought the opinion of the Secretary of the Department of the Interior and Local Government regarding the validity of the “Decision.”

In his letter dated September 14, 1994, DILG Secretary Rafael M. Alunan III opined that the “decision’ alluded to does not appear to be in accordance with Section 66 of the Local Government Code of 1991 and settled jurisprudence” since

in the instant case, the purported decision of the Blue Ribbon Committee should have been submitted to, approved and/or adopted by the Sangguniang Panlalawigan as a collegial body inasmuch as the Sangguniang Panlalawigan has the administrative jurisdiction to take cognizance thereof in conformity with Section 61 and Section 66 of the Code.  It is not for the said committee to decide on the merits thereof, more so to impose the suspension, as its duty and function is purely recommendatory.  If it were at all the intention of the Sangguniang Panlalawigan to adopt entirely the recommendation of the Blue Ribbon Committee, it should have so stated and the members of the Sangguniang Panlalawigan, who may have affirmatively voted thereon or participated in its deliberations, should have affixed their respective signatures on whatever decision that could have been arrived at. . . .

On the other hand petitioner sent a letter on October 14, 1994 to respondent Governor Reyes, demanding that the “Decision” suspending respondent Mayor from office be implemented without further delay.

In his letter dated October 20, 1994, respondent Governor informed the Sanggunian that he agreed with the opinion of the DILG for which reason he could not implement the “Decision” in question.

On October 21, 1994, the Sanggunian, voting 7 to 2, acquitted respondent Mayor of the charges against him.  The vote was embodied in a Decision of the same date, which was signed by all members who had thus voted.

Hence this petition.

I. Petitioner’s basic contention is that inasmuch as the “Decision” of September 5, 1994 had become final and executory, for failure of respondent Mayor to appeal, it was beyond the power of the Sanggunian to render another decision on October 21, 1994 which in effect reversed the first decision.

These contentions are without merit. What petitioner claims to be the September 5, 1994 “Decision” of the Sangguniang Panlalawigan bore the signature of only one member (Rodrigo V. Sotto) who signed the “Decision” as “Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.” Petitioner claims that at its session on August 12, 1994, the Sanggunian by the vote of five members against three found respondent Mayor guilty of having removed petitioner as Human Resources Officer III without due process and that this fact is shown in the minutes of the session of the Sanggunian.  The minutes referred to read in pertinent part as follows:

KGD. SOTTO - No if he [respondent Mayor] is acquitted, then let’s acquit it.  Whatever is the decision everybody goes to the majority.

(There was nominal voting from the Sangguniang Panlalawigan member. For NOT GUILTY OR GUILTY)

KGD. ZOLETA - I vote not guilty.

KGD. MUHI - Guilty.

KGD. LIM - Not guilty.

KGD. RAZA - First I would like to say that I will decide on the merit of the case. The fact that the Civil Service ordered the reinstatement wherein Virginia Molinao is included, only means that the Supreme Court duly constituted has found the merit of the decision of the Civil Service.

I vote that the Mayor is guilty.

KGD. PINAROC - Guilty.

KGD. DE LUNA - Guilty, there is no due process and to protect the integrity of the Sangguniang Panlalawigan.

KGD. LAGRAN - Guilty.

KGD. ZOLETA - My reason for voting “not guilty” is that the mayor acted in good faith, he just followed the order of the reorganization recommended by the Placement Committee.

KGD. REJANO - The order of the reorganization was given by the Civil Service Commission and based on the contention made by Kgd. Palamos that since there should be reorganization to be conducted by the Civil Service Commission the mayor was supposed to go on with that reorganization and based on the reorganization there should be a screening committee to check whether the employees are really working efficiently. Based on the case that has been given to Mrs. Malinao, based on the witnesses, Ligeralde, Monterozo and Pastrana and then decided that Mayor Red has done in good faith.

So I vote Not Guilty.

Five (5) voted GUILTY:

Kgd. Muhi

Kgd. Raza

Kgd. Pinaroc

Kgd. Lagran

Kgd. De Luna

Three (3) voted NOT GUILTY:

Kgd. Rejano

Kgd. Zoleta

Kgd. Lim

KGD. SOTTO - Punishment...

Censure? Reprimand? Suspension?

KGD. LAGRAN - I suggest that only those who voted “guilty” should vote as to what punishment should be given.

KGD. LIM - All the members should be given the right to vote.

(THE VOTING PROCEEDED.)

Kgd. Muhi - Suspension

Kgd. Raza - Suspension

Kgd. Pinaroc - Suspension

Kgd. Lagran - Suspension

Kgd. de Luna - Suspension

KGD. ZOLETA - Since we voted “not guilty” therefore “no punishment.”

KGD. REJANO - “No punishment.”

KGD. LIM - “No punishment.”

KGD. SOTTO - How many months?

KGD. MUHI - One month.

KGD. RAZA - One month.

KGD. PINAROC - One month.

KGD. LAGRAN - One month.

KGD. DE LUNA - One month.

KGD SOTTO - Be it on record that on August 12, 1994 during the Executive Session of the Sangguniang Panlalawigan en banc the respondent is hereby found “guilty.”

Effective upon receipt of the Decision, copy furnished: the counsel for Respondent, the Counsel for Complainant, the Municipal Treasurer, Sta. Cruz, Marinduque, the Provincial Auditor, the Civil Service Commission, Boac, Marinduque, the DILG, Boac, Marinduque, the Provincial Governor.

Contrary to petitioner’s claim, what the minutes only show is that on August 12, 1994 the Sanggunian took a vote on the administrative case of respondent Mayor and not that it then rendered a decision as required by § 66(a) of the Local Government Code (R.A. No. 7160) which provides as follows:

§ 66. Form and Notice of Decision. - (a) The investigation of the case shall be terminated within ninety (90) days from the start thereof. Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties.

In order to render a decision in administrative cases involving elective local officials, the decision of the Sanggunian must thus be “in writing stating clearly and distinctly the facts and the reasons for such decision.” What the Sanggunian, therefore, did on August 12, 1994 was not to render a decision.

Neither may the so-called “Decision” prepared by Sanggunian Member Rodrigo V. Sotto on September 5, 1994 be regarded as the decision of the Sanggunian for lack of the signatures of the requisite majority.  Like the procedure in the Supreme Court, the voting following the deliberation of the members of the Sanggunian did not necessarily constitute their decision unless this was embodied in an opinion prepared by one of them and concurred in by the others, in the same way that the voting following the deliberation on a case in the Supreme Court becomes its decision only after the opinion prepared by a Justice is concurred in by others composing the majority.  Until they have signed the opinion and the decision is promulgated, the Justices are free to change their votes.

Indeed, in his comment in this case, Member Sotto admits that the draft decision he prepared had only his signature “due to the reluctance of some Kagawads to affix their signatures.” Consequently the draft never became a decision.  It is noteworthy that the draft was signed by Member Sotto in his capacity as “Presiding Chairman of the Blue Ribbon Committee of the Sangguniang Panlalawigan” and that it did not provide spaces for the signatures of other members of the Sanggunian had it been intended that it be signed by them.  This fact led the DILG to conclude that the draft was simply the report and recommendation of the Blue Ribbon Committee to the Sanggunian.

Now, as already stated, the Sanggunian, at its session on October 21, 1994, took another vote and, 7 to 2, decided to dismiss the case against respondent Mayor.  This time its decision was made in writing, stating the facts and the law on which it was based, and it was signed by the members taking part in the decision.  This, and not the so-called decision of September 5, 1994, is the decision of the Sanggunian.

Petitioner complains that no notice of the session by the Sanggunian on October 21, 1994 was given to her.  None was really required to be given to her. The deliberation of the Sanggunian was an internal matter.

II. Petitioner brought this case by way of Petition for certiorari and mandamus.  A prime specification of the writ of certiorari, however, is that there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law available to petitioner.  But, in the case at bar, petitioner could have appealed the decision of the Sanggunian to the Office of the President as provided in § 67(b) of the Local Government Code.

III. At all events, this case is now moot and academic as a result of the expiration of respondent’s term during which the act complained of was allegedly committed, and further proceedings against respondent Mayor are barred by his reelection on May 8, 1995.

Pursuant to § 66(b) of the Code, the penalty of suspension cannot exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense.  On the other hand, any administrative disciplinary proceeding against respondent is abated if in the meantime he is reelected, because his reelection results in a condonation of whatever misconduct he might have committed during his previous term.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

EN BANC

[G.R. Nos. 117589-92.  May 22, 1996]

ROMEO R. SALALIMA, DANILO S. AZAÑA, JUAN VICTORIA, LORENZO REYEG, ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR RONTAS and NEMESIO BACLAO, petitioners, vs. HON. TEOFISTO T. GUINGONA, JR., in his capacity as the Executive Secretary, VICTOR R. SUMULONG, RENATO C. CORONA and ANGEL V. SALDIVAR, in their capacity as Members of the Ad Hoc Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM, JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR, RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR. SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as ACTING GOVERNOR, ACTING VICE-GOVERNOR, and ACTING MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF ALBAY, respectively, respondents.

D E C I S I O N

DAVIDE, JR., J.:

Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of authority under Section 60(e) of the Local Government Code of 1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60(c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to be served successively but not to go beyond their respective unexpired terms in accordance with Section 66(b) of R.A. No. 7160.

Prefacing the petition with a claim that the challenged administrative order is “an oppressive and capricious exercise of executive power,” the petitioners submit that:

I.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE.

II.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,47 1.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992.

III.

THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE:

A.  WHAT WERE NOT COMPLAINED OF;

B.  UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND

C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY COVERED BY PRESCRIPTION.

IV.

THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT SITTING EN BANC.

We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far submitted, after due consideration of the satisfactory explanation of the petitioners that his case has not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the Office of the Solicitor General that this case be resolved on the merits. In seeking a resolution of this case on the merits, Office of the Solicitor General invites the attention of the Court to the following:

(a)    While the periods of suspension have been served by petitioners and that some of them have even been elected to other government positions, there is the primary issue of whether the suspensions were valid and grounded on sufficient cause.

(b)    If the suspensions are found to be valid, petitioners are not entitled to reimbursement of salaries during their suspension periods.

(c)    If upheld, Administrative Order No. 15 would be used as a strong ground in filing cases against petitioners for violations of the Anti-Graft and Corrupt Practices Act.

(d)    Corollary [sic] to these issues is the issue of the interpretation and application of the [R]eal Property Tax Code and the Local Government Code under the circumstances of this case.

(e)    The resolution of these issues would finally put to rest whether respondents acted with grave abuse of discretion amounting to lack of jurisdiction for having suspended petitioners on the basis of their findings in the four (4) administrative cases filed against the petitioners.

The factual antecedents are not complicated.

Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President and later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its findings and recommendations.

The Ad Hoc Committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar.

On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President.

On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval the following pertinent findings and recommendations of the Committee; thus:

The finding of the Ad-Hoc Committee in O.P. Case Nos. 5470, 5469, 5471 and 5450 are as follows:

I. O.P. Case No. 5470

This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Vice- Governor Danilo Azaña, and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, [S]r., Jesus Marcellana, Ramon Fernandez, Jr., Masikap-Fontanilla, and Wilbor Rontas.

Docketed as O.P. Case No. 5470, the complaint charges the respondents for malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the “Local Government Code.”

The antecedent facts are as follows:

On 4 June 1990, the Supreme Court in the case entitled “National Power Corporation (NPC) v. The Province of Albay, et al.,” G.R. No. 87479 rendered judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties in Albay covering the period 11 June 1984 to 10 March 1987.

Citing the fact that its tax exemption privileges had been revoked, the Supreme Court held that NPC’s real properties, consisting mainly of geothermal plants in Tiwi and substation facilities in

Daraga, are subject to real estate tax in accordance with Presidential Decree (PD) No. 464, as amended, otherwise known as the “Real Property Tax Decree.”

Earlier, said properties were sold at an auction sale conducted by the Province of Albay (the “Province”) to satisfy NPC’s tax liabilities.  Being the sole bidder at the auction, the Province acquired ownership over said properties.

On 29 July 1992, the NPC through then President Pablo Malixi and the Province represented by respondent Salalima, entered into a Memorandum of Agreement (“MOA”) [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then estimated at P214,845,104.76.

Under the MOA, the parties agreed that:

-    the actual amount collectible from NPC will have to be recomputed/revalidated;

-    NPC shall make an initial payment of P17,763,000.00 upon signing of the agreement;

-    the balance of the recomputed/revalidated amount (less the aforesaid initial payment), shall be paid in twenty-four (24) equal monthly installments to commence in September 1992; and

-    ownership over the auctioned properties shall revert to NPC upon satisfaction of the tax liabilities.

On 3 August 1992, Mayor Corral formally requested the Province through respondent Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where NPC’s properties are located (“concerned barangays”) relative to the payments made by NPC (Exh. B).

On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution No. 12-92 (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold a joint session with the former together with Mayor Corral and the Sangguniang Pambarangays of the concerned barangays, for the purpose of discussing the distribution or application of the NPC payments.

On 10 August 1992, respondent Salalima replied that the request cannot be granted as the initial payment amounting to P17,763,000.00 was only an “earnest money” and that the total amount to be collected from NPC was still being validated (Exh. I).

Not satisfied with respondent Salalima’s response, Mayor Corral complained to NPC about the Province’s failure to remit Tiwi’s and the concerned barangays shares in the payments made by NPC (Exh. 50-C).

On 14 August 1992, President Malixi informed respondent Salalima that the representatives of both NPC and the Province have reconciled their accounts and determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20).

Due to the brewing misunderstanding between Tiwi and the concerned barangays on the one hand, and the Province on the other, and so as not to be caught in the middle of the controversy,

NPC requested a clarification from the Office of the President as to the scope and extent of the shares of local government units in real estate tax collections (Exh. 6 to 6-A).

Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5 November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,43 1.58 or a total of P27,442,364.15 from the general fund to satisfy “prior years” obligations and to implement certain projects of the Province.  These resolutions were approved by respondent Salalima on 22 October 1992 and 6 November 1992, respectively.

On 3 December 1992, the Office of the President through Chief Presidential Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province merely recognized and established NPC’s tax liability.  He further clarified that the sharing scheme and those entitled to the payments to be made by NPC under the MOA should be that provided under the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit such share directly to Tiwi.  The pertinent portion of Chief Presidential Legal Counsel Carpio’s letter dated 3 December 1992 (Exhs. H to H-1) addressed to President Malixi reads:

        xxx                                        xxx                                        xxx

The Memorandum of Agreement entered into by the Province of Albay and NPC merely enunciates the tax liability of NPC. The Memorandum of Agreement does not provide for the manner of payment of NPC’s liability. Thus, the manner of payment as provided for by law shall govern. In any event, the Memorandum of Agreement cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi.

The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only established the liability of NPC for real property taxes but does not specifically provide that said back taxes be paid exclusively to Albay province.

Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi the real property taxes accruing to the same.

Please be guided accordingly.

Very truly yours,

(Sgd.) ANTONIO T. CARPIOChief Presidential Legal Counsel

Because of this opinion, President Malixi, through a letter dated 9 December 1992 (Exhs. Ito I-1), informed Mayor Corral and respondent Salalima that starting with the January 1993 installment, NPC will directly pay Tiwi its share in the payments under the MOA. He also invited the parties to a clarificatory meeting on 17 December 1992 at his Quezon City office to discuss the matter in detail.

Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as respondent Salalima was indisposed.  President Malixi then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments already made by NPC under the MOA and the computation and the distribution of shares.

As of 9 December 1992, payments made by NPC to the Province reached P40,724,471.74, broken down as follows:

Payment Dates              Amount

July 29, 1992                            P17,763,000.00Sept. 3, 1992                                4,660,255.80Oct. 5, 1992                                  6,820,480.12Nov. 5, 1992                                  5,740,367.96Dec. 9, 1992                                 5,740,367.66

Total                                            P40,724,471.74

On 19 December 1992, in an apparent reaction to NPC’s decision to directly remit to Tiwi its share in the payments made and still to be made pursuant to the MOA, the Albay Sangguniang Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1), which, among others:

-    authorized the Provincial Treasurer upon the direction of the Provincial Governor to sell the real properties (acquired by the Province at the auction sale) at a public auction, and to cause the immediate transfer thereof to the winning bidder; and

-    declared as forfeited in favor of the Province, all the payments already made by NPC under the MOA.

Realizing from the actuations of the respondents that Tiwi’s share in the P40,724,47 1.74 payments already made by NPC will not be forthcoming, Mayor Corral filed the present complaint with the Office of the President on 25 January 1993.

In determining whether the respondents are guilty of the charges against them, the threshold issue of whether the payments to be made by NPC under the MOA should accrue solely and exclusively in favor of the Province, must first be resolved.

Sections 38, 39, 41, 86 and 87 of P.D. No. 464, as amended, prescribe the authority of local government units to levy real property tax as well as the sharing scheme among local government units including the national government with respect thereto. Said provisions; read:

SEC. 38. Incidence of Real Property Tax. - There shall be levied, assessed, and collected in all provinces, cities and municipalities an annual ad valorem tax or real property, such as land, buildings, machinery and other improvements affixed or attached to real property not hereinafter specifically exempted.

SEC. 39. Rates of Levy. - The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities as follows:

(1)              In the case of a province, the tax shall be fixed by ordinance of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property;

(2)              In the case of a city, the tax shall be fixed by ordinance of the municipal board or city council at the rate of not less than one-half of one percent but not more than two percent of the assessed value of real property; and

(3)              In the case of a municipality, the tax shall be fixed by ordinance of the municipal council subject to the approval of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property.

SEC. 41. An additional one percent tax on real property for the Special Education Fund. - There is hereby imposed an annual tax of one percent on real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; Provided, That real property granted exemption under Section 40 of this code shall also be exempt from the imposition accruing to the Special Education Fund. (as amended by P.D. No. 1913)

SEC. 86. Distribution of proceeds. - (a) The proceeds of the real property tax, except as otherwise provided in this Code, shall accrue to the province, city or municipality where the property subject to the tax is situated and shall be applied by the respective local government unit for its own use and benefit.

(b) Barrio shares on real property tax collections. -The annual shares of the barrios in real property tax collections shall be as follows:

(1)    Five percent of the real property tax collections of the province and another five percent of the collections of the municipality shall accrue in the barrio where the property subject to the tax is  situated.

(2)    In the case of the city, ten percent of the collections of the tax shall likewise accrue to the barrio where the property is situated.

        xxx                                        xxx                                        xxx

SEC. 87. Application of proceeds. - (a) The proceeds of the real property tax pertaining to the city and to the municipality shall accrue entirely to their respective general funds. In the case of the province, one-fourth thereof shall accrue to its road and bridge fund and remaining three-fourths of its general fund.

(b)      The entire proceeds of the additional one percent real property tax levied for the Special Education Fund created under RA. No. 5447 collected in the province or city on real property situated in their respective territorial jurisdictions shall be distributed as follows:

(1)  Collections in the provinces: Fifty-five percent shall accrue to the municipality where the property subject to the tax is situated; twenty-five percent shall accrue to the province; and twenty percent shall be remitted to the Treasurer of the Philippines. (as amended by PD. No. 1969)

        xxx                                        xxx                                        xxx

(c)      The proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof, shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes had been paid in regular course.

        x x x                                      x x x                                      x x x (Italics supplied)

The foregoing provisions clearly show that local government units may levy and collect real property tax ranging from a low of one-fourth of one percent (0.25%) to a high of two percent (2.0%) of the assessed value of real property depending on the local government unit levying the same.  It is likewise clear that a province, a municipality and a city may each separately levy said tax on real property located within their respective jurisdictions but not exceeding the rates prescribed under Sec. 39 of P.D. No. 464.

And apart from said basic tax, the law authorizes the collection of an additional tax equivalent to one percent (1.0%) of the assessed value of the real property to accrue to the Special Education Fund (SEF).

In accordance with the authority conferred upon them by P.D. No. 464, the following tax resolutions or ordinances were passed:

By the Province –

Resolution No. 30, series of 1978, of the Provincial Board of Albay, enacting Provincial Tax Ordinance No.4 whose Section 1, provides:

There shall be levied, assessed and collected an annual ad valorem tax on real properties including improvements thereon equivalent to one-half of one percent of the assessed value of real property.

By the Municipality of Tiwi –

Ordinance No. 25. series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:

That the tax rate of real property shall be one-half of one percent of the assessed value of real property.

By the Municipality of Daraga –

Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides:

Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50-G; Italics supplied)

Applying said rates of levy, the real property taxes collectible from the NPC are:

1.  A basic tax of 1%, levied by the Province (0. 5%) and Tiwi (0.5%) on the one hand; and the Province (0.5%) and Daraga (0.5%) on the other; and

2.  The additional 1% tax pertaining to the SEF.

or a total of 2.0% on the assessed value of NPC’s real properties.

On the other hand, sharing on said taxes, shall be as follows:

1. On the basic tax:

           Province                                       47.5%           Municipality                                  47.5%           Barangay                                       5.0%

           Total                                          100.0%

2.        On the additional tax pertaining to the SEF:

           Province                                       25.0%           Municipality                                  55.0%           National Government                  20.0  

           Total                                          100.0%

In real terms, the P40,724,471.74 in payments earlier made by NPC should be shared by the Province, Tiwi and Daraga, the concerned barangays; and the national government, as follows:

Province                       Municipalities                 Barangay                       Natl. Gov’t.

Basic Tax

P9,672,062.04            9,672,062.04                 1,018,111.79                 none

SEF

4,072,447.18               10,181,117.93               none                                6,108,670.76

Total

P13,744,509.22          19,853,179.97               1,018,111.79                 6,108,670.76

This shows that the Province is entitled only to P 13,744,509.21 of the P40,724,47 1.74 aggregate payments by NPC.  On the other hand, the balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned barangays and the national government.

The Province maintains, however, that considering that it acquired ownership over the properties of NPC subject matter of the auction, all the payments to be made by NPC under the MOA should accrue exclusively to the Province.

This is untenable.  The law clearly provides that ‘the proceeds of all the delinquent taxes and penalties as well as the income realized from the x x x disposition of real property acquired by the province or city at a public auction x x x, and the sale of delinquent property or the redemption thereof shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes have been paid in the regular course’ (Sec. 87(c) supra).

It is immaterial that the Province was the highest bidder and eventually became the owner of the properties sold at the auction sale.  What is essential is that the proceeds of the re-sale of said properties acquired by the Province, be distributed in the same manner and proportion among the rightful beneficiaries thereof as provided by law.

This was the import and essence of Chief Presidential Legal Counsel Carpio’s opinion when he stated that the sharing scheme provided by law cannot be amended by a mere agreement between the taxpayer, in this case NPC, and the collecting authority, in this instance the Province of Albay.

Likewise, it is axiomatic that while ‘contracting parties may establish stipulations, clauses, terms and conditions as they may deem convenient,’ they may not do so if these are ‘contrary to law, morals, good customs, public order or public policy’ (Art. 1306, New Civil Code).

Also relevant to the discussion are the following provisions of the Local Government Code of 1991:

Sec. 307. Remittance of Government Monies to the Local Treasury. - Officers of Local government authorized to receive and collect monies arising from taxes, revenues, or receipts of any kind shall remit the full amount received and collected to the treasury of such local government unit which shall be credited to the particular account or accounts to which the monies in question properly belong.

SEC. 308. Local Funds. - Every local government unit shall maintain a General Fund which shall be used to account for such monies and resources as may be received by and disbursed from the local treasury. The General Fund shall consist of monies and resources of the local government which are available for the payment of expenditures, obligations or purposes not specifically declared by law as accruing and chargeable to, or payable from any other fund.

SEC. 309. Special Funds. - There shall be maintained in every provincial, city, or municipal treasury the following special funds:

(a)    Special Education Fund (SEF) shall consist of the respective shares of provinces, cities, municipalities and barangays in the proceeds of the additional tax on real property to be appropriated for purposes prescribed in Section 272 of this Code; and

(b)    Trust Funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the local government unit. (Italics supplied)

These provisions are restatements of Sec. 3(4) and (5) of P.D. No. 1445 and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise known as the ‘Administrative Code of 1987.’

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds.  As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries.  Said shares cannot be lodged in, nor remain part of, the Province’s general fund.  Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD. No. 464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

However, in total disregard of the law, the Province treated the P40,724,47 1.74 NPC payments as ‘surplus adjustment’ (Account 7-92-4 19) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAO) of the Commission on Audit (COA) further support our findings, thus -

        xxx                                        xxx                                        xxx

Part II. Findings and Observations

The audit findings, which are discussed in detail in the attached report, are summarized below:

1.  The remittances of the NPC of the P40,724,471 .74 from July to December 1992 representing partial payments of real tax delinquencies from June 22, 1984 to March 10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the concerned barangays and the National Government in violation of P.D. 464. The Memorandum of Agreement entered into between the Province of Albay and Napocor cannot amend the provisions of P.D. No. 464 which specifies the sharing scheme of the real property tax among the province, city or municipality where the property subject to tax is situated and the National Government.

        xxx                                        xxx                                        xxx

2.  The collection of P40,724,471.74 was fully treated as surplus adjustment (Account 7-92-4 19) being prior years income, without creating a trust liability for the municipality and barangays concerned and national government, As of December 31, 1992, the balance of the account was only P25,668,653. 12 thus, stressing that P15,255,818.62 was spent. x x x Under the General Fund, cash available was only P4,92 1,353.44 leaving practically no cash to answer for the shares of the Municipalities of Tiwi and Daraga and their baran gays where the properties are located. (pp. 4 and 16; (Italics supplied)

        xxx                                        xxx                                        xxx

As pointed out earlier, the Province was entitled only to P13,744,509.21 of the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate and disburse P13,744,509.21.  Any disbursements exceeding this amount would therefore be illegal.

This Committee particularly notes the factual finding of COA that as of 31 December 1992, the actual cash balance of the Province’s general fund was only P4,92 1,353.44. This means that of the P40,724,471.74 actually paid by the NPC and lodged in the Province’s general fund, P35,803,118.30 was disbursed or spent by the Province.  This exceeds the P13,744,509.21 share of the Province by P22,058,609.09.

The foregoing may be illustrated as follows:

NPC Payments received by           the Province                                              P40,724,471.74

Less   Actual Cash Balance (general fund)

           as of 12-31-92 -                                              4,921,353.44 P35,803,118.30

           Less Share of the Province                     13,744,509.21

           Amount Illegally Disbursed           by the Province                                        P22,058,609.09

We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as forfeited in favor of the Province the entire amount of P40,724,471.74 paid by NPC to be patently illegal as it unlawfully deprives Tiwi and Daraga, the barangays concerned, and the national government of their rightful shares in said payments. Being illegal, said ordinance may not be used or relied upon by the respondents to justify the disbursements of funds in excess of their share.

Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements considering that the appropriations made thereunder totalling P27,442,364.51 are to be funded by the P40,724,471.74 ‘surplus adjustment’ that includes the ‘trust funds’ not belonging to the Province. Even assuming that Resolution No. 178-92 authorizing the expenditure of P9,778,932.57 were to be taken from the Province’s share amounting to P13,744,509.21, the rest of the disbursements still have no legal basis. Clearly, this is violative of the fundamental rule that ‘(n)o money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law’ (par. [a], Sec. 305, Republic Act No. 7160).

Respondents raise the common defense that the findings contained in SAO Report No. 93-11 are not yet final as they have filed an appeal therefrom.

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries.

Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

Respondents’ contention that COA’s factual findings, contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable.  For no administrative or criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance.  This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court.

Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law.  Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts.

Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report 93-11 to enable this Committee to evaluate the merits of the instant complaint.

We also reject respondent Azaña’s defense that since he did not participate in the deliberation and passage of Resolution No. 09-92, merely signing the same as presiding officer of the Sangguniang Panlalawigan, and only certifying that the same had been passed, he did not incur any administrative liability.

The fact remains that as presiding officer of the Sangguniang Panlalawigan and being the second highest official of the Province, respondent Azaña is jointly responsible with other provincial officials in the administration of fiscal and financial transactions of the Province. As presiding officer of the Sangguniang Panlalawigan, respondent Azaña has a duty to see to it that resolutions or ordinances passed are within the bounds of the law.  He cannot merely preside over the sessions of the Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or ordinances being proposed or deliberated upon by his colleagues.

This collective responsibility is provided under Secs. 304 and 305 of Republic Act. No. 7160, thus –

SEC. 304. Scope. - This Title shall govern the conduct and management of financial affairs, transactions and operations of provinces, cities, municipalities, and barangays.

SEC. 305. Fundamental Principles. - The financial affairs, transactions, and operations of local government units shall be governed by the following fundamental principles:

        xxx                                        xxx                                        xxx

(1)  Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of local government units; and

x x x           x x x             x x x      (Italics supplied.)

It cannot be denied that the Sangguniang Panlalawigan has control over the Province’s ‘purse’ as it may approve or not resolutions or ordinances generating revenue or imposing taxes as well as appropriating and authorizing the disbursement of funds to meet operational requirements or for the prosecution of projects.

Being entrusted with such responsibility, the provincial governor, vice-governor and the members of the Sangguniang Panlalawigan, must always be guided by the so-called ‘fundamental’ principles enunciated under the Local Government Code, i.e., ‘No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; local revenue is generated only from sources authorized by law or ordinance and collection thereof shall at all times be acknowledged properly; all monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; and trust funds in the local treasury shall not be paid out except in fulfillment of the purposes for which the trust was created or the funds received’ (Sec. 305, R.A. 7160).

All the respondents could not claim ignorance of the law especially with respect to the provisions of P.D. No. 464 that lay down the sharing scheme among local government units concerned and

the national government, for both the basic real property tax and additional tax pertaining to the Special Education Fund.  Nor can they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC considering that the Province is only entitled to a portion thereof and that the balance was merely being held in trust for the other beneficiaries.

As a public officer, respondent Azaña (and the other respondents as well) has a duty to protect the interests not only of the Province but also of the municipalities of Tiwi and Daraga and even the national government.  When the passage of an illegal or unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act accordingly, but actively opposing the same by temporarily relinquishing his chair and participating in the deliberations.  If his colleagues insist on its passage, he should make known his opposition thereto by placing the same on record. No evidence of any sort was shown in this regard by respondent Azaña.

Clearly, all the respondents have, whether by act or omission, denied the other beneficiaries of their rightful shares in the tax delinquency payments made by the NPC and caused the illegal forfeiture, appropriation and disbursement of funds not belonging to the Province, through the passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-92.

The foregoing factual setting shows a wanton disregard of law on the part of the respondents tantamount to abuse of authority.  Moreover, the illegal disbursements made can qualify as technical malversation.

This Committee, thus, finds all the respondents guilty of abuse of authority, and accordingly, recommends the imposition of the following penalties of suspension without pay:

a.        Respondent Salalima – five (5) months; and

b.        All the other               – four (4) months each.           respondents

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azafla, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint was docketed as OP Case No. 5469.

The antecedent facts are as follows.

Because of the refusal by the National Power Corporation (“NPC”) to pay real property taxes assessed by the Province of Albay (“the Province”) covering the period from 11 June 1984 up to 10 March 1987 amounting to P2 14,845,184.76, the Province sold at public auction the

properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale.

As NPC failed to redeem its properties sold at the auction, the Province petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of possession over the same.

Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed as G.R. No. 87479, questioning the validity of the auction sale conducted by the Province. NPC claims, inter alia, that its properties are not subject to real property tax.

On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed its comment on the NPC petition with the Supreme Court.

On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 (Exhs. B to B-I) authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC.

On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479.  The entry of appearance of Atty. Cornago bore the conformity of respondent Governor.

On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth the conditions of the retainer agreement, thus:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event that we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 (Exhs. C to C- 1) authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm.

Respondent Salalima signed the retainer agreement.

On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the Province to answer for NPC’s tax liabilities.

Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-l) were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago:

Particulars                   Claimant/Payee                          Amount

Disbursement              Cortes & Reyna                          P50,508.75Voucher (DV)No. 4, Jan.8, 1990Check No.

931019

DV No. 1889               Atty. Antonio Jose Cortes        P1,421,040.00Aug. 13, 1992.Check No.

236063-S

DV No. 1890               Atty. Jesus R. Cornago            P1,786,300.00Aug. 13, 1992Check No.

236064-S

DV No. 2151               Atty. Antonio Jose Cortes         P838,85 1.44Sept. 28,1992, Check

No. 238174-S

DV No. 2226               Atty. Antonio Jose Cortes        P886,662.40Oct. 8,. 1992Check No.

239528-S

DV No. 2227               Atty. Jesus R. Cornago             P341,024.00Oct. 8, 1992Check No.

239529-S

DV No. 2474               Atty. Jesus R. Cornago            P287,018.40Nov. 6, 1992Check No.250933

DV No. 2475               Atty. Antonio Jose Cortes        P746,247.83

Dec. 9, 1992Check No.253163

DV No. 2751               Atty. Antonio Jose Cortes        P747,247.84Dec. 9, 1992Check No.253163

DV No. 2752               Atty. Jesus R. Cornago            P287,018.40Dec. 9, 1992Check No.253164                                                                           ____________

TOTAL                                                                            P7,380,410.31

Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaña. The rest were approved by respondent Governor.

In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent Governor that payments made by the Province as attorney’s fees amounting to P7,380,410.31 have been disallowed by the Commission on Audit (COA, with the following notation:

The disbursement vouchers detailed hereunder represent payments for attorney’s fees of Cortes & Reyna Law Office for legal services rendered re: G.R. No. 87479 NAPOCOR, Petitioner vs. The Province of Albay, et al., Respondent,’ Supreme Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the requisite ‘prior written conformity and acquiescence of the Solicitor General x x x as well as the written concurrence of the commission on Audit’ as provided for and required under COA Circular No. 86-255 dated April 2, 1986, re: ‘Inhibition against employment by government: agencies and instrumentalities x x x of private lawyers to handle their legal cases,’ viz.

The complaint alleges that by entering into the retainer agreement with private lawyers and paying P7, 380, 410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorney’s fees.

The sole issue in this case is whether or not respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the Province.

We find merit in the complaint and hold that under the circumstances surrounding the transaction in question the respondents abused their authority.

Sec. 481 of the Local Government Code (R.A. No. 7160) requires the appointment of a legal officer for the province whose functions include the following:

Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party.

The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93 Phil. 173 (1953), that local governments [sic] units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus:

Under the law, the Provincial Fiscal of Bulacan, and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions xxx

It would seem clear that the Provincial Fiscal is the only counsel who can rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers hired by the Province of Bulacan] have no standing in the case. The appeal herein interposed in behalf of the plaintiffs cannot therefore be maintained.

This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case of Municipality of Bocaue, et al. v. Manotok.

In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court.

Moreover, the entire transaction was attended by irregularities.  First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-25 5 dated 2 April 1986.

The respondents attempted to dispute this finding by presenting the Solicitor General’s conformity dated 15 July 1993.  This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 86-255 is a prior written conformity and acquiescence of the Solicitor General.

Another irregularity in the transaction concerns the lawyers. Resolution No. 0 1-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by

respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retained contract itself:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 million, payable to us in the event we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

        xxx                                         xxx                                         xxx

Very truly yours,

CORTES & REYNALAW FIRM

- and -

Atty. JESUS R. CORNAGOJarnecca Building

280 Tomas Morato Avenue

  by:

(Sgd.) ANTONIO JOSE F. CORTES

With my conformity:

(Sgd.) GOV. ROMEO R. SALALIMAProvince of Albay

(Italics supplied.)

In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90.

Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case (G.R. No. 87479). We quote the entry of appearance of Any. Cornago in full in said case:

APPEARANCE

COMES NOW, the undersigned counsel, and to this Honorable Supreme Court, respectfully enters his appearance as counsel for the respondents in the above-entitled case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the respondents. This appearance bears the conformity of the respondent Gov. Romeo R. Salalima, as shown by his signature appearing at the space indicated below. In this connection, it is respectfully requested that, henceforth, the undersigned counsel be furnished with a copy of all notices, orders, resolutions and other matters that may be issued in this case at its office address indicated below.

Quezon City, for Manila, August 24, 1989.

(Sgd.) JESUS R. CORNAGOCounsel for Respondents280 Tomas Morato AvenueQuezon CityPTR No. 561005-’89 MandaluyongIBP No. 279351-’89 Pasig, MM

With my conformity:

(Sgd.) ROMEO R. SALALIMARespondent

Office of the Governor of AlbayLegaspi City

Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm, thus:

Incidentally, a check with our office records of the case G.R. No. 87479 reveals that the Province of Albay and its officials named respondents therein were represented in the Supreme Court by Atty. Romulo Ricafort the Province’s Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance was entered therein by the Cortes & Reyna Law Firm. (Italics supplied)

Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479.

Finally, the attorney’s fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable.  The contingent fee of 18% of

the ”P2l4 million” claim of the Province against NPC amounts to P38.5 million.  The word “unconscionable,” as applied to attorney’s fee, “means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him.” (Moran, Comments on the Rules of Court, Vol. 6, p. 236.)

The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC’s petition against the Province.  The comment filed by Atty. Ricafort already covers the basic issues raised in the petition.  When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million.

Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College, thus:

SECRETARY CORONA:

May I ask a question Governor, what was your basis for choosing this particular Law office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this particular Law office? Frankly, I never heard of this law office. Who recommended it?

GOVERNOR SALALIMA:

Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda.

SECRETARY CORONA:

Were you classmates?

GOVERNOR SALALIMA:

No.

SECRETARY CORONA:

How many years apart were you?

GOVERNOR SALALIMA:

Two (2) years.

SECRETARY CORONA:

So, you knew each other from the law school?

GOVERNOR SALALIMA:

Yes.

SECRETARY CORONA:

Were you members of the same fraternity in San Beda?

GOVERNOR SALALIMA:

Yes.

(TSN, 12 July 1992, pp. 27-29.)

It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record.  Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney’s fee of P38.5 million is unconscionable.  By allowing such scandalously exorbitant attorney’s fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority.

Parenthetically, the retainer contract containing such exorbitant attorney’s fees may also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985) prohibiting irregular, unnecessary, excessive or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Finally, the Committee again applies in this case, as was applied in OP Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305(1) of the Local Government Code.

In view of the foregoing, the Committee holds that respondents committed abuse of authority under Sec. 60(e) of the Local Government Code for the following:

1.  Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to handle the case of the Province of Albay before the Supreme Court in G.R. No. 87479;

2.  Disbursing public money in violation of COA rules and regulations;

3.  Paying the Cortes & Reyna Law Firm public money although it was only Atty. Cornago who was the counsel of record of the Province of Albay in the Supreme Court case;

4.  Authorizing an unconscionable and grossly disadvantageous attorney’s fees of P38.5 million; and

5.  Additionally, as to respondent Governor, entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his authority under Resolution No. 0 1-90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the Committee recommends that the following penalties of suspensions without pay be meted out:

a.       Respondents Salalima          –          six (6) months           and Azaña                                            each; and

b.       All the other           respondents                            –           four (4) months

    

SECOND DIVISION

[G.R. No. 139043.  September 10, 1999]

MAYOR ALVIN B. GARCIA, petitioner, vs. HON. ARTURO C. MOJICA, in his capacity as Deputy Ombudsman for the Visayas, VIRGINIA PALANCA-SANTIAGO, in his capacity as Director, Office of the Ombudsman (Visayas), ALAN FRANCISCO S. GARCIANO, in his capacity as Graft Investigation Officer I, Office of the Ombudsman (Visayas), and JESUS RODRIGO T. TAGAAN, respondents.

D E C I S I O N

QUISUMBING, J.:

The present controversy involves the preventive suspension order issued on June 25, 1999, by the Office of the Ombudsman (Visayas) in OMB-VIS-ADM-99-0452, against petitioner Cebu City Mayor Alvin B. Garcia and eight other city officials.  Under the said order, petitioner was placed under preventive suspension without pay for the maximum period of six months and told to cease and desist from holding office immediately.

The factual antecedents are as follows:

On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of asphalt to the city.  The contract covers the period 1998-2001, which period was to commence on September 1998 when the first delivery should have been made by F.E. Zuellig.

Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City, through the contract signed by petitioner.  This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into the matter.

Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132.  After his investigation, he recommended that the said inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved.  Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation.

In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft investigating officer to whom the case was raffled for investigation, recommended the preventive suspension of petitioner and the others.  Two days later, or on June 24, 1999, the affidavit-complaint against petitioner was filed.  The following day, on June 25, 1999, the Office of the Ombudsman issued the questioned preventive suspension order.  On June 29, 1999, petitioner filed a motion for reconsideration of said order, which motion was denied in an order dated July 5, 1999.

Petitioner is now before this Court assailing the validity of the said order.  He pleads for immediate relief through the present petition for certiorari and prohibition with a prayer for temporary restraining order and/or writ of preliminary injunction.  Petitioner contends that:

I

THE RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ASSUMING JURISDICTION OVER OMB-VIS-ADM-99-0452 AND ISSUING THE PREVENTIVE SUSPENSION ORDER, THE OFFICE OF THE OMBUDSMAN BEING WITHOUT JURISDICTION OVER THE ADMINISTRATIVE CASE, CONSIDERING THAT THE ALLEGED ACT CONSTITUTING THE CHARGE AGAINST PETITIONER HEREIN WAS COMMITTED DURING HIS PREVIOUS TERM, AND PETITIONER HAVING BEEN REELECTED TO THE SAME POSITION.

II

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-99-0452, THE PREVENTIVE SUSPENSION FOR SIX MONTHS WAS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF THE PROVISIONS OF SECTION 63 OF THE LOCAL GOVERNMENT CODE WHICH MANDATES THAT THE PREVENTIVE SUSPENSION OF LOCAL ELECTIVE OFFICIALS BE ORDERED ONLY AFTER THE ISSUES HAVE BEEN JOINED, AND ONLY FOR A PERIOD NOT IN EXCESS OF SIXTY (60) DAYS.

III

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-99-0452, THE PREVENTIVE SUSPENSION WAS ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF SECTION 26(2) OF THE OMBUDSMAN LAW.

IV

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION, THE RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CONCLUDING THAT THE EVIDENCE AGAINST PETITIONER WAS “STRONG”, THE LITTLE EVIDENCE ON RECORD CONSISTING SOLELY OF A HEARSAY AFFIDAVIT, AND INADMISSIBLE NEWSPAPER REPORTS.

On July 19, 1999, we directed the parties to maintain the status quo until further orders from this Court.  It appears that on the same day, petitioner issued a memorandum informing employees

and officials of the Office of the City Mayor that he was assuming the post of mayor effective immediately.  On July 23, 1999, respondents filed a motion seeking clarification of our status quo order.  Respondents claimed that the status quo referred to in the order should be that where petitioner is already suspended and vice mayor Renato Osmeña is the acting city mayor.

Petitioner, in reply, argued that the status quo refers to “the last actual peaceable uncontested status which preceded the pending controversy.” Thus, the status quo could not be that where petitioner is preventively suspended since the suspension did not precede the present controversy; it is the controversy.

We agree with petitioner in this regard.  As explained by Justice Florenz D. Regalado, an authority on remedial law:

“There have been instances when the Supreme Court has issued a status quo order which, as the very term connotes, is merely intended to maintain the last, actual, peaceable and uncontested state of things which preceded the controversy.  This was resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief or the allegations in his pleading did not sufficiently make out a case for a temporary restraining order.  The status quo order was thus issued motu proprio on equitable considerations.  Also, unlike a temporary restraining order or a preliminary injunction, a status quo order is more in the nature of a cease and desist order, since it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory injunctive relief.  The further distinction is provided by the present amendment in the sense that, unlike the amended rule on restraining orders, a status quo order does not require the posting of a bond.”

On July 28, 1999, we heard the parties’ oral arguments on the following issues:

1.  What is the effect of the reelection of petitioner on the investigation of acts done before his reelection?  Did the Ombudsman for the Visayas gravely abuse his discretion in conducting the investigation of petitioner and ordering his preventive suspension?

2.  Assuming that the Ombudsman properly took cognizance of the case, what law should apply to the investigation being conducted by him, the Local Government Code (R.A. 7160) or the Ombudsman Law (R.A. 6770)?  Was the procedure in the law properly observed?

3.  Assuming further that the Ombudsman has jurisdiction, is the preventive suspension of petitioner based on “strong evidence” as required by law?

We will now address these issues together, for the proper resolution on the merits of the present controversy.

Petitioner contends that, per our ruling in Aguinaldo v. Santos, his reelection has rendered the administrative case filed against him moot and academic.  This is because reelection operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term.  Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija, that

“. . . When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any.  It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people.”

Respondents, on the other hand, contend that while the contract in question was signed during the previous term of petitioner, it was to commence or be effective only on September 1998 or during his current term.  It is the respondents’ submission that petitioner “went beyond the protective confines” of jurisprudence when he “agreed to extend his act to his current term of office.” Aguinaldo cannot apply, according to respondents, because what is involved in this case is a misconduct committed during a previous term but to be effective during the current term.

Respondents maintain that,

“...petitioner performed two acts with respect to the contract:  he provided for a suspensive period making the supply contract commence or be effective during his succeeding or current term and during his current term of office he acceded to the suspensive period making the contract effective during his current term by causing the implementation of the contract.”

Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.

Further, respondents point out that the contract in question was signed just four days before the date of the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to office, they did so with full knowledge of petitioner’s character.

On this point, petitioner responds that knowledge of an official’s previous acts is presumed and the court need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds.

Petitioner cites our ruling in Salalima v. Guingona, wherein we absolved Albay governor Romeo R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term, although disbursements of public funds to cover payments under the agreement were still being done during his subsequent term.  Petitioner argues that, following Salalima, the doctrine in Aguinaldo applies even where the effects of the act complained of are still evident during the subsequent term of the reelected official.  The implementation of the contract is a mere incident of its execution.  Besides, according to petitioner, the “sole act” for which he has been administratively charged is the signing of the contract with F.E. Zuellig.  The charge, in his view, excludes the contract’s execution or implementation, or any act subsequent to the perfection of the contract.

In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of candidacy for his reelection bid.  Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection.

Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution.  Under Article XI, Section 13[1], the Ombudsman has the power to:

“investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.”

R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct administrative investigations.  Thus, Section 19 of said law provides:

“SEC. 19.  Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:(1) Are contrary to law or regulation;(2) Are unreasonable, unfair, oppressive or discriminatory;(3) Are inconsistent with the general course of an agency’s functions, though in accordance with law;(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;(5) Are in the exercise of discretionary powers but for an improper purpose; or(6) Are otherwise irregular, immoral or devoid of justification.”

Section 21 of R.A. 6770 names the officials subject to the Ombudsman’s disciplinary authority:

“SEC. 21.  Officials Subject To Disciplinary Authority; Exceptions. – The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.”(Emphasis supplied.)

Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission, is different from the question of whether or not petitioner, after investigation, may be held administratively liable.  This distinction ought here to be kept in mind, even as we must also take note that the power to investigate is distinct from the power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law.  Under Section 24 of R.A. 6770 –

“SEC. 24.  Preventive Suspension. – The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the

evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.

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

We have previously interpreted the phrase “under his authority” to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are employed, excepting of course those removable by impeachment, members of Congress and the Judiciary.

The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman.  This is the clear import of Section 24 of R.A. 6770 abovecited.

There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or influence witnesses or to tamper with records that might be vital to the prosecution of the case against him. In our view, the present controversy simply boils down to this pivotal question:  Given the purpose of preventive suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among other factors, the evidence of guilt is strong.  The period for which an official may be preventively suspended must not exceed six months.  In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law.

“SEC. 24.  Preventive Suspension. –

x x x

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.” (Underscoring supplied.)

The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the Ombudsman. The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman, except that he cannot extend the period of

suspension beyond that provided by law. But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition.  These equitable remedies under Rule 65 of the Rules of Court precisely exist to provide prompt relief where an “officer exercising judicial or quasi-judicial functions has acted...with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.” (See Rule 65, Sec. 1).

It is pertinent to note here that the inquiry that preceded the filing of an administrative case against petitioner was prompted by newspaper reports regarding the allegedly anomalous contract entered into by petitioner, on behalf of Cebu City, with F.E. Zuellig. In the memorandum to respondent Mojica, respondent Garciano recommended that petitioner be preventively suspended, based on an initial investigation purportedly showing:  (1) the contract for supply of asphalt to Cebu City was designed to favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive compared to the amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that the amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risks attendant to a fluctuating exchange rate, and (3) the interest of the city under the contract is not protected by adequate security.  These findings were based on the contract itself and on letters from Bitumex and Credit Lyonnais.  There were also letters from Shell and Petron that were replies to the Office of the Ombudsman’s (Visayas) inquiry on whether or not they could supply Cebu City with asphalt and on what terms.

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.

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.

Respondents base their argument on the deliberations of the Senate on Senate Bill No. 155, which became the Local Government Code.  Senator Aquilino Pimentel, Jr., commenting on the preservation in the proposed Code of the power of the Office of the President to suspend local officials, said:

“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.”

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.

In Hagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of his power to investigate local elective officials by virtue of the Local Government Code, we said:

“Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act.  The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other.”

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.”

However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be preventively suspended even before the issues could be joined.  Indeed it did not, but we have held in other cases that there could be preventive suspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence. Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section 26(2) of the Ombudsman Law, which provides:

“SEC. 26.  Inquiries. – xxx

(2) The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission.  It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor.  If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt thereof…”

Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concerned must be given 72 hours to answer the charges against him.  In his case, petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him.  This, however, does not make invalid the preventive suspension order issued against him.  As we have earlier stated, a preventive suspension order may be issued even before the charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan.  We find this 10-day period is in keeping with Section 5(a) of the Rules of Procedure of the Office of the Ombudsman, which provides:

“Sec. 5.  Administrative adjudication; How conducted.—

(a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt thereof, together with proof of service of the same on the complainant who may file reply affidavits within ten (10) days from receipt of the counter-affidavits of the respondent.”

We now come to the concluding inquiry.  Granting that the Office of the Ombudsman may investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of office; and that it may preventively suspend him for a reasonable period, can that office hold him administratively liable for said acts?

In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct.  If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.

However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just four days before the date of the elections.  It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character.

For his part, petitioner contends that “the only conclusive determining factor” as regards the people’s thinking on the matter is an election.  On this point, we agree with petitioner.  That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge.  Such an undertaking will obviously be impossible.  Our rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the official’s reelection, except that it must be prior to said date.

As held in Salalima,

“The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law.  Such a rule is not only founded on the theory that an official’s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term.  We may add that sound policy dictates it.  To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term.  His second term may thus be devoted to defending himself in the said cases to the detriment of public service...” (Emphasis added.)

The above ruling in Salalima applies to this case.  Petitioner cannot anymore be held administratively liable for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig.

The assailed retainer agreement in Salalima was executed sometime in 1990.  Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during his succeeding term.  This situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during petitioner’s second term.

However, respondents argue that the contract, although signed on May 7, 1998, during petitioner’s prior term, is to be made effective only during his present term.

We fail to see any difference to justify a valid distinction in the result.  The agreement between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioner’s prior term.  At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government.  Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed.  It hardly matters that the deliveries under the contract are supposed to have been made months later.

While petitioner can no longer be held administratively liable for signing the contract with F. E. Zuellig, however, this should not prejudice the filing of any case other than administrative against petitioner.  Our ruling in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing the subject contract.  The ruling now is limited to the question of whether or not he may be held administratively liable therefor, and it is our considered view that he may not.

WHEREFORE, the petition is hereby DENIED insofar as it seeks to declare that respondents committed grave abuse of discretion in conducting an inquiry on complaints against petitioner, and ordering their investigation pursuant to respondents’ mandate under the Constitution and the Ombudsman Law.  But the petition is hereby GRANTED insofar as it seeks to declare that respondents committed grave abuse of discretion concerning the period of preventive suspension imposed on petitioner, which is the maximum of six months, it appearing that 24 days – the number of days from the date petitioner was suspended on June 25, 1999, to the date of our status quo order on July 19, 1999 – were sufficient for the purpose.  Accordingly, petitioner’s preventive suspension, embodied in the order of respondent Deputy Ombudsman, dated June 25, 1999, should now be, as it is hereby, LIFTED immediately.

SO ORDERED.

Bellosillo, Acting C.J.,  (Chairman), Mendoza, and Buena, JJ., concur.

THIRD DIVISION

[G.R. No. 142261.  June 29, 2000]

GOVERNOR MANUEL M. LAPID, petitioner, vs. HONORABLE COURT OF APPEALS, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION, FACT-FINDING INTELLIGENCE BUREAU (FFIB) of the Office of the Ombudsman, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, respondents.

R E S O L U T I O N

GONZAGA-REYES, J.:

Before us are the Motions for Reconsideration filed by the National Bureau of Investigation and the Department of the Interior and Local Government, represented by the Office of the Solicitor-General, and the Office of the Ombudsman of our 5 April 2000 Resolution. In this resolution, we ordered the immediate reinstatement of petitioner Manuel Lapid to the position of Governor of Pampanga as the respondents failed to establish the existence of a law mandating the immediate execution of a decision of the Office of the Ombudsman in an administrative case where the penalty imposed is suspension for one year.

The factual antecedents are as follows:

On the basis of an unsigned letter dated July 20, 1998, allegedly originating from the “Mga Mamamayan ng Lalawigan ng Pampanga,” addressed to the National Bureau of Investigation, the latter initiated an “open probe” on the alleged illegal quarrying in Pampanga & exaction of exorbitant fees purportedly perpetrated by unscrupulous individuals with the connivance of high-ranking government officials. The NBI Report was endorsed to the respondent Ombudsman and was docketed as OMB-1-98-2067.

On Oct. 26, 1998, a complaint was filed charging petitioner Gov. Manuel M. Lapid, Vice-Governor Clayton Olalia, Provincial Administrator Enrico Quiambao, Provincial Treasurer Jovito Sabado, Mabalacat Municipal Mayor Marino Morales and Senior Police Officer 4 Nestor Tadeo with alleged “Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service” for allegedly “having conspired between and among themselves in demanding and collecting from various quarrying operators in Pampanga a control fee, control slip, or monitoring fee of P120.00 per truckload of sand, gravel, or other quarry material, without a duly enacted provincial ordinance authorizing the collection thereof and without issuing receipts for its collection.  They were also accused of giving unwarranted benefits to Nestor Tadeo, Rodrigo “Rudy” Fernandez & Conrado Pangilinan who are neither officials/employees of the Provincial Government. of Pampanga nor quarry operators by allowing them to collect the said amount which was over and above the P40.00 prescribed under the present provincial ordinance and in allowing Tadeo, Fernandez and Pangilinan to sell and deliver to

various quarry operators booklets of official receipts which were pre-stamped with “SAND FEE P40.00.”

The Ombudsman issued an Order dated January 13, 1999 preventively suspending petitioner Lapid, Olalia, Quiambao, Sabado, Morales and Tadeo for a period of six (6) months without pay pursuant to Sec. 24 of RA 6770. On Jan. 19, 1999, the Department of the Interior and Local Government (hereinafter the “DILG”) implemented the suspension of petitioner Lapid.

On November 22, 1999 the Ombudsman rendered a decision in the administrative case finding the petitioner administratively liable for misconduct thus:

“Wherefore, premises considered, respondent Manuel M. Lapid, Clayton A. Olalia, Jovito S. Sabado and Nestor C. Tadeo are hereby found guilty of misconduct for which they are meted out the penalty of one (1) year suspension without pay pursuant to section 25 (2) of R.A. 6770 (Ombudsman Act of 1989). Respondent Marino P. Morales is hereby exonerated from the same administrative charge for insufficiency of evidence. The complaint against respondent Enrico P. Quiambao, who resigned effective June 30, 1998 was dismissed on March 12, 1999, without prejudice to the outcome of the criminal case.”

The copy of the said decision was received by counsel for the petitioner on  November 25, 1999 and a motion for reconsideration was filed on November 29, 1999. The Office of the Ombudsman, in an Order dated 12 January 2000, denied the motion for reconsideration.

Petitioner then filed a petition for review with the Court of Appeals on January 18, 2000 praying for the issuance of a temporary restraining order to enjoin the Ombudsman from enforcing the questioned decision. The temporary restraining order was issued by the appellate court on January 19, 2000.

When the 60-day lifetime of the temporary restraining order lapsed on March 19, 2000 without the Court of Appeals resolving the prayer for the issuance of a writ of preliminary injunction, a petition for certiorari, prohibition and mandamus was filed with this Court on March 20, 2000.  The petition asked for the issuance of a temporary restraining order to enjoin the respondents from enforcing the assailed decision of the Ombudsman and prayed that “after due proceedings, judgment be rendered reversing and setting aside the questioned decision (of the Ombudsman) dated November 22, 1999 and the order dated January 12, 2000.”

On March 22, 2000 the Third Division of this Court issued a Resolution  requiring the respondents to comment on the petition. That same day, the Court of Appeals issued a resolution denying the petitioner’s prayer for injunctive relief. The following day, or on March 23, 2000, the DILG implemented the assailed decision of the Ombudsman and the highest ranking Provincial Board Member of Pampanga, Edna David, took her oath of office as O.I.C.- Governor of the Province of Pampanga.

On March 24, 2000 a Motion for Leave to File Supplement to the Petition for Certiorari, Prohibition and Mandamus and the Supplement to the Petition itself were filed in view of the resolution of the Court of Appeals denying the petitioner’s prayer for preliminary injunction. In addition to the arguments raised in the main petition, the petitioner likewise raised in issue the apparent pre-judgment of the case on the merits by the Court of Appeals in its resolution denying the prayer for preliminary injunction.  In so doing, petitioner argued that the respondent court exceeded the bounds of its jurisdiction. Proceeding from the premise that the decision of the Ombudsman had not yet become final, the petitioner argued that the writs of prohibition and mandamus may be issued against the respondent DILG for prematurely implementing the assailed decision.  Finally, the petitioner prayed for the setting aside of the resolution issued by the Court of Appeals dated March 22, 2000 and for the issuance of a new one enjoining the respondents from enforcing the said decision or, if it has already been implemented, to withdraw any action already taken until the issue of whether or not the said decision of the Ombudsman is immediately executory has been settled.

The Solicitor-General and the Office of the Ombudsman filed their respective commentsto the petition praying for the dismissal thereof.  Regarding the issue of the immediate enforcement of the decision of the Ombudsman, the Solicitor-General maintains that the said decision is governed by Section 12, Rule 43 of the Rules of Court and is therefore, immediately executory. For its part, the Office of the Ombudsman maintains that the Ombudsman Law and its implementing rules are silent as to the execution of decisions rendered by the Ombudsman considering that the portion of the said law cited by petitioner pertains to the finality of the decision but not to its enforcement pending appeal. The Office of the Ombudsman also stated that it has uniformly adopted the provisions in the Local Government Code and Administrative Code that decisions in administrative disciplinary cases are immediately executory.

The  Solicitor-General filed an additional comment alleging that  the petitioner did not question the executory character of the decision of the Ombudsman and that he is presenting this argument for the first time before the Supreme Court. The appellate court should be given  an opportunity to review the case from this standpoint  before asking the Supreme Court to review the resolutions of the Court of Appeals.  The petitioner filed a consolidated Reply to the Comments of the respondents.

After oral arguments before the Third Division of this Court on 5 April 2000, the Resolution subject of the instant Motions for Reconsideration was issued.  The Resolution provides as follows:

“From the pleadings filed by the parties and after oral arguments held on April 5, 2000, the petitioner represented by Atty. Augusto G. Panlilio, the respondent Ombudsman represented by its Chief Legal Counsel, and the National Bureau of Investigation and the Department of the Interior and Local Government represented by the Solicitor General, and after due deliberation, the Court finds that the respondents failed to establish the existence of a law mandating the immediate execution of a decision of the Ombudsman in an administrative case where the penalty imposed is suspension for one

year.  The immediate implementation of the decision of the Ombudsman against petitioner is thus premature.

WHEREFORE, the respondents are ordered to reinstate effective immediately the petitioner to the position of Governor of the Province of Pampanga.  This case is hereby remanded to the Court of Appeals for resolution of the appeal in CA-GR. SP No. 564744 on the merits.  Said court is hereby directed to resolve the same with utmost deliberate dispatch.

This is without prejudice to the promulgation of an extended decision.”

From this 5 April 2000 Resolution, the Offices of the Solicitor-General and the Ombudsman filed the instant motions for reconsideration.

The sole issue addressed by our 5 April 2000 Resolution is whether or not the decision of the Office of the Ombudsman finding herein petitioner administratively liable for misconduct and imposing upon him a penalty of one (1) year suspension without pay is immediately executory pending appeal.

Petitioner was administratively charged for misconduct under the provisions of R.A. 6770, the Ombudsman Act of 1989.  Section 27 of the said Act provides as follows:

“Section 27. Effectivity and Finality of Decisions. – All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on the following grounds:

X X X

Findings of fact of the Office of the Ombudsman when supported by substantial evidence are conclusive.  Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month’s salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.”

The Rules of Procedure of the Office of the Ombudsman likewise contain a similar provision.  Section 7, Rule III of the said Rules provides as follows:

“Sec. 7. Finality of Decision – where the respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final and unappealable.  In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27 of R.A. 6770.”

It is clear from the above provisions that the punishment imposed upon petitioner, i.e. suspension without pay for one year, is not among those listed as final and unappealable, hence, immediately executory.  Section 27 states that all provisionary orders of the Office of the Ombudsman are immediately effective and executory; and that  any order, directive or decision of the said Office imposing the penalty of censure or reprimand or suspension of not more than one month’s salary is final and unappealable. As such the legal maxim “inclusion unius est exclusio alterus” finds application.  The express mention of the things included excludes those that are not included. The clear import of these statements taken together is that all other decisions of the Office of the Ombudsman which impose penalties that are not enumerated in the said section 27 are not final, unappealable and immediately executory. An appeal timely filed, such as the one filed in the instant case, will stay the immediate implementation of the decision. This finds support in the Rules of Procedure issued by the Ombudsman itself which states that “(I)n all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari (should now be petition for review under Rule 43) shall have been filed by him as prescribed in Section 27 of R.A. 6770.”

The Office of the Solicitor General insists however that the case of Fabian vs. Desierto has voided Section 27 of R.A. 6770 and Section 7, Rule III of Administrative Order No. 07.  As such, the review of decisions of the Ombudsman in administrative cases is now governed by Rule 43 of the 1997 Rules of Civil Procedure which mandates, under Section 12 thereof, the immediately executory character of the decision or order appealed from.

The contention of the Solicitor General is not well-taken.  Our ruling in the case of Fabian vs. Desierto invalidated Section 27 of Republic Act No. 6770 and Section 7, Rule III of Administrative Order No.07 and any other provision of law implementing the aforesaid Act only insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court. The only provision affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and of Rule 43 of the Rules of Court as the proper mode of appeal.  All other matters included in said section 27, including the finality or non-finality of decisions, are not affected and still stand.

Neither can respondents find support in Section 12, Rule 43 of the 1997 Rules of Civil Procedure which provides as follows:

“Section 12. Effect of Appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.”

On this point, respondents contend that considering the silence of the Ombudsman Act on the matter of execution pending appeal, the above-quoted provision of the Rules of Court, which allegedly mandates the immediate execution of all decisions rendered by administrative and quasi-judicial agencies, should apply suppletorily to the provisions of the Ombudsman Act.  We do not agree.

A judgment becomes “final and executory” by operation of law. Section 27 of the Ombudsman Act provides that any order, directive or decision of the Office of the Ombudsman imposing a penalty of public censure or reprimand, or suspension of not more than one month’s salary shall be final and unappealable.  In all other cases, the respondent therein has the right to appeal to the Court of Appeals within ten (10) days from receipt of the written notice of the order, directive or decision.  In all these other cases therefore, the judgment imposed therein will become final after the lapse of the reglementary period of appeal if no appeal is perfected or, an appeal therefrom having been taken, the judgment in the appellate tribunal becomes final.  It is this final judgment which is then correctly categorized as a “final and executory judgment” in respect to which execution shall issue as a matter of right. In other words, the fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal.  Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.

The general rule is that judgments by lower courts or tribunals become executory only after it has become final and executory, execution pending appeal being an exception to this general rule. It is the contention of respondents however that with respect to decisions of quasi-judicial agencies and administrative bodies, the opposite is true. It is argued that the general rule with respect to quasi-judicial and administrative agencies is that the decisions of such bodies are immediately executory even pending appeal.

The contention of respondents is misplaced. There is no general legal principle that mandates that all decisions of quasi-judicial agencies are immediately executory.  Decisions rendered by the Securities and Exchange Commission and the Civil Aeronautics Board, for example, are not immediately executory and are stayed when an appeal is filed before the Court of Appeals. On the other hand, the decisions of the Civil Service Commission, under the Administrative Code, and the Office of the President under the Local Government Code, which respondents cite, are immediately executory even pending appeal because the pertinent laws under which the decisions were rendered mandate them to be so. The provisions of the last two cited laws expressly provide for the execution pending appeal of their final orders or decisions.  The Local Government Code, under Section 68 thereof provides as follows:

“Section 68.  Execution Pending Appeal. – An appeal shall not prevent a decision from becoming final and executory.  The respondent shall be considered as having been

placed under preventive suspension during the pendency of an appeal in the event he wins such appeal.  In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal.”

Similarly, Book V, Title I, Subtitle A, Chapter 6, Section 47, par. (4) of the Administrative Code of 1987 provides:

 “(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal.”

Where the legislature has seen fit to declare that the decision of the quasi-judicial agency is immediately final and executory pending appeal, the law expressly so provides.

Section 12 of Rule 43 should therefore be interpreted as mandating that the appeal will not stay the award, judgment, final order or resolution unless the law directs otherwise.

Petitioner was charged administratively before the Ombudsman and accordingly the  provisions of the Ombudsman Act should apply in his case.  Section 68 of the Local Government Code only applies to administrative decisions rendered by the Office of the President or the appropriate Sanggunian against elective local government officials.  Similarly, the provision in the Administrative Code of 1987 mandating execution pending review applies specifically to administrative decisions of the Civil Service Commission involving members of the Civil Service.

There is no basis in law for the proposition that the provisions of the Administrative Code of 1987 and the Local Government Code on execution pending review should be applied suppletorily to the provisions of the Ombudsman Act as there is nothing in the Ombudsman Act which provides for such suppletory application. Courts may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided or intended by the lawmakers.  An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion.

And while in one respect, the Ombudsman Law, the Administrative Code of 1987 and the Local Government Code are in pari materia insofar as the three laws relate or deal with public officers, the similarity ends there. It is a principle in statutory construction that where there are two statutes that apply to a particular case, that which was specially designed for the said case must prevail over the other. In the instant case, the acts attributed to petitioner could have been the subject of administrative disciplinary proceedings before the Office of the President under the Local Government Code or before the Office of the Ombudsman under the Ombudsman Act.  Considering however, that petitioner was charged under the Ombudsman Act, it is this law alone which should govern his case.

Respondents, through the Office of the Solicitor General, argue that the ruling against execution pending review of the Ombudsman’s decision grants a one-sided protection to the offender found guilty of misconduct in office and nothing at all to the government as the aggrieved party.  The offender, according to respondents, can just let the case drag on until the expiration of his office or his reelection as by then, the case against him shall become academic and his offense, obliterated.  As such, respondents conclude, the government is left without further remedy and is left helpless in its own fight against graft and corruption.

We find this argument much too speculative to warrant serious consideration. If it perceived  that the fight against graft and corruption is hampered by the inadequacy of the provisions of the Ombudsman Act, the remedy lies not with this Court but by legislative amendment.

As regards the contention of the Office of the Ombudsman that under Sec. 13(8), Article XI of the 1987 Constitution, the Office of the Ombudsman is empowered to “(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law,” suffice it to note that the Ombudsman rules of procedure, Administrative Order No. 07,  mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary or fine equivalent to one month salary are still appealable and hence, not final and executory.  Under these rules, which were admittedly promulgated by virtue of the rule-making power of the Office of the Ombudsman, the decision imposing a penalty of one year suspension without pay on petitioner Lapid is not immediately executory.

WHEREFORE, the Motions for Reconsideration filed by the Office of the Solicitor General and the Office of the Ombudsman are hereby DENIED for lack of merit.

SO ORDERED.

EN BANC

 

G.R. No. 111511 October 5, 1993

ENRIQUE T. GARCIA, ET AL., petitioners, vs.COMMISSION ON ELECTIONS and LUCILA PAYUMO, ET AL., respondents.

Alfonso M. Cruz Law Offices for petitioners.

Romulo C. Felizmeña, Crisostomo Banzon and Horacio Apostol for private respondents.

 

PUNO, J.:

The EDSA revolution of 1986 restored the reality that the people's might is not a myth. The 1987 Constitution then included people power as an article of faith and Congress was mandated to p ass laws for its effective exercise. The Local Government Code of 1991 was enacted providing for two (2) modes of initiating the recall from office of local elective officials who appear to have lost the confidence of the electorate. One of these modes is recall through the initiative of a preparatory recall assembly. In the case at bench, petitioners assail this mode of initiatory recall as unconstitutional. The challenge cannot succeed.

We shall first unfurl the facts.

Petitioner Enrique T. Garcia was elected governor of the province of Bataan in the May 11, 1992 elections. In the early evening of July 1993, some mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the province met at the National Power Corporation compound in Bagac, Bataan. At about 12:30 A.M of the following day, July 2, 1993, they proceeded to the Bagac town plaza where they constituted themselves into a Preparatory Recall Assembly to initiate the recall election of petitioner Garcia. The mayor of Mariveles, Honorable Oscar, de los Reyes, and the mayor of Dinalupihan, the Honorable Lucila Payumo, were chosen as Presiding Officer and Secretary of the Assembly, respectively. Thereafter, the Vice-Mayor of Limay, the Honorable Ruben Roque, was recognized and he moved that a resolution be passed for the recall of the petitioner on the ground of "loss of confidence." 1 The motion was "unanimously seconded." 2 The resolution states:

RESOLUTION NO. 1

Whereas, the majority of all the members of the Preparatory Recall Assembly in the Province of Bataan have voluntarily constituted themselves for the purpose of the recall of the incumbent provincial governor of the province of Bataan, Honorable Enrique T.

Garcia pursuant to the provisions of Section 70, paragraphs (a), (b) and (c) of Republic Act 7160, otherwise known as the Local Government Code of 1991;

Whereas, the total number of all the members of the Preparatory Recall Assembly in the province of Bataan is One Hundred and Forty- Six (146) composed of all mayors, vice-mayors and members of the Sangguniang Bayan of all the 12 towns of the province of Bataan;

Whereas, the majority of all the members of the Preparatory Recall Assembly, after a serious and careful deliberation have decided to adopt this resolution for the recall of the incumbent provincial governor Garcia for loss of confidence;

Now, therefore, be it resolved, as it is hereby resolved that having lost confidence on the incumbent governor of Bataan, Enrique T. Garcia, recall proceedings be immediately initiated against him;

Resolved further, that copy of this resolution be furnished the Honorable Commission on Elections, Manila and the Provincial Election Supervisor, Balanga, Bataan.

One hundred forty-six (146) names appeared in Resolution No. 1 but only eighty (80) carried the signatures of the members of the PRA. Of the eighty (80) signatures, only seventy-four (74) were found genuine. 3 The PRAC of the province had a membership of one hundred forty-four (144) 4 and its majority was seventy-three (73).

On July 7, 1993, petitioners filed with the respondent COMELEC a petition to deny due course to said Resolution No. 1. Petitioners alleged that the PRAC failed to comply with the "substantive and procedural requirement" laid down in Section 70 of R.A. 7160, otherwise known as the Local Government Code of 1991. In a per curiam Resolution promulgated August 31, 1993, the respondent COMELEC dismissed the petition and scheduled the recall elections for the position of Governor of Bataan on October 11 , 1993. Petitioners then filed with Us a petition for certiorari and prohibition with writ of preliminary injunction to annul the said Resolution of the respondent COMELEC on various grounds. They urged that section 70 of R.A. 7160 allowing recall through the initiative of the PRAC is unconstitutional because: (1) the people have the sole and exclusive right to decide whether or not to initiate proceedings, and (2) it violated the right of elected local public officials belonging to the political minority to equal protection of law. They also argued that the proceedings followed by the PRAC in passing Resolution No. I suffered from numerous defects, the most fatal of which was the deliberate failure to send notices of the meeting to sixty-five (65) members of the assembly. On September 7, 1993, We required the respondents to file their Comments within a non-extendible period of ten (10) days. 5 On September 16, 1993, We set petition for hearing on September 21, 1993 at 11 A.M. After the hearing, We granted the petition on ground that the sending of selective notices to members of the PRAC violated the due process protection of the Constitution and fatally flawed the enactment of Resolution No. 1. We ruled:

xxx xxx xxx

After deliberation, the Court opts not to resolve the alleged constitutional infirmity of sec. 70 of R.A. No. 7160 for its resolution is not unavoidable to decide the merits of the petition. The petition can be decided on the equally fundamental issues of: (1) whether or not all the members of the Preparatory Recall Assembly were notified of its meeting; and (2) assuming lack of notice, whether or not it would vitiate the proceedings of the assembly including its Resolution No. 1.

The failure to give notice to all members of the assembly, especially to the members known to be political allies of petitioner Garcia was admitted by both counsels of the respondents. They did not deny that only those inclined to agree with the resolution of recall were notified as a matter of political strategy and security. They justified these selective notices on the ground that the law does not specifically mandate the giving of notice.

We reject this submission of the respondents. The due process clause of the Constitution requiring notice as an element of fairness is inviolable and should always be considered as part and parcel of every law in case of its silence. The need for notice to all the members of the assembly is also imperative for these members represent the different sectors of the electorate of Bataan. To the extent that they are not notified of the meeting of the assembly, to that extent is the sovereign voice of the people they represent nullified. The resolution to recall should articulate the majority will of the members of the assembly but the majority will can be genuinely determined only after all the members of the assembly have been given a fair opportunity to express the will of their constituents. Needless to stress, the requirement of notice is indispensable in determining the collective wisdom of the members of the Preparatory Recall Assembly. Its non-observance is fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan.

The petition raises other issues that are not only prima impressionis but also of transcendental importance to the rightful exercise of the sovereign right of the people to recall their elected officials. The Court shall discuss these issues in a more extended decision.

In accord with this Resolution, it appears that on September 22, 1993, the Honorable Mayor of Dinalupihan, Oscar de los Reyes again sent Notice of Session to the members of the PRAC to "convene in session on September 26, 1993 at the town plaza of Balanga, Bataan at 8:30 o'clock in the morning." 6 From news reports, the PRAC convened in session and eighty-seven (87) of its members once more passed a resolution calling for the recall of petitioner Garcia. 7 On September 27, 1993, petitioners filed with Us a Supplemental Petition and Reiteration of Extremely Urgent Motion for a resolution of their contention that section 70 of R.A. 7160 is unconstitutional.

We find the original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly initiate the recall of local elective officials as bereft of merit.

Every law enjoys the presumption of validity. The presumption rests on the respect due to the wisdom, integrity, and the patriotism of the legislative, by which the law is passed, and the Chief Executive, by whom the law isapproved, 8 For upholding the Constitution is not the responsibility of the judiciary alone but also the duty of the legislative and executive. 9 To strike down a law as

unconstitutional, there must be a clear and unequivocal showing that what the fundamental law prohibits, the statute permits. 10 The annulment cannot be decreed on a doubtful, and arguable implication. The universal rule of legal hermeneutics is that all reasonable doubts should be resolved in favor of the constitutionality of a law. 11

Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint, the power is implied in all governmental operations. Such power has been held to be indispensable for the proper administration of public affairs. 12 Not undeservedly, it is frequently described as a fundamental right of the people in a representative democracy. 13

Recall is a mode of removal of elective local officials made its maiden appearance in our 1973 Constitution. 14 It was mandated in section 2 of Article XI entitled Local Government, viz:

Sec. 2. The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, powers, functions, and duties of local officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose. (Emphasis supplied)

The Batasang Pambansa then enacted BP 337 entitled "The Local Government Code of 1983." Section 54 of its Chapter 3 provided only one mode of initiating the recall elections of local elective officials, i.e., by petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned, viz:

Sec. 54. By Whom Exercised; Requisites. — (1) The power of recall shall be exercised by the registered voters of the unit to which the local elective official subject to such recall belongs.

(2) Recall shall be validly initiated only upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned based on the election in which the local official sought to be recalled was elected.

Our legal history does not reveal any instance when this power of recall as provided by BP 337 was exercised by our people.

In February 1986, however, our people more than exercised their right of recall for they resorted to revolution and they booted of office the highest elective officials of the land.

The successful use of people power to remove public officials who have forfeited the trust of the electorate led to its firm institutionalization in the 1987 Constitution. Its Article XIII expressly recognized the Role and Rights of People's Organizations, viz:

Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.

People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure.

Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by laws, facilitate the establishment of adequate consultation mechanisms.

Section 3 of its Article X also reiterated the mandate for Congress to enact a local government code which "shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative andreferendum. . .," viz :

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsible and accountable local government structure instituted through a system of decentralization with effective mechanisms 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.

In response to this constitutional call, Congress enacted R.A. 7160, otherwise known as the Local Government Code of 1991, which took effect on January 1, 1992. In this Code, Congress provided for a second mode of initiating the recall process through a preparatory recall assembly which in the provincial level is composed of all mayors, vice-mayors and sanggunian members of the municipalities and component cities. We quote the pertinent provisions of R.A. 7160, viz:

CHAPTER 5 — RECALL

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

Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to which the local elective official subject to such recall belongs.

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

(1) Provincial Level. — all mayors, vice-mayors and sanggunian members of the municipalities and component cities;

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

(3) Legislative District level. — In cases where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; in cases where sangguniang panglungsod members are elected by district , all elective barangay officials in the district; and

(4) Municipal level. — All punong barangay and sangguniang barangay members in the municipality.

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

(d) Recall of any elective provincial, city, municipal, or barangay official may be validly initiated upon petition of at least twenty-five (25) percent of the total number of registered voters in the local government unit concerned during the election which in the local official sought to be recalled was elected.

Sec. 71. Election Recall — Upon the filing of a valid resolution petition for with the appropriate local office of the Comelec, the Commission or its duly authorized representative shall set the date of the election on recall, which shall not be later than thirty (30) days after the filing of the resolution or petition recall in the case of the barangay, city, or municipal officials, forty-five (45) days in the case of provincial officials. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon.

Sec. 72. Effectivity of Recall. — The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office.

Sec. 73. Prohibition from Resignation. — The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress.

Sec. 74. Limitations on Recall. — (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding regular election.

A reading of the legislative history of these recall provisions will reveal that the idea of empowering a preparatory recall assembly to initiate the recall from office of local elective officials originated from the House of Representatives A reading of the legislative history of these recall provisions will reveal that the idea of empowering a preparatory recall assembly to initiate the recall from office of local elective officials, originated from the House of Representatives and not the Senate. 15 The legislative records reveal there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its

expenses. 16 Our lawmakers took note of the undesirable fact that the mechanism initiating recall by direct action of the electorate was utilized only once in the City of Angeles, Pampanga, but even this lone attempt to recall the city mayor failed. Former Congressman Wilfredo Cainglet explained that this initiatory process by direct action of the people was too cumbersome, too expensive and almost impossible to implement. 17 Consequently, our legislators added in the a second mode of initiating the recall of local officials thru a preparatory recall assembly. They brushed aside the argument that this second mode may cause instability in the local government units due to its imagined ease.

We have belabored the genesis of our recall law for it can light up many of the unillumined interstices of the law. In resolving constitutional disputes, We should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs. Prescinding from this proposition, We shall now resolve the contention of petitioners that the alternative mode of allowing a preparatory recall assembly to initiate the process of recall is unconstitutional.

It is first postulated by the petitioners that "the right to recall does not extend merely to the prerogative of the electorate to reconfirm or withdraw their confidence on the official sought to be recalled at a special election. Such prerogative necessarily includes the sole and exclusive right to decide on whether to initiate a recall proceedings or not." 18

We do not agree. Petitioners cannot point to any specific provision of the Constitution that will sustain this submission. To be sure, there is nothing in the Constitution that will remotely suggest that the people have the "sole and exclusive right to decide on whether to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a single mode, of initiating recall elections. 19 Neither did it prohibit the adoption of multiple modes of initiating recall elections. The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local government code which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum . . ." By this constitutional mandate, Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates. The power given was to select which among the means and methods of initiating recall elections are effective to carry out the judgment of the electorate. Congress was not straightjacketed to one particular mechanism of initiating recall elections. What the Constitution simply required is that the mechanisms of recall, whether one or many, to be chosen by Congress should be effective. Using its constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people. Congress has made its choice as called for by the Constitution and it is not the prerogative of this Court to supplant this judgment. The choice may be erroneous but even then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By the principle of separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law. 20

Petitioners also positive thesis that in passing Resolution 1, the Bataan Preparatory Recall Assembly did not only initiate the process of recall but had de facto recalled petitioner Garcia from office, a power reserved to the people alone. To quote the exact language of the petitioners: "The initiation of a recall through the PRA effectively shortens and ends the term of the incumbent local officials. Precisely, in the case of Gov. Garcia, an election was scheduled by the COMELEC on 11 October 1993 to determine who has the right to assume the unexpired portion of his term of office which should have been until June 1995. Having been relegated to the status of a mere candidate for the same position of governor (by operation of law) he has, therefore, been effectively recalled." 21 In their Extremely Urgent Clarificatory Manifestation, 22 petitioners put the proposition more bluntly stating that a "PRA resolution of recall is the re call itself."

Again, the contention cannot command our concurrence. Petitioners have misconstrued the nature of the initiatory process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the people. This is a misimpression for initiation by the PRAC is also initiation by the people, albeit done indirectly through their representatives. It is not constitutionally impermissible for the people to act through their elected representatives. Nothing less than the paramount task of drafting our Constitution is delegated by the people to their representatives, elected either to act as a constitutional convention or as a congressional constituent assembly. The initiation of a recall process is a lesser act and there is no rhyme or reason why it cannot be entrusted to and exercised by the elected representatives of the people. More far out is petitioners' stance that a PRA resolution of recall is the recall itself. It cannot be seriously doubted that a PRA resolution of recall merely, starts the process. It is part of the process but is not the whole process. This ought to be self evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will not recall its subject official. Likewise, a PRA resolution of recall that is rejected by the people in the election called for the purpose bears no effect whatsoever. The initiatory resolution merely sets the stage for the official concerned to appear before the tribunal of the people so he can justify why he should be allowed to continue in office. Before the people render their sovereign judgment, the official concerned remains in office but his right to continue in office is subject to question. This is clear in section 72 of the Local Government Code which states that "the recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall."

We shall next settle the contention of petitioners that the disputed law infracts the equal protection clause of the Constitution. Petitioners asseverate:

5.01.2. It denied petitioners the equal protection of the laws for the local officials constituting the majority party can constitute itself into a PRA and initiate the recall of a duly elected provincial official belonging to the minority party thus rendering ineffectual his election by popular mandate. Relevantly, the assembly could, to the prejudice of the minority (or even partyless) incumbent official, effectively declare a local elective position vacant (and demand the holding of a special election) for purely partisan political ends regardless of the mandate of the electorate. In the case at bar, 64 of the 74 signatories to

the recall resolution have been political opponents of petitioner Garcia, not only did they not vote for him but they even campaigned against him in the 1992 elections.

Petitioners' argument does not really assail the law but its possible abuse by the members of the PRAC while exercising their right to initiate recall proceedings. More specifically, the fear is expressed that the members of the PRAC may inject political color in their decision as they may initiate recall proceedings only against their political opponents especially those belonging to the minority. A careful reading of the law, however, will ineluctably show that it does not give an asymmetrical treatment to locally elected officials belonging to the political minority. First to be considered is the politically neutral composition of the preparatory recall assembly. Sec. 70 (b) of the Code provides:

Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to which the local elective official subject to such recall belongs.

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

(1) Provincial level. — All mayors, vice-mayors and sanggunian members of the municipalities and component cities;

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

(3) Legislative District Level. — In cases where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panglungsod members are elected by district, all elective barangay officials in the district; and

(4) Municipal level. — All punong barangay and sangguniang barangay members in the municipality.

Under the law, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties. No significance is given to the political affiliation of its members. Secondly, the preparatory recall assembly, at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages multi-party system for the existence of opposition parties is indispensable to the growth and nurture of democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against local officials belonging to the minority.

The fear that a preparatory recall assembly may be dominated by a political party and that it may use its power to initiate the recall of officials of opposite political persuasions, especially those belonging to the minority, is not a ground to strike down the law as unconstitutional. To be sure, this argument has long been in disuse for there can be no escape from the reality that all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power to an individual or entity. To deny power simply because it can be abused by the grantee is to render government powerless and no people need an impotent government. There is no democratic government that can operate on the basis of fear and distrust of its officials, especially those elected by the people themselves. On the contrary, all our laws assume that officials, whether appointed or elected, will act in good faith and will perform the duties of their office. Such presumption follows the solemn oath that they took after assumption of office, to faithfully execute all our laws.

Moreover, the law instituted safeguards to assure that the initiation of the recall process by a preparatory recall assembly will not be corrupted by extraneous influences. As explained above, the diverse and distinct composition of the membership of a preparatory recall assembly guarantees that all the sectors of the electorate province shall be heard. It is for this reason that in Our Resolution of September 21, 1993, We held that notice to all the members of the recall assembly is a condition sine qua non to the validity of its proceedings. The law also requires a qualified majority of all the preparatory recall assembly members to convene in session and in a public place. It also requires that the recall resolution by the said majority must be adopted during its session called for the purpose. The underscored words carry distinct legal meanings and purvey some of the parameters limiting the power of the members of a preparatory recall assembly to initiate recall proceedings. Needless to state, compliance with these requirements is necessary, otherwise, there will be no valid resolution of recall which can be given due course by the COMELEC.

Furthermore, it cannot be asserted with certitude that the members of the Bataan preparatory recall assembly voted strictly along narrow political lines. Neither the respondent COMELEC nor this Court made a judicial inquiry as to the reasons that led the members of the said recall assembly to cast a vote of lack of confidence against petitioner Garcia. That inquiry was not undertaken for to do so would require crossing the forbidden borders of the political thicket. Former Senator Aquilino Pimentel, Jr., a major author of the subject law in his book The Local Government Code of 1991: The Key to National Development, stressed the same reason why the substantive content of a vote of lack of confidence is beyond any inquiry, thus:

There is only one ground for the recall of local government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective officials without specifying any particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are the subject of any recall petition.

In the case of Evardone vs. Commission on Elections, et al., 204 SCRA 464, 472 (1991), the Court ruled that "loss of confidence" as a ground for recall is a political question. In

the words of the Court, "whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent mayor is a political question.

Any assertion therefore that the members of the Bataan preparatory recall assembly voted due to their political aversion to petitioner Garcia is at best a surmise.

Petitioners also contend that the resolution of the members of the preparatory recall assembly subverted the will of the electorate of the province of Bataan who elected petitioner Garcia with a majority of 12,500 votes. Again, the contention proceeds from the erroneous premise that the resolution of recall is the recall itself. It refuses to recognize the reality that the resolution of recall is a mere proposal to the electorate of Bataan to subject petitioner to a new test of faith. The proposal will still be passed upon by the sovereign electorate of Bataan. As this judgment has yet to be expressed, it is premature to conclude that the sovereign will of the electorate of Bataan has been subverted. The electorate of Bataan may or may not recall petitioner Garcia in an appropriate election. If the electorate re-elects petitioner Garcia, then the proposal to recall him made by the preparatory recall assembly is rejected. On the other hand, if the electorate does not re-elect petitioner Garcia, then he has lost the confidence of the people which he once enjoyed. The judgment will write finis to the political controversy. For more than judgments of courts of law, the judgment of the tribunal of the people is final for "sovereignty resides in the people and all government authority emanates from them."

In sum, the petition at bench appears to champion the sovereignty of the people, particularly their direct right to initiate and remove elective local officials thru recall elections. If the petition would succeed, the result will be a return to the previous system of recall elections which Congress found should be improved. The alternative mode of initiating recall proceedings thru a preparatory recall assembly is, however, an innovative attempt by Congress to remove impediments to the effective exercise by the people of their sovereign power to check the performance of their elected officials. The power to determine this mode was specifically given to Congress and is not proscribed by the Constitution.

IN VIEW WHEREOF, the original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly to initiate the recall process are dismissed for lack of merit. This decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Romero, Nocon and Bellosillo, JJ., concur.

Griño-Aquino, J., is on leave.

 

 

 

Separate Opinions

 

QUIASON, J, concurring:

Recall is a process for the removal of an official during his term by a vote of a specified number of citizens at an election called for such purpose (Wallaca v. Tripp, 358 Mich. 668, 101 NW 2d 312).

The process may be provided for in a constitution or in the absence of constitutional empowerment, in ordinary statutes. In the latter case, legislature enacts a system for recall in the exercise of its general control of the removal of public officer (In re Bower, 41 III. 777, 242 No. 2D, 252, Dunhan v. Ardery, 43 OKI 619, 142 p. 331).

Recall statutes enacted without express constitutional mandate have been upheld against claims (a) that they are obnoxious to a republican form of government (Dunhan v. Ardery, supra) or (b) that they constitute a denial of due process or a bill of attainder (State ex rel Topping v. Houston, 94 Neb. 445, 643 NW 796, Roberts v. Brown, 73 Tenn App. 567, 310 SW 2d. 197).

The procedure in the recall of an official may be prescribed in the constitution itself or in statutory provisions relating to the subject. In passing on the construction of recall statutes, the courts have enforced them according to their terms and have disclaimed all concern as to their wisdom and policy (State ex rel Clark v. Harris, 74 Or 573, 144 p. 109).

The 1987 Constitution does not prescribe the procedure in the recall of elective officials.

The intent is clear that the 1987 Constitution leaves it to Congress to provide the recall mechanism without any pre-ordained restrictions. The broad powers of Congress in pescribing the procedure for recall include the determination as to the number of electors needed to initiate the recall, the method of voting of the electors, the time and place of the voting and whether the process includes the election of the successor of the recalled official.

In the Local Government Code of 1991 (R.A. 7160), Congress adopted an alternative procedure for initiating the recall and made it as a mere stage of the recall process.

Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation of the recall; and secondly, in the election of the person to occupy the office subject of the recall. This is in contrast with the first recall

statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate were denied the opportunity to vote for the retention of the official subject of the recall.

In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are all registered voters of the province. If they constitute less than one per cent of the voters in the province, that miniscule number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with t he legislature, not with the judiciary.

VITUG, J., concurring:

I fully concur with the disquisition made by Mr. Justice Reynato S. Puno, and I agree that it is not within the province of the courts to question the wisdom of, let alone supplant, legislative judgments laid down by Congress to the extent of its constitutional authority and mandate.

It may not be amiss, however, to caution against any idea of omnipotence in wielding the "power of recall" conferred to the "Preparatory Recall Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative duty to exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority, appropriate judicial recourse to, and corrective relief by, this Court will not be denied.

DAVIDE, JR., J., dissenting:

The paramount issue in this case is the constitutionality of that part of Section 70 of the Local Government Code of 1991 (R.A. 7160) which grants to a body known as the preparatory recall assembly (PRA) the power to initiate recall proceedings. 1 At the provincial level, as in this case, the PRA is composed of all mayors, vice-mayors and sanggunian members of the municipalities and component cities in the province.

The issue can only be resolved by inquiring into the nature or essence of recall. The system of recall was adopted for the first time in our jurisdiction in the 1973 Constitution. Section 2 of Article XI thereof provided:

Sec. 2 The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a majority vote of all its members, defining a more responsive and accountable local government structure with an effective system of recall. . . .

This section was incorporated, with some modifications, in the 1987 Constitution to emphasize the thrust on decentralization and to provide for a mechanism of initiative and referendum. Section 3 of Article X thereof provides as follows:

Sec. 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 mechanisms of recall, initiative, and referendum, . . .

Recall is of American origin. In 1951, the constitutions of twelve (12) States of the American union contained provisions on recall. Oregon was the first to adopt it in 1908, although it had been part of the charter of the city of Los Angeles five years earlier. 2

Wallace vs. Tripp 3 considers it a fundamental right reserved to the people of the state by the Constitution, and Bernzen vs. City of Boulder 4 declares it, like the power of initiative and referendum, to be a fundamental right of citizens within a representative democracy. For its definition, Wallace quotes Websters's New International Dictionary, 2nd ed., to wit:

The right or procedure by which a public official, commonly a legislative or executive official, may be removed from office, before the end of his term of office, by a vote of the people to be taken on the filing of a petition signed by the required number of qualified voters (commonly 25%).

The principle underlying recall is stated in Dunham vs. Ardery 5 as follows:

We understand that the principle underlying the recall of public officers means that the people may have an effective and speed remedy to remove an official who is not giving satisfaction — one who they do not want to continue in office, regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates. If the policies pursued do not meet the approval of a majority of the people, it is the underlying principle of the recall doctrine to permit them to expeditiously recall the official, without form or ceremony, as provided for in the charter.

Since recall is constitutionally mandated in our jurisdiction, it goes without saying that it is a power reserved to the people to be exercised by the registered voters. It was for this reason that, to implement the power of recall under the 1973 Constitution, Batas Pambansa Blg. 337 (the old Local Government Code) provided in Section 54 thereof as follows:

Sec.54. By whom exercised; Requisites. — (1) The power of recall shall be exercised by the registered voters of the unit to which the local elective official subject to such recall belongs.

(2) Recall shall be validly initiated only upon petition of a least twenty-five percent of the total number of registered voters in the local government unit concerned based on the local sought to be recalled was elected.

To implement the 1987 Constitution provision on recall, the Local Government Code of 1991 likewise expressly provides in Section 69 as follows:

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

Indubitably then, the power of recall is exclusively vested in the electorate or, more specifically, in the registered voters of the local government unit concerned. In the United States, from where we patterned our system of recall, the initiation of the recall proceeding is always done by a certain percentage of the voters. Thus:

. . . The required percentage ranges from ten in Kansas to thirty in North Dakota, but twenty-five is by far the most common. 6

In both B.P. Blg. 337 and the Local Government Code of 1991, our Legislature fixed it at twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. 7 It follows then that said power cannot be shared with any other group of persons or officials. Any such sharing would impair or negate the exclusive character of the power. It is indivisible. Its essential, nay indispensable, components are the initiation and the election, both of which are substantive in character. By reason of its exclusive and the indivisible character, both components must be exercised by the electorate alone. The reason why the initiation phase can and must be done only by the electorate is not difficult to understand. If it can also be done by another body, such as the PRA in this case, the exclusiveness or indivisibility of the power is necessarily impaired or negated. In such a case, the electorate is by passed and the resulting recall petition or resolution can by no means be an authentic, free, and voluntary act of the electorate, which characteristics are indicia of the exercise of a power. The power to initiate, being a component of the power or recall, necessarily includes the power not to initiate. The power to initiate becomes meaningless if another body is authorized to do it for the electorate. Worse, since the second component of the power of recall, i.e., the recall election, does not come into play without the recall petition, it follows that where the petition is not done through the initiative of the electorate because the latter chooses not to exercise its power to recall or finds no reason therefor, that election becomes, as to the electorate would in effect be compelled to participate in a political exercise it neither called for nor decided to have.

Hence, the fullness of the power of recall precludes the delegation of the corresponding authority to initiate it to any entity other than the electorate, especially where the delegation unduly infringes upon and impairs such power as in this case.

I might add that since Congress decided to retain the 25% requirement for the traditional method of initiating recall — which is the method in full accord and perfect harmony with the true essence of recall — the provision for an alternative method, i.e., recall resolution by a mere majority of the PRA, is subtly designed to negate, if not altogether defeat, the power of the electorate and to substitute the will of a very small group for the will of the electorate. Admittedly, it is extremely difficult to meet the 25% requirement. On the other hand, it is far too easy, and at times politically convenient and expedient, to get a majority of the members of the PRA to initiate a recall proceeding. The choice then is all too obvious. Indeed, this is the clear message of the admission by former Congressman Wilfredo Cainglet that the 25% requirement rendered the traditional method ineffective thus necessitating the creation of an alternative method.

But the alternative method besmirches the sanctity of the recall process. If 25% was found ineffective, then the remedy should have been to reduce it to, say, 15% or 20%.

The conclusion then is inevitable that the provision on the preparatory recall assembly in Section 70 of the Local Government Code of 1991 is unconstitutional because it amounts to an undue delegation of the power of recall.

I vote to grant the petition.

Melo, J., concur.

 

 

# Separate Opinions

QUIASON, J, concurring:

Recall is a process for the removal of an official during his term by a vote of a specified number of citizens at an election called for such purpose (Wallaca v. Tripp, 358 Mich. 668, 101 NW 2d 312).

The process may be provided for in a constitution or in the absence of constitutional empowerment, in ordinary statutes. In the latter case, legislature enacts a system for recall in the exercise of its general control of the removal of public officer (In re Bower, 41 III. 777, 242 No. 2D, 252, Dunhan v. Ardery, 43 OKI 619, 142 p. 331).

Recall statutes enacted without express constitutional mandate have been upheld against claims (a) that they are obnoxious to a republican form of government (Dunhan v. Ardery, supra) or (b) that they constitute a denial of due process or a bill of attainder (State ex rel Topping v. Houston, 94 Neb. 445, 643 NW 796, Roberts v. Brown, 73 Tenn App. 567, 310 SW 2d. 197).

The procedure in the recall of an official may be prescribed in the constitution itself or in statutory provisions relating to the subject. In passing on the construction of recall statutes, the courts have enforced them according to their terms and have disclaimed all concern as to their wisdom and policy (State ex rel Clark v. Harris, 74 Or 573, 144 p. 109).

The 1987 Constitution does not prescribe the procedure in the recall of elective officials.

The intent is clear that the 1987 Constitution leaves it to Congress to provide the recall mechanism without any pre-ordained restrictions. The broad powers of Congress in pescribing the procedure for recall include the determination as to the number of electors needed to initiate the recall, the method of voting of the electors, the time and

place of the voting and whether the process includes the election of the successor of the recalled official.

In the Local Government Code of 1991 (R.A. 7160), Congress adopted an alternative procedure for initiating the recall and made it as a mere stage of the recall process.

Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation of the recall; and secondly, in the election of the person to occupy the office subject of the recall. This is in contrast with the first recall statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate were denied the opportunity to vote for the retention of the official subject of the recall.

In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are all registered voters of the province. If they constitute less than one per cent of the voters in the province, that miniscule number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with t he legislature, not with the judiciary.

VITUG, J., concurring:

I fully concur with the disquisition made by Mr. Justice Reynato S. Puno, and I agree that it is not within the province of the courts to question the wisdom of, let alone supplant, legislative judgments laid down by Congress to the extent of its constitutional authority and mandate.

It may not be amiss, however, to caution against any idea of omnipotence in wielding the "power of recall" conferred to the "Preparatory Recall Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative duty to exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority, appropriate judicial recourse to, and corrective relief by, this Court will not be denied.

DAVIDE, JR., J., dissenting:

The paramount issue in this case is the constitutionality of that part of Section 70 of the Local Government Code of 1991 (R.A. 7160) which grants to a body known as the preparatory recall assembly (PRA) the power to initiate recall proceedings. 1 At the provincial level, as in this case, the PRA is composed of all mayors, vice-mayors and sanggunian members of the municipalities and component cities in the province.

The issue can only be resolved by inquiring into the nature or essence of recall. The system of recall was adopted for the first time in our jurisdiction in the 1973 Constitution. Section 2 of Article XI thereof provided:

Sec. 2 The Batasang Pambansa shall enact a local government code which may not thereafter be amended except by a majority vote of all its members, defining a more

responsive and accountable local government structure with an effective system of recall. . . .

This section was incorporated, with some modifications, in the 1987 Constitution to emphasize the thrust on decentralization and to provide for a mechanism of initiative and referendum. Section 3 of Article X thereof provides as follows:

Sec. 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 mechanisms of recall, initiative, and referendum, . . .

Recall is of American origin. In 1951, the constitutions of twelve (12) States of the American union contained provisions on recall. Oregon was the first to adopt it in 1908, although it had been part of the charter of the city of Los Angeles five years earlier. 2

Wallace vs. Tripp 3 considers it a fundamental right reserved to the people of the state by the Constitution, and Bernzen vs. City of Boulder 4 declares it, like the power of initiative and referendum, to be a fundamental right of citizens within a representative democracy. For its definition, Wallace quotes Websters's New International Dictionary, 2nd ed., to wit:

The right or procedure by which a public official, commonly a legislative or executive official, may be removed from office, before the end of his term of office, by a vote of the people to be taken on the filing of a petition signed by the required number of qualified voters (commonly 25%).

The principle underlying recall is stated in Dunham vs. Ardery 5 as follows:

We understand that the principle underlying the recall of public officers means that the people may have an effective and speed remedy to remove an official who is not giving satisfaction — one who they do not want to continue in office, regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates. If the policies pursued do not meet the approval of a majority of the people, it is the underlying principle of the recall doctrine to permit them to expeditiously recall the official, without form or ceremony, as provided for in the charter.

Since recall is constitutionally mandated in our jurisdiction, it goes without saying that it is a power reserved to the people to be exercised by the registered voters. It was for this reason that, to implement the power of recall under the 1973 Constitution, Batas Pambansa Blg. 337 (the old Local Government Code) provided in Section 54 thereof as follows:

Sec.54. By whom exercised; Requisites. — (1) The power of recall shall be exercised by the registered voters of the unit to which the local elective official subject to such recall belongs.

(2) Recall shall be validly initiated only upon petition of a least twenty-five percent of the total number of registered voters in the local government unit concerned based on the local sought to be recalled was elected.

To implement the 1987 Constitution provision on recall, the Local Government Code of 1991 likewise expressly provides in Section 69 as follows:

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

Indubitably then, the power of recall is exclusively vested in the electorate or, more specifically, in the registered voters of the local government unit concerned. In the United States, from where we patterned our system of recall, the initiation of the recall proceeding is always done by a certain percentage of the voters. Thus:

. . . The required percentage ranges from ten in Kansas to thirty in North Dakota, but twenty-five is by far the most common. 6

In both B.P. Blg. 337 and the Local Government Code of 1991, our Legislature fixed it at twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected. 7 It follows then that said power cannot be shared with any other group of persons or officials. Any such sharing would impair or negate the exclusive character of the power. It is indivisible. Its essential, nay indispensable, components are the initiation and the election, both of which are substantive in character. By reason of its exclusive and the indivisible character, both components must be exercised by the electorate alone. The reason why the initiation phase can and must be done only by the electorate is not difficult to understand. If it can also be done by another body, such as the PRA in this case, the exclusiveness or indivisibility of the power is necessarily impaired or negated. In such a case, the electorate is by passed and the resulting recall petition or resolution can by no means be an authentic, free, and voluntary act of the electorate, which characteristics are indicia of the exercise of a power. The power to initiate, being a component of the power or recall, necessarily includes the power not to initiate. The power to initiate becomes meaningless if another body is authorized to do it for the electorate. Worse, since the second component of the power of recall, i.e., the recall election, does not come into play without the recall petition, it follows that where the petition is not done through the initiative of the electorate because the latter chooses not to exercise its power to recall or finds no reason therefor, that election becomes, as to the electorate would in effect be compelled to participate in a political exercise it neither called for nor decided to have.

Hence, the fullness of the power of recall precludes the delegation of the corresponding authority to initiate it to any entity other than the electorate, especially where the delegation unduly infringes upon and impairs such power as in this case.

I might add that since Congress decided to retain the 25% requirement for the traditional method of initiating recall — which is the method in full accord and perfect harmony with the true essence of recall — the provision for an alternative method, i.e., recall resolution by a mere majority of the PRA, is subtly designed to negate, if not altogether defeat, the power of the electorate and to substitute the will of a very small

group for the will of the electorate. Admittedly, it is extremely difficult to meet the 25% requirement. On the other hand, it is far too easy, and at times politically convenient and expedient, to get a majority of the members of the PRA to initiate a recall proceeding. The choice then is all too obvious. Indeed, this is the clear message of the admission by former Congressman Wilfredo Cainglet that the 25% requirement rendered the traditional method ineffective thus necessitating the creation of an alternative method. But the alternative method besmirches the sanctity of the recall process. If 25% was found ineffective, then the remedy should have been to reduce it to, say, 15% or 20%.

The conclusion then is inevitable that the provision on the preparatory recall assembly in Section 70 of the Local Government Code of 1991 is unconstitutional because it amounts to an undue delegation of the power of recall.

I vote to grant the petition.

Melo, J., concur.

EN BANC

G.R. No. 139821            January 30, 2002

DR. ELEANOR A. OSEA, petitioner, vs. DR. CORAZON E. MALAYA, respondent.

YNARES-SANTIAGO, J.:

This is a petition for review from the decision of the Court of Appeals dated August 6, 1999 in CA-G.R. SP No. 49204.1

On November 20, 1997, petitioner filed Protest Case No. 91120-004 with the Civil Service Commission.2 She averred that she was appointed as Officer-in-Charge, Assistant Schools Division Superintendent of Camarines Sur, by then Secretary Ricardo T. Gloria of the Department of Education, Culture and Sports, upon the endorsement of the Provincial School Board of Camarines Sur; that despite the recommendation of Secretary Gloria, President Fidel V. Ramos appointed respondent to the position of Schools Division Superintendent of Camarines Sur; that respondent's appointment was made without prior consultation with the Provincial School Board, in violation of Section 99 of the Local Government Code of 1991. Hence, petitioner prayed that respondent's appointment be recalled and set aside for being null and void.

The pertinent portion of Section 99 of Republic Act No. 7610, also known as the Local Government Code of 1991, states:

Sec. 99. Functions of Local School Boards. --- The provincial, city or municipal school board shall:

xxx           xxx           xxx.

The Department of Education, Culture and Sports shall consult the local school boards on the appointment of division superintendents, district supervisors, school principals, and other school officials.

On March 31, 1998, the Civil Service Commission issued Resolution No. 980699, dismissing petitioner's protest-complaint.3 The Civil Service Commission found that on September 13, 1996, President Ramos appointed respondent, who was then Officer-in-Charge Schools Division Superintendent of Iriga City, as Schools Division Superintendent without any specific division. Thus, respondent performed the functions of Schools Division Superintendent in Iriga City. Subsequently, on November 3, 1997, Secretary Gloria designated respondent as Schools Division Superintendent of Camarines Sur, and petitioner as Schools Division Superintendent of Iriga City.4

In dismissing petitioner's protest, the Civil Service Commission held that Section 99 of the Local Government Code of 1991 contemplates a situation where the Department of Education, Culture and Sports issues the appointments, whereas respondent's appointment was made by no less than the President, in the exercise of his appointing power. Moreover, the designation of respondent

as Schools Division Superintendent of Camarines Sur and of petitioner as Schools Division Superintendent of Iriga City were in the nature of reassignments, in which case consultation with the local school board was unnecessary.

Petitioner filed a Motion for Reconsideration with the Civil Service Commission.5 On August 3, 1998, the Civil Service Commission issued Resolution No. 982058, denying petitioner's Motion for Reconsideration.6

Thus, petitioner filed a petition for review of both Civil Service Commission Resolution Nos. 980699 and 982958 dated August 3, 1998, respectively, before the Court of Appeals, docketed as CA-G.R. SP No. 49204.7 On August 6, 1999, the Court of Appeals dismissed the petition.

Hence, the instant petition for review on certiorari of the August 6, 1999 Decision on the following errors:

I. THE HONORABLE COURT OF APPEALS ERRED IN DECIDING THAT THE RESPONDENT WAS MERELY RE-ASSIGNED TO CAMARINES SUR AND DID NOT REQUIRE THE MANDATORY PRIOR CONSULTATION WITH THE LOCAL SCHOOL BOARD UNDER SECTION 99 OF RA 7160.

II. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR WHEN IT DECIDED THAT THERE WAS NO OPPOSITION MADE WHEN THE PRESIDENT APPOINTED RESPONDENT MALAYA AS DIVISION SCHOOLS SUPERINTENDENT BACK IN 1996 AND AS STATED BY THE CIVIL SERVICE COMMISSION THE LAW DID NOT CONTEMPLATE THAT THE PRESIDENT SHOULD FIRST CONSULT THE LOCAL SCHOOL BOARD BEFORE HE MAKES ANY APPOINTMENT AND THAT SECTION 99 OF THE NEW LOCAL GOVERNMENT CODE APPLIES ONLY TO THE Department of Education, Culture and Sports SECRETARY, WHO, HOWEVER, CAN ONLY MAKE RECOMMENDATION TO THE PRESIDENT.8

The petition lacks merit.

Clearly, the afore-quoted portion of Section 99 of the Local Government Code of 1991 applies to appointments made by the Department of Education, Culture and Sports. This is because at the time of the enactment of the Local Government Code, schools division superintendents were appointed by the Department of Education, Culture and Sports to specific division or location. In 1994, the Career Executive Service Board issued Memorandum Circular No. 21, Series of 1994, placing the positions of schools division superintendent and assistant schools division superintendent within the career executive service. Consequently, the power to appoint persons to career executive service positions was transferred from the Department of Education, Culture and Sports to the President.9 The appointment may not be specific as to location. The prerogative to designate the appointees to their particular stations was vested in the Department of Education, Culture and Sports Secretary, pursuant to the exigencies of the service, as provided in Department of Education, Culture and Sports Order No. 75, Series of 1996.

In the case at bar, the appointment issued by President Ramos in favor of respondent to the Schools Division Superintendent position on September 3, 1996 did not specify her station.10 It was Secretary Gloria who, in a Memorandum dated November 3, 1997, assigned and designated respondent to the Division of Camarines Sur, and petitioner to the Division of Iriga City.11

We agree with the Civil Service Commission and the Court of Appeals that, under the circumstances, the designation of respondent as Schools Division Superintendent of Camarines Sur was not a case of appointment. Her designation partook of the nature of a reassignment from Iriga City, where she previously exercised her functions as Officer-in-Charge-Schools Division Superintendent, to Camarines Sur. Clearly, therefore, the requirement in Section 99 of the Local Government Code of 1991 of prior consultation with the local school board, does not apply. It only refers to appointments made by the Department of Education, Culture and Sports. Such is the plain meaning of the said law.

The "plain meaning rule" or verba legis in statutory construction is thus applicable in this case. 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.12

Appointment should be distinguished from reassignment. An appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office.13

On the other hand, a reassignment is merely a movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment.14 In the same vein, a designation connotes merely the imposition of additional duties on an incumbent official.15

Petitioner asserts a vested right to the position of Schools Division Superintendent of Camarines Sur, citing her endorsement by the Provincial School Board. Her qualification to the office, however, lacks one essential ingredient, i.e., her appointment thereto. While she was recommended by Secretary Gloria to President Ramos for appointment to the position of Schools Division Superintendent of Camarines Sur, the recommendation was not acted upon by the President. Petitioner's designation as Officer-in-Charge, Assistant Schools Division Superintendent, was expressly made subject to further advice from the Department of Education, Culture and Sports.16 Thus, her designation was temporary. In fact, there was a need to recommend her to the President for appointment in a permanent capacity. Inasmuch as she occupied her position only temporarily, petitioner can be transferred or reassigned to other positions without violating her right to security of tenure.17 Indeed, petitioner has no vested right to the position of Schools Division Superintendent of Camarines Sur.

WHEREFORE, in view of the foregoing, the instant petition is DENIED for lack of merit. The assailed decision of the Court of Appeals in CA-G.R. SP No. 49204, as well as Resolutions 980699 and 982058 of the Civil Service Commission, are AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Footnotes

1 Rollo, pp. 164-168; penned by Associate Justice Salome A. Montoya, concurred in by Associate Justices Conrado M. Vasquez, Jr. and Teodoro P. Regino.

2 Ibid., pp. 40-44.

3 Id., pp. 81-84.

4 Id., p. 30.

5 Id., pp. 85-91.

6 Id., pp. 93-96.

7 Id., pp. 100-116.

8 Id., p. 6.

9 Integrated Reorganization Plan, Part III, Chapter I, Article IV, par. 5 (c).

10 Id., p. 212.

11 Id., p. 30.

12 National Federation of Labor, et al. v. NLRC, 327 SCRA 158, 165 [2000].

13 Binamira v. Garrucho Jr., 188 SCRA 154, 158 [1990].

14 Omnibus Rules Implementing Book 5 of the Administrative Code of 1987 (Executive Order No. 292), Rule 7, Section 10.

15 Binamira v. Garrucho Jr., supra.

16 Rollo, p. 24.

17 De Leon v. Court of Appeals, G.R No. 127182, January 22, 2001.