vacancies and succession

Vacancies and Succession

AGUSTIN B. DOCENA, petitioner, vs.THE SANGGUNIANG PANLALAWIGAN OF EASTERN SAMAR, GOVERNOR LUTGARDO B. BARBO, VICE GOVERNOR CAMILO A. CAMENFORTE, BOARD MEMBERS MARCOS ALIDO, NONATO GERNA, ISMAEL KHO, MARCELINO C. LIBANAN, NICOLAS PIMENTEL, GENEROSO YU and ATTY. SOCRATES B. ALAR, respondents.

CRUZ, J.:

Two persons are claiming the same position in the Sangguniang Panlalawigan of Eastern Samar by virtue of separate appointments thereto extended to them by the same authority. The first appointment was replaced by the second appointment, which was subsequently withdrawn to reinstate the first appointment, but this was later itself recalled in favor of the second appointment. To add to the confusion, the Sangguniang Panlalawigan has joined the fray and taken it upon itself to decide who as between the two claimants is entitled to the office.

The case arose when Luis B. Capito, who had been elected to and was serving as a member of the Sangguniang Panlalawigan of Eastern Samar (SPES) died in office and petitioner Agustin B. Docena was appointed to succeed him.

The appointment was issued on November 19, 1990, 1 by Secretary Luis T. Santos of the Department of Local Government and read in full as follows:

Republic of the PhilippinesDepartment of Local Government

PNCC Bldg., EDSA Corner Reliance St.,Mandaluyong, Metro Manila

OFFICE OF THE SECRETARYNovember 19, 1990

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed MEMBER OF THE SANGGUNIANG PANLALAWIGAN, PROVINCE OF EASTERN SAMAR.

By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission copies of your oath of office.

Very truly yours,By Authority of the President

LUIS T. SANTOSSecretary

Mr. AGUSTIN B. DOCENAThru: The Honorable Governor

Province of Eastern Samar

Pursuant thereto, the petitioner took his oath of office before Speaker Ramon V. Mitra of the House of Representatives on November 22, 1990, 2 and assumed office as member of the SPES on November 26, 1990. 3

The record does not show why, but on November 27, 1990, private respondent Socrates B. Alar was appointed, also by Secretary Luis T. Santos, to the position already occupied by Docena. 4 The appointment read in full as follows:



OFFICE OF THE SECRETARYNovember 27, 1990

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed MEMBER OF THE SANGGUNIANG PANLALAWIGAN, PROVINCE OF EASTERN SAMAR.

By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office.

Very truly yours,By Authority of the President


Atty. SOCRATES ALARThru: The Honorable GovernorEastern Samar

On December 18, 990, the SPES passed Resolution No. 75 5 recognizing Alar rather than Docena as the legitimate successor of the late Board Member Capito.

The following day, the SPES was in effect reversed by Secretary Santos when he addressed the following letter to Alar: 6



OFFICE OF THE SECRETARYDecember 19, 1990

Mr. Socrates Alar

Borongan, Eastern Samar

Dear Mr. Alar:It appearing from perusal of records that an appointment dated November 19, 1990 was already issued to Mr. AGUSTIN DOCENA as member of the Sangguniang Panlalawigan of Eastern Samar, vice: Luis Capito, the appointment issued to you dated November 27, 1990 as member of the same sanggunian, is hereby recalled effective the date of issue.

Please be guided accordingly.

Very truly yours,LUIS T. SANTOS

Secretary

cc: The Honorable GovernorBorongan, Eastern SamarThe Sangguniang PanlalawiganBorongan, Eastern SamarMr. Agustin DocenaBorongan, Eastern Samar

This action was affirmed in a First Indorsement dated January 4, 1991, signed by Head Executive Assistant Arturo V. Agundo of the Department of Local Government, 7 in which he declared "by authority of the Secretary" that

1. Records show that the Secretary has appointed Mr. Agustin B. Docena as Sangguniang Panlalawigan Member as of November 19, 1990; the Secretary has extended another appointment to the same post in favor of Atty. Socrates Alar on November 27, 1990; the Secretary, on December 19, 1990, has recalled the appointment of Atty. Socrates Alar on the basis of the earlier appointment extended in favor of Mr. Docena.

In view of the foregoing, the appointment of Mr. Agustin Docena stands and should be recognized.

The reaction of the SPES was to pass, Resolution No. 1 dated January 8, 1991, 8 where it reiterated its previous recognition of Alar and declared that "the recall order issued by Secretary Santos, dated December 19, 1990, recalling the appointment of Atty. Alar has no legal basis in fact and in law and issued to fit his whimsical, capricious and wishy-washy desires to the detriment of decency and due process of law.

On the same date, Provincial Prosecutor Dario S. Labrador had rendered an opinion that the recall order of Secretary Santos was "void ab initio"' because Alar's right to the office "had become vested." 9

It is not clear if Secretary Santos agreed with these views, but at any rate he issued on February 20, 1991, another recall order. 10 this time addressed to Docena, reading in full as follows:



OFFICE OF THE SECRETARYFebruary 20, 1991

MEMORANDUM

TO: MR. AGUSTIN DOCENABorongan, Eastern Samar

SUBJECT: RECALL OF APPOINTMENT —

Please be informed that the appointment extended to you as Member of the Sangguniang Panlalawigan of Eastern Samar, last November 19, 1990 is hereby recalled effective immediately.

You are hereby directed to turn-over the office to Mr. Socrates Alar who was appointed by this Department on November 27, 1990, immediately upon receipt hereof.

For compliance.


cc: The Honorable GovernorProvince of Eastern SamarMr. Socrates AlarBorongan, Eastern Samar

Docena then came to this Court in a petition for mandamus to compel the respondents to recognize and admit him as a lawfully appointed member of the Sangguniang Panlalawigan of Eastern Samar. He also seeks to hold them officially and personally liable in damages for their refusal to do so in spite of his clear title to the disputed office.Pending resolution of this case, we issued a temporary restraining order on January 31, 1991, enjoining both Docena and Alar from assuming the office of member of the Sangguniang Panlalawigan of Eastern Samar.

The pertinent legal provision is Section 50 of the Local Government Code reading as follows:

Sec. 50. Permanent Vacancies in Local Sanggunians. — In case of permanent vacancy in the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, or sangguniang barangay, the President of the Philippines, upon recommendation of the Minister of Local Government, shall appoint a qualified person to fill the vacancy in the sangguniang panlalawigan and the sangguniang panlungsod; the governor, in the case of sangguniang bayan members; or the city or municipal mayor, in the case of

sangguniang barangay members. Except for the sangguniang barangay, the appointee shall come from the political party of the sanggunian member who caused the vacancy, and shall serve the unexpired term of the vacant office.

The petitioner makes the point, and it has not been disputed by the respondents, that both he and Capito ran for the provincial board in the 1988 elections under the banner of Lakas ng Bansa. Later, they both joined the Laban ng Demokratikong Pilipino under the leadership of Speaker Mitra, who administered the oath of office to him when he was appointed to the SPES on November 19, 1990. Docena argues that he has a preferential right to the disputed office even on equitable grounds because he placed ninth in the election, next to Capito, compared to Alar who did not even run for the office.

The respondents do not challenge the qualifications of the petitioner. But they contend that the appointment in his favor on November 19, 1990, had been superseded by the appointment in favor of Alar on November 27, 1990, and that the recall of the second appointment on December 19, 1990, was null and void ab initio for lack of previous hearing. Curiously, they do not have the same view of the recall of Docena's appointment on February 20, 1991, which was also issued without hearing.

From the tenor of the appointment extended to Docena on November 19, 1990, there is no question that it was intended to be permanent, to fill the permanent vacancy caused by Capito's death. As such, it was to be valid for the unexpired portion of the term of the deceased member, who was entitled to serve "until noon of June 30, 1992," in accordance with Article XVIII, Section 2, of the Constitution.

The said appointment had been accepted by Docena, who had in fact already assumed office as member of the SPES as per certification of the Provincial Secretary. 11 For all legal intents and purposes, the petitioner's appointment had already become complete and enforceable at the time it was supposed to have been "superseded" by the appointment in favor of Alar.

The respondents are ambivalent about the power of the Secretary of Local Government to recall his appointments. They described the appointment as "whimsical, capricious and wishy-washy" but they had no similar complaints about the recall of Docena's appointment although also apparently indecisive. On the contrary, they maintained a deep silence about this other recall and insisted simply that the subsequent appointment of Alar had invalidated the earlier appointment of Docena.

It is noteworthy that absolutely no reason was given for the recall of Docena's appointment (or for that matter, the recall of Alar's appointment). It appears that after appointing Docena and later twice sustaining his title to the office, Secretary Santos simply had a change of heart and decided to award the position to Alar.

This is not the way things are done in a democracy.

Docena's appointment having been issued and accepted earlier, and the petitioner having already assumed office, he could not thereafter be just recalled and replaced to accommodate Alar. The appointment was permanent in nature, and for the unexpired portion of the deceased predecessor's term. Docena had already acquired security of tenure in the position and could be removed therefrom only for

any of the causes, and conformably to the procedure, prescribed by the Local Government Code. 12 These requirements could not be circumvented by the simple process of recalling his appointment.

Whatever gave the SPES the impression that the questioned appointments were revocable at will can only be left to conjecture; what is certain is that it was not based on careful legal study. The Provincial Prosecutor's opinion that the office had "become vested" in Alar suffers from the same flaw and a lack of understanding of the nature of a public office. Political rather than legal considerations seem to have influenced the action of the provincial government in rejecting the petitioner's claim despite its obvious merit.

The respondents also argue that the petitioner should have sought to enforce his claimed right in a petition not formandamus but for quo warranto, as his purpose is to challenge Alar's title to the disputed office. That is only secondary in this case. The real purpose of the present petition is to compel the respondent SPES to recognize and admit Docena as a member of the body by virtue of a valid appointment extended to him by the Secretary of Local Government.

Mandamus is employed to compel the performance of a ministerial duty to which the petitioner is entitled. In arguing that the recognition and admission of the petitioner is not a ministerial duty, the respondents are asserting the discretion to review, and if they so decide, reject, the Secretary's appointment. They have no such authority. Faced with a strictly legal question, they had no right and competence to resolve it in their discretion. What they should have done was reserve their judgment on the matter, leaving it to the courts of justice to decide which of the conflicting claims should be upheld. As a local legislative body subject to the general supervision of the President of the Philippines, the SPES had no discretion to rule on the validity of the decisions of the Secretary of Local Government acting as her alter ego.

Even assuming that the proper remedy is a petition for quo warranto, the Court may in its own discretion consider the present petition a. such and deal with it accordingly. We find that as a petition for quo warranto, it complies with the prescribed requirements, to wit, that it be filed on time and by a proper party asserting title to the office also claimed by the respondent. Acting thereon, we hold that Docena has proved his right to the disputed office and could not be legally replaced by Alar.

The Court will make no award of damages, there being no sufficient proof to overcome the presumption that the respondents have acted in good faith albeit erroneously. Nevertheless, the petitioner is entitled to the payment of the salaries and other benefits appurtenant to the office of a Member of the Sangguniang Panlalawigan of Eastern Samar, from the time of his assumption of office and until he is actually admitted or reinstated.

WHEREFORE, the petition is GRANTED. The petitioner is DECLARED the lawfully appointed member of the Sangguniang Panlalawigan of Eastern Samar, which is hereby DIRECTED to admit or reinstate him as such. The temporary restraining order dated January 31, 1991, is LIFTED. No costs.

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Sarmiento, J., is on leave.

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

QUIASON, J.:

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

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

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

FIRST DISTRICT

Name No. of Votes Garnered

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

SECOND DISTRICT

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

THIRD DISTRICT

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

(Rollo, pp. 27-28)

Due to the suspension of Governor Romeo Salalima of the Province of Albay, Vice-Governor Danilo Azana automatically assumed the powers and functions of the governor, leaving vacant his post as vice-governor.

Under the law, Azana's position as vice-governor should be occupied by the highest ranking Sangguniang member, a post being contested by petitioner and private respondent.

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

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

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

Hence, this petition.

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

Petitioner gives the following illustration:

1. for private respondent.

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

(Rollo, pp. 24, 25 and 30)

2. for petitioner

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

(Rollo, p. 9).

We are not persuaded.

The Local Government provides:

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

xxx xxx xxx

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

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

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

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

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

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

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

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

. . . Under the principles of statutory construction, if a statue is clear, plain and free from ambiguity, it must be given it literal meaning and applied without attempted interpretation. This plain-meaning rule or verba legis derived from the maxim, index animi sermo est (speech is the index of intention) rests on the valid presumption that the words employed by the legislature in a statute correctly express its intent or will and preclude the court from construing it differently. The legislature is presumed to know the meaning of the words, to have used words advisely, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure. . .

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

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

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Puno and Vitug, JJ., concur.

GOVERNOR RODOLFO C. FARINAS and AL NACINO, petitioners, vs. MAYOR ANGELO M. ARBA, VICE MAYOR MANUEL S. HERNANDO, and EDWARD PALAFOX, respondents.

D E C I S I O N

MENDOZA, J.:

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

This case arose from the following facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://sc.judiciary.gov.ph/jurisprudence/1996/apr1996/116763.htm#_ftn1

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory.

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

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

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

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

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

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

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

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

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

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

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

Indeed there is no reason for supposing that those who drafted §45 intended to make the manner of filling vacancies in the Sanggunians, created by members who do not belong to any political party, different from the manner of filling such vacancies when created by members who belong to political party or parties. The provision for the first must approximate the provision for the second situation. Any difference in procedure must be limited to the fact that in the case of vacancies caused by those who have political affiliations there is a party which can nominate a replacement while there is none in the case of those who have no political affiliation. Accordingly, where there is no political party to make a nomination, the Sanggunian, where the vacancy occurs, must be considered the appropriate authority for making the

recommendation, by analogy to vacancies created in the Sangguniang Barangay whose members are by law prohibited from having any party affiliation.

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

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

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

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr.; Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Hermosisima, Jr., and Panganiban, JJ., concur.

Torres, Jr., J., took no part.Francisco, J., on leave.

Romeo J. Gamboa, Jr., petitioner, vs. Marcelo Aguirre, Jr., and Juan Y. Araneta, respondents.

D E C I S I O N

YNARES-SANTIAGO, J.:

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

The facts are not in dispute.

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

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

It is correct that when the Vice-Governor exercises the “powers and duties” of the Office of the Governor, he does not assume the latter office. He only “acts” as the Governor but does not “become” the Governor. His assumption of the powers, duties and functions of the provincial Chief Executive does not create a permanent vacuum or vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title as Vice-Governor by merely becoming an Acting Governor, (not Governor) or by merely exercising the powers and duties of the higher office. But the problem is, while in such capacity, does he temporarily relinquish the powers, functions, duties and responsibilities of the Vice-Governor, including the power to preside over the sessions of the SP?

Sad to say the new Local Government Code is silent on this matter, yet this query should be answered in the positive. A Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor

and Vice-Governor are essentially executive in nature, whereas plain members of the provincial board perform functions partaking of a legislative character. This is because the authority vested by law in the provincial boards involves primarily a delegation of some legislative powers of Congress. [7] Unlike under the old Code, where the Governor is not only the provincial Chief Executive,[8] but also the presiding officer of the local legislative body,[9] the new Code delineated the union of the executive-legislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the SP and is no longer considered a member thereof. [10] This is clear from the law, when it provides that “local legislative power shall be vested in the SP,” [11] which is “the legislative body of the province,” and enumerates therein its membership consisting of the:

1.) Vice-Governor, as presiding officer,

2.) regular elective SP members,

3.) three elective sectoral representatives, and

4.) those ex-officio members, namely:

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

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

c.) president of the provincial federation of sanggunian members of municipalities and component cities.[12]

Not being included in the enumeration, the Governor is deemed excluded applying the rule in legal hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local executive power in the province is vested alone in the Governor.[13] Consequently, the union of legislative-executive powers in the office of the local chief executive under the former Code has been disbanded, so that either department now comprises different and non-intermingling official personalities with the end in view of ensuring a better delivery of public service and provide a system of check and balance between the two.

It has been held that if a Mayor who is out of the country is considered “effectively absent”, the Vice-Mayor should discharge the duties of the mayor during the latter’s absence. [14] This doctrine should equally apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this term should be reasonably construed to mean “effective” absence,[15] that is, one that renders the officer concerned powerless, for the time being, to discharge the powers and prerogatives of his office. [16] There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. [17] By virtue of the foregoing definition, it can be said that the designation, appointment or assumption of the Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during such contingency. Considering the silence of the law on the matter, the mode of succession provided for permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be observed in the event of temporary vacancy occurring in the same office.[18] This is so because in the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.

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

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.



PURTO J. NAVARRO and DANNY B. TAMAYO, petitioner, vs. COURT OF APPEALS and ADOLFO AQUINO, ROLANDO LALAS, ABRAHAM MORALES, BLANDO QUINTO, ROMEO VISPERAS, ANTONIO PENULIAR, EDUARDO ABULENCIA, EMILIO PENULIAR, JR., ERNESTO SERAPION, VICTORIO LALANGAN, ANTONIO BURGUILLOS, MIGUEL JIMENEZ, and ELPIDIO VILLANUEVA, respondents.

D E C I S I O N

KAPUNAN, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing as erroneous the decision of the Court of Appeals, Fourth Division,[1] dated October 7, 1999 in CA-G.R. SP No. 5475 which granted the petition for certiorari filed by herein respondents and declared as null and void the appointment of herein petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan, Pangasinan.

The facts are undisputed.

In the May 11, 1997 local elections, the following officials were elected to office in the Municipality of Mapandan, Pangasinan:

Cesar M. Calimlim - Mayor - Lakas NUCD-KAMPI

Baltazar Aquino - Vice-Mayor -Lakas NUCD-KAMPI

Elected as members of the Sangguniang Bayan ranked according to the highest number of votes obtained were the following councilors:

Political Party

1. Danny B. Tamayo REFORMA-LM2. Rolando S. Soriano REFORMA-LM3. Leopoldo C. Biagtan REFORMA-LM4. Florentino Z. Lalas REFORMA-LM5. Mamerto Eden, Jr. REFORMA-LM6. Victorio C. Lalangan LAKAS-NUCD-KAMPI7. Judy A. Pascual REFORMA-LM8. Rolando Lalas LAKAS-NUCD-KAMPI

On March 25, 1999, Mayor Cesar Calimlim died. A vacancy was thus created in the Office of the Mayor so by operation of law, Section 44 of Republic Act 7160, otherwise known as the Local Government Code of 1991, then Vice-Mayor Baltazar Aquino succeeded him. Accordingly, the highest ranking member of the Sangguniang Bayan, i.e. the one who garnered the highest number of votes, was elevated to the position of the Vice-Mayor, pursuant to the same law. This was petitioner Danny B. Tamayo who belonged to the REFORMA-LM political party.

Since a vacancy occurred in the Sangguniang Bayan by the elevation of petitioner Tamayo to the office of the Vice-Mayor, Governor Victor Agbayani of Pangasinan appointed herein petitioner Purto J.

Navarro as Member of the Sangguniang Bayan. Navarro belonged to the same political party as that of petitioner Tamayo.

Private respondents filed Civil Case No. 99-12958-D to nullify the appointment of petitioner Navarro before the Regional Trial Court of Dagupan City, Branch 44 presided by Judge Crispin Laron. Their motions for the issuance of a temporary restraining order and for the inhibition of Judge Laron having been denied, private respondents filed a Petition for Review on Certiorari with this Court.

In a Resolution dated August 25, 1999, this Court referred the case to the Court of Appeals due to the hierarchy of courts.

Private respondents argued before the Court of Appeals that it was the former vice-mayor, succeeding to the position of the mayor, who created the permanent vacancy in the Sanggunian Bayan because under the law he was also a member of the Sanggunian. Thus, the appointee must come from said former vice-mayor's political party, in this case, the Lakas-NUCD-Kampi.

Petitioners, on the other hand, contended that it was the elevation of petitioner Tamayo, who was the highest-ranking member of the Sanggunian Bayan, to the office of the Vice-Mayor which resulted in a permanent vacancy in the Sanggunian Bayan. Pursuant to Section 45 (b) of RA 7160, the person to be appointed to the position vacated by him should come from the same political party affiliation as that of petitioner Tamayo. Hence, the appointment extended by Governor Agbayani to petitioner Navarro, who was a member of and recommended by the REFORMA-LM, is valid.

The Court of Appeals in a decision dated October 7, 1999 resolved the petition in favor of private respondents but for the reason different from that posited by private respondents. According to the appellate court, the vacancy which resulted from the death of the mayor created a series of vacancies and successions by operation of law. By this interpretation, petitioner Tamayo's former position as the highest-ranking member of the

Aggrieved by the decision of the Court of Appeals, petitioners brought the instant petition. Sanggunian Bayan was filled up by the second highest-ranking member and that vacated by the second highest-ranking member was succeeded by the third highest-ranking member, and so forth. And the last vacancy created was the position of the lowest ranking-member of the Sanggunian, that is, the eighth position occupied by Rolando Lalas. The Court of Appeals then concluded that it was the appointment of the eighth councilor, who was Rolando Lalas to the number seven position which created the "last vacancy;" therefore, the person to be appointed to the vacant position should come form the same political party to which Rolando Lalas belonged, which was the Lakas-NUCD-Kampi.

We give due course to the petition.

Sections 44 and 45 of RA 7160 governing vacancies and succession are quoted hereunder:

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

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(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay members or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay.

(c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.

(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

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

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

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

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

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

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


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

Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.

What is crucial is the interpretation of Section 45 (b) providing that "xxx only the nominee of the political party under which the Sanggunian member concerned has been elected and whose elevation to the position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the political party as that of the Sanggunian member who caused the vacancy xxx."

The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election.[2]

With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the political party of petitioner Tamayo. Otherwise, REFORMA-LM's representation in the Sanggunian would be diminished. To argue that the vacancy created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member, would result in the increase of that party's representation in the Sanggunian at the expense of the REFORMA-LM. This interpretation is contrary to the letter and spirit of the law and thus violative of a fundamental rule in statutory construction which is to ascertain and give effect to the intent and purpose of the law. [3] As earlier pointed out, the reason behind par. (b), section 44 of the Local Government Code is the maintenance party representation in the Sanggunian in accordance with the will of the electorate.

The "last vacancy" in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes already enumerated. The term "last vacancy" is thus used in Sec. 45 (b) to differentiate it from the other vacancy previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with the election of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in absurdity.

Petitioners also allege that the Court of Appeals erred in giving due course to the petition because the verification is defective. It is argued that the affidavit merely stated that the allegations therein are "true and correct to the best of my own knowledge and information" whereas Section 4, Rule 7 of the Rules of Court specifically requires that the allegations be "true and correct of his knowledge and belief."

The contention is without merit. Verification based on the affiant's own knowledge and information is sufficient under the circumstances. Verification is merely a formal and not a jurisdictional requisite which does not affect the validity or efficacy of the pleading, or the jurisdiction of the court. [4] Therefore, a defective verification, as in the present case, does not render the pleading or the petition invalid and the Court of Appeals did not err in giving due course to the petition.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. SP No. 54675 dated October 7, 1999 is REVERSED and SET ASIDE. The appointment of petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan, Pangasinan is hereby AFFIRMED as valid and legal.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Pardo, and Ynares-Santiago, JJ., concur.Puno J., on official leave.




EFREN RACEL ARA TEA, Petitioner, vs.COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a special civil action for certiorari1 seeking to review and nullify the Resolution2 dated 2 February 2011 and the Order3 dated 12 January 2011 of the Commission on Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v. Romeo D. Lonzanida, docketed as SPA No. 09-158 (DC). The petition asserts that the COMELEC issued the Resolution and Order with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Facts

Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for Mayor of San Antonio, Zambales in the May 2010 National and Local Elections. Lonzanida filed his certificate of candidacy on 1 December 2009.4 On 8 December 2009, Dra. Sigrid S. Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus Election Code to disqualify Lonzanida and to deny due course or to cancel Lonzanida’s certificate of candidacy on the ground that Lonzanida was elected, and had served, as mayor of San Antonio, Zambales for four (4) consecutive terms immediately prior to the term for the May 2010 elections. Rodolfo asserted that Lonzanida made a false material representation in his certificate of candidacy when Lonzanida certified under oath that he was eligible for the office he sought election. Section 8, Article X of the 1987 Constitution5 and Section 43(b) of the Local Government Code6 both prohibit a local elective official from being elected and serving for more than three consecutive terms for the same position.

The COMELEC Second Division rendered a Resolution7 on 18 February 2010 cancelling Lonzanida’s certificate of candidacy. Pertinent portions of the 18 February 2010 Resolution read:

Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for more than nine consecutive years. Instead he raised arguments to forestall or dismiss the petition on the grounds other than the main issue itself. We find such arguments as wanting. Respondent Lonzanida, for holding the office of mayor for more than three consecutive terms, went against the three-term limit rule; therefore, he could not be allowed to run anew in the 2010 elections. It is time to infuse new blood in the political arena of San Antonio.

WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of Candidacy of Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San Antonio, Zambales is hereby CANCELLED. His name is hereby ordered STRICKEN OFF the list of Official Candidates for the position of Mayor of San Antonio, Zambales in May 10, 2010 elections.

SO ORDERED.8

Lonzanida’s motion for reconsideration before the COMELEC En Banc remained pending during the May 2010 elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the highest number of votes and were respectively proclaimed Mayor and Vice-Mayor.

Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge Raymond C. Viray of Branch 75, Olongapo City on 5 July 2010.9 On the same date, Aratea wrote the Department of Interior and Local Government (DILG) and requested for an opinion on whether, as Vice-Mayor, he was legally required to assume the Office of the Mayor in view of Lonzanida’s disqualification. DILG Legal Opinion No. 117, S. 201010 stated that Lonzanida was disqualified to hold office by reason of his criminal conviction. As a consequence of Lonzanida’s disqualification, the Office of the Mayor was deemed permanently vacant. Thus, Aratea should assume the Office of the Mayor in an acting capacity without prejudice to the COMELEC’s resolution of Lonzanida’s motion for reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow him to take the oath of office as Mayor of San Antonio, Zambales. In his response dated 24 August 2010, then Secretary Jesse M. Robredo allowed Aratea to take an oath of office as "the permanent Municipal Mayor of San Antonio, Zambales without prejudice however to the outcome of the cases pending before the [COMELEC]."11

On 11 August 2010, the COMELEC En Banc issued a Resolution12 disqualifying Lonzanida from running for Mayor in the May 2010 elections. The COMELEC En Banc’s resolution was based on two grounds: first, Lonzanida had been elected and had served as Mayor for more than three consecutive terms without interruption; andsecond, Lonzanida had been convicted by final judgment of ten (10) counts of falsification under the Revised Penal Code. Lonzanida was sentenced for each count of falsification to imprisonment of four (4) years and one (1) day of prisión correccional as minimum, to eight (8) years and one (1) day of prisión mayor as maximum. The judgment of conviction became final on 23 October 2009 in the Decision of this Court in Lonzanida v. People,13before Lonzanida filed his certificate of candidacy on 1 December 2009. Pertinent portions of the 11 August 2010 Resolution read:

Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio, Zambales for more than three (3) consecutive terms and for having been convicted by a final judgment of a crime punishable by more than one (1) year of imprisonment, is clearly disqualified to run for the same position in the May 2010 Elections.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.

SO ORDERED.14

On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention.15She claimed her right to be proclaimed as Mayor of San Antonio, Zambales because Lonzanida ceased to be a candidate when the COMELEC Second Division, through its 18 February 2010 Resolution, ordered the cancellation of his certificate of candidacy and the striking out of his name from the list of official candidates for the position of Mayor of San Antonio, Zambales in the May 2010 elections.

In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate who received the second highest number of votes, could not be proclaimed as the winning candidate. Since Lonzanida’s

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disqualification was not yet final during election day, the votes cast in his favor could not be declared stray. Lonzanida’s subsequent disqualification resulted in a permanent vacancy in the Office of Mayor, and Aratea, as the duly-elected Vice-Mayor, was mandated by Section 4416 of the Local Government Code to succeed as Mayor.

The COMELEC’s Rulings

The COMELEC En Banc issued an Order dated 12 January 2011, stating:

Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention" filed by Estela D. Antipolo (Antipolo) and pursuant to the power of this Commission to suspend its Rules or any portion thereof in the interest of justice, this Commission hereby RESOLVES to:

1. GRANT the aforesaid Motion;

2. ADMIT the Petition-in-Intervention filed by Antipolo;

3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL ARATEA, proclaimed Vice-Mayor of San Antonio, Zambales, to file their respective Comments on the Petition-in- Intervention within a non-extendible period of five (5) days from receipt thereof;

4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m. COMELEC Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.

WHEREFORE, furnish copies hereof the parties for their information and compliance.

SO ORDERED.17

In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered Lonzanida’s qualification as an issue: "It is beyond cavil that Lonzanida is not eligible to hold and discharge the functions of the Office of the Mayor of San Antonio, Zambales. The sole issue to be resolved at this juncture is how to fill the vacancy resulting from Lonzanida’s disqualification."18 The Resolution further stated:

We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be proclaimed as the duly elected Mayor of Antipolo [sic] for being a second placer in the elections. The teachings in the cases of Codilla vs. De Venecia and Nazareno and Domino vs. COMELEC, et al., while they remain sound jurisprudence find no application in the case at bar. What sets this case apart from the cited jurisprudence is that the notoriety of Lonzanida’s disqualification and ineligibility to hold public office is established both in fact and in law on election day itself. Hence, Lonzanida’s name, as already ordered by the Commission on February 18, 2010 should have been stricken off from the list of official candidates for Mayor of San Antonio, Zambales.

WHEREFORE, in view of the foregoing, the Commission hereby:

1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;

2. GRANTS the Petition for Intervention of Estela D. Antipolo;

3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to PROCLAIM Intervenor Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales;

4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions of the Office of the Mayor, and to cause a peaceful turn-over of the said office to Antipolo upon her proclamation; and

5. Orders the Office of the Executive Director as well as the Regional Election Director of Region III to cause the implementation of this Resolution and disseminate it to the Department of Interior and Local Government.

SO ORDERED.19

Aratea filed the present petition on 9 February 2011.

The Issues

The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio, Zambales is dependent upon the determination of Lonzanida’s removal. Whether Lonzanida was disqualified under Section 68 of the Omnibus Election Code, or made a false material representation under Section 78 of the same Code that resulted in his certificate of candidacy being void ab initio, is determinative of whether Aratea or Antipolo is the rightful occupant to the Office of the Mayor of San Antonio, Zambales.

The dissenting opinions reverse the COMELEC’s 2 February 2011 Resolution and 12 January 2011 Order. They hold that Aratea, the duly elected Vice-Mayor of San Antonio, Zambales, should be declared Mayor pursuant to the Local Government Code’s rule on succession.

The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence that a false representation in the certificate of candidacy as to eligibility in the number of terms elected and served is a material fact that is a ground for a petition to cancel a certificate of candidacy under Section 78; second, they ignore that a false representation as to eligibility to run for public office due to the fact that the candidate suffers from perpetual special disqualification is a material fact that is a ground for a petition to cancel a certificate of candidacy under Section 78; and third, they resort to a strained statutory construction to conclude that the violation of the three-term limit rule cannot be a ground for cancellation of a certificate of candidacy under Section 78, even when it is clear and plain that violation of the three-term limit rule is an ineligibility affecting the qualification of a candidate to elective office.

The dissenting opinions tread on dangerous ground when they assert that a candidate’s eligibility to the office he seeks election must be strictly construed to refer only to the details, i.e., age, citizenship, or residency, among others, which the law requires him to state in his COC, and which he must swear under oath to possess. The dissenting opinions choose to view a false certification of a candidate’s eligibility on the three-term limit rule not as a ground for false material representation under Section 78 but as a ground





for disqualification under Section 68 of the same Code. This is clearly contrary to well-established jurisprudence.

The Court’s Ruling

We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because Lonzanida’s certificate of candidacy was void ab initio. In short, Lonzanida was never a candidate at all. All votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified candidate, actually garnered the highest number of votes for the position of Mayor.

Qualifications and Disqualifications

Section 65 of the Omnibus Election Code points to the Local Government Code for the qualifications of elective local officials. Paragraphs (a) and (c) of Section 39 and Section 40 of the Local Government Code provide in pertinent part:

Sec. 39. Qualifications. ‒ (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province x x x; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

x x x x

(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.

x x x x

Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded. (Emphasis supplied)

Section 12 of the Omnibus Election Code provides:

Sec. 12. Disqualification. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis supplied)

The grounds for disqualification for a petition under Section 68 of the Omnibus Election Code are specifically enumerated:

Sec. 68. Disqualifications. ‒ Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis supplied)

A petition for disqualification under Section 68 clearly refers to "the commission of prohibited acts and possession of a permanent resident status in a foreign country."20 All the offenses mentioned in Section 68 refer to election offenses under the Omnibus Election Code, not to violations of other penal laws. There is absolutely nothing in the language of Section 68 that would justify including violation of the three-term limit rule, or conviction by final judgment of the crime of falsification under the Revised Penal Code, as one of the grounds or offenses covered under Section 68. In Codilla, Sr. v. de Venecia,21 this Court ruled:

[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not administrative in nature. x x x

Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final judgment of the crime of falsification under the Revised Penal Code, does not constitute a ground for a petition under Section 68.



False Material Representation

Section 78 of the Omnibus Election Code states that a certificate of candidacy may be denied or cancelled when there is false material representation of the contents of the certificate of candidacy:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. ‒ A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied)

Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy:

Sec. 74. Contents of certificate of candidacy. ‒ The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

x x x x (Emphasis supplied)

A candidate for mayor in the 2010 local elections was thus required to provide 12 items of information in the certificate of candidacy:22 name; nickname or stage name; gender; age; place of birth; political party that nominated the candidate; civil status; residence/address; profession or occupation; post office address for election purposes; locality of which the candidate is a registered voter; and period of residence in the Philippines before 10 May 2010. The candidate also certifies four statements: a statement that the candidate is a natural born or naturalized Filipino citizen; a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; a statement that the candidate is eligible for the office he seeks election; and a statement of the candidate’s allegiance to the Constitution of the Republic of the Philippines.23 The certificate of candidacy should also be under oath, and filed within the period prescribed by law.

The conviction of Lonzanida by final judgment, with the penalty of prisión mayor, disqualifies him perpetually from holding any public office, or from being elected to any public office. This perpetual disqualification took effect upon the finality of the judgment of conviction, before Lonzanida filed his certificate of candidacy. The pertinent provisions of the Revised Penal Code are as follows:

Art. 27. Reclusion perpetua. — x x x

Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty.

x x x x

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election.

2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office.

3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence.

4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special disqualification . — The penalties of perpetual or temporary special disqualification for public office, profession or calling shall produce the following effects:

1. The deprivation of the office, employment, profession or calling affected.

2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence, according to the extent of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office.Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification.

Art. 42. Prisión mayor — Its accessory penalties. — The penalty of prision mayor shall carry with it that oftemporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)



The penalty of prisión mayor automatically carries with it, by operation of law,24 the accessory penalties of temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective office or to be elected to such office.” The duration of temporary absolute disqualification is the same as that of the principal penalty of prisión mayor. On the other hand, under Article 32 of the Revised Penal Code, perpetual special disqualification means that "the offender shall not be permitted to hold any public office during the period of his disqualification,” which is perpetually. Both temporary absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and commits a false material representation if he states in his certificate of candidacy that he is eligible to so run.

In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory penalty of perpetual special disqualification:

On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of a crime penalized with prision mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment.

The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised Penal Code, provides:

Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of disqualification.

The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their durations into one period, states that such duration is "according to the nature of said penalty" — which means according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually.”

The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his [perpetual special] disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. In the case of Lonzanida, he became ineligible perpetually to hold, or to run for, any elective public office from the time the judgment of conviction against him became final. The judgment of conviction was promulgated on 20 July 2009 and became final on 23 October 2009, before Lonzanida filed his certificate of candidacy on 1 December 2009 . 26

Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the statement that Section 74 requires him to state under oath in his certificate of candidacy. As this Court held in Fermin v. Commission on Elections,27 the false material representation may refer to "qualifications or eligibility.” One who suffers from perpetual special disqualification is ineligible to run for public office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes afalse material representation that is a ground for a petition under Section 78. As this Court explained inFermin:

Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for . It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.28 (Emphasis supplied)

Latasa, Rivera and Ong:

The Three-Term Limit Rule as a Ground for Ineligibility

Section 74 requires the candidate to certify that he is eligible for the public office he seeks election. Thus, Section 74 states that "the certificate of candidacy shall state that the person filing x x x is eligible for said office.” The three-term limit rule, enacted to prevent the establishment of political dynasties and to enhance the electorate’s freedom of choice,29 is found both in the Constitution30 and the law.31 After being elected and serving for three consecutive terms, an elective local official cannot seek immediate reelection for the same office in the next regular election32 because he is ineligible. One who has an ineligibility to run for elective public office is not "eligible for [the] office." As used in Section 74, the word "eligible"33 means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for the public office.











In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was elected mayor of the Municipality of Digos, Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos was converted into the City of Digos during Latasa’s third term. Latasa filed his certificate of candidacy for city mayor for the 2001 elections. Romeo Sunga, Latasa’s opponent, filed before the COMELEC a "petition to deny due course, cancel certificate of candidacy and/or disqualification" under Section 78 on the ground that Latasa falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City. Latasa argued that he did not make any false representation. In his certificate of candidacy, Latasa inserted a footnote after the phrase "I am eligible" and indicated "*Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor." The COMELEC First Division cancelled Latasa’s certificate of candidacy for violation of the three-term limit rule but not for false material representation. This Court affirmed the COMELEC En Banc’s denial of Latasa’s motion for reconsideration.

We cancelled Marino Morales’ certificate of candidacy in Rivera III v. Commission on Elections (Rivera).35 We held that Morales exceeded the maximum three-term limit, having been elected and served as Mayor of Mabalacat for four consecutive terms (1995 to 1998, 1998 to 2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible as a candidate for the same position for the 2007 to 2010 term. Although we did not explicitly rule that Morales’ violation of the three-term limit rule constituted false material representation, we nonetheless granted the petition to cancel Morales’ certificate of candidacy under Section 78. We also affirmed the cancellation of Francis Ong’s certificate of candidacy in Ong v. Alegre,36 where the "petition to disqualify, deny due course and cancel" Ong’s certificate of candidacy under Section 78 was predicated on the violation of the three-term limit rule.

Loong, Fermin and Munder:

When Possession of a Disqualifying Condition is Not a Ground for a Petition for Disqualification

It is obvious from a reading of the laws and jurisprudence that there is an overlap in the grounds for eligibility and ineligibility vis-à-vis qualifications and disqualifications. For example, a candidate may represent that he is a resident of a particular Philippine locality37 when he is actually a permanent resident of another country.38 In cases of such overlap, the petitioner should not be constrained in his choice of remedy when the Omnibus Election Code explicitly makes available multiple remedies.39 Section 78 allows the filing of a petition to deny due course or to cancel a certificate of candidacy before the election, while Section 253 allows the filing of a petition for quo warranto after the election. Despite the overlap of the grounds, one should not confuse a petition for disqualification using grounds enumerated in Section 68 with a petition to deny due course or to cancel a certificate of candidacy under Section 78.

The distinction between a petition under Section 68 and a petition under Section 78 was discussed in Loong v. Commission on Elections40 with respect to the applicable prescriptive period. Respondent Nur Hussein Ututalum filed a petition under Section 78 to disqualify petitioner Benjamin Loong for the office of Regional Vice-Governor of the Autonomous Government of Muslim Mindanao for false representation as to his age. The petition was filed 16 days after the election, and clearly beyond the prescribed 25 day period from the last day of filing certificates of candidacy. This Court ruled that Ututalum’s petition was one based on false representation under Section 78, and not for disqualification under Section 68. Hence, the 25-day prescriptive period provided in Section 78 should be strictly applied. We recognized the possible gap in the law:

It is true that the discovery of false representation as to material facts required to be stated in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by Section 78 of the Code, through no fault of the person who discovers such misrepresentations and who would want the disqualification of the candidate committing the misrepresentations. It would seem, therefore, that there could indeed be a gap between the time of the discovery of the misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the election is made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of the candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him. Respondent Commission sees this "gap" in what it calls a procedural gap which, according to it, is unnecessary and should be remedied.

At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government to fix a definite time within which petitions of protests related to eligibility of candidates for elective offices must be filed, as seen in Sections 78 and 253 of the Code. Respondent Commission may have seen the need to remedy this so-called “procedural gap", but it is not for it to prescribe what the law does not provide, its function not being legislative. The question of whether the time to file these petitions or protests is too short or ineffective is one for the Legislature to decide and remedy.41

In Fermin v. Commission on Elections,42 the issue of a candidate’s possession of the required one-year residency requirement was raised in a petition for disqualification under Section 68 instead of a petition to deny due course or to cancel a certificate of candidacy under Section 78. Despite the question of the one-year residency being a proper ground under Section 78, Dilangalen, the petitioner before the COMELEC in Fermin, relied on Section 5(C)(1) and 5(C)(3)(a)(4) of COMELEC Resolution No. 780043 and filed the petition under Section 68. In Fermin, we ruled that "a COMELEC rule or resolution cannot supplant or vary legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds."44 A petition for disqualification can only be premised on a ground specified in Section 12 or 68 of the Omnibus Election Code or Section 40 of the Local Government Code. Thus, a petition questioning a candidate’s possession of the required one-year residency requirement, as distinguished from permanent residency or immigrant status in a foreign country, should be filed under Section 78, and a petition under Section 68 is the wrong remedy.

In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of candidacy for Mayor of Bubong, Lanao del Sur on 26 November 2009. Respondent Atty. Tago Sarip filed a petition for Munder’s disqualification on 13 April 2010. Sarip claimed that Munder misrepresented that he was a registered voter of Bubong, Lanao del Sur, and that he was eligible to register as a voter in 2003 even though he was not yet 18 years of age at the time of the voter’s registration. Moreover, Munder’s certificate of candidacy was not accomplished in full as he failed to indicate his precinct and did not affix his thumb-mark. The COMELEC Second Division dismissed Sarip’s petition and declared that his grounds are not grounds for disqualification under Section 68 but for denial or cancellation of Munder’s certificate of candidacy under Section 78. Sarip’s petition was filed out of time as he had only 25 days after the filing of Munder’s certificate of candidacy, or until 21 December 2009, within which to file his petition.

The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second Division, the COMELEC En Banc did not rule on the propriety of Sarip’s remedy but focused on the question of whether Munder was a registered voter of Bubong, Lanao del Sur. This Court reinstated the COMELEC Second Division’s resolution. This Court ruled that the ground raised in the petition, lack of registration as voter in













the locality where he was running as a candidate, is inappropriate for a petition for disqualification. We further declared that with our ruling in Fermin, we had already rejected the claim that lack of substantive qualifications of a candidate is a ground for a petition for disqualification under Section 68. The only substantive qualification the absence of which is a ground for a petition under Section 68 is the candidate’s permanent residency or immigrant status in a foreign country.

The dissenting opinions place the violation of the three-term limit rule as a disqualification under Section 68 as the violation allegedly is "a status, circumstance or condition which bars him from running for public office despite the possession of all the qualifications under Section 39 of the [Local Government Code]." In so holding the dissenting opinions write in the law what is not found in the law. Section 68 is explicit as to the proper grounds for disqualification under said Section. The grounds for filing a petition for disqualification under Section 68 are specifically enumerated in said Section. However, contrary to the specific enumeration in Section 68 and contrary to prevailing jurisprudence, the dissenting opinions add to the enumerated grounds the violation of the three-term limit rule and falsification under the Revised Penal Code, which are obviously not found in the enumeration in Section 68.

The dissenting opinions equate Lonzanida’s possession of a disqualifying condition (violation of the three-term limit rule) with the grounds for disqualification under Section 68. Section 68 is explicit as to the proper grounds for disqualification: the commission of specific prohibited acts under the Omnibus Election Code and possession of a permanent residency or immigrant status in a foreign country. Any other false representation regarding a material fact should be filed under Section 78, specifically under the candidate’s certification of his eligibility. In rejecting a violation of the three-term limit as a condition for eligibility, the dissenting opinions resort to judicial legislation, ignoring the verba legis doctrine and well-established jurisprudence on this very issue.

In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and thus qualification, to the office he seeks election. Even though the certificate of candidacy does not specifically ask the candidate for the number of terms elected and served in an elective position, such fact is material in determining a candidate’s eligibility, and thus qualification for the office. Election to and service of the same local elective position for three consecutive terms renders a candidate ineligible from running for the same position in the succeeding elections. Lonzanida misrepresented his eligibility because he knew full well that he had been elected, and had served, as mayor of San Antonio, Zambales for more than three consecutive terms yet he still certified that he was eligible to run for mayor for the next succeeding term. Thus, Lonzanida’s representation that he was eligible for the office that he sought election constitutes false material representation as to his qualification or eligibility for the office.

Legal Duty of COMELEC to Enforce Perpetual Special Disqualification

Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is judicial notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law.

Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative to the conduct of an election."46 The disqualification of a convict to run for elective public office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of theenforcement and administration of "all the laws" relating to the conduct of elections.

Effect of a Void Certificate of Candidacy

A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid votes.47 We quote from the COMELEC’s 2 February 2011 Resolution with approval:

As early as February 18, 2010, the Commission speaking through the Second Division had already ordered the cancellation of Lonzanida’s certificate of candidacy, and had stricken off his name in the list of official candidates for the mayoralty post of San Antonio, Zambales. Thereafter, the Commission En Banc in its resolution dated August 11, 2010 unanimously affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained by the Supreme Court no less. The disqualification of Lonzanida is not simply anchored on one ground. On the contrary, it was emphasized in our En Banc resolution that Lonzanida’s disqualification is two-pronged: first, he violated the constitutional fiat on the three-term limit; and second, as early as December 1, 2009, he is known to have been convicted by final judgment for ten (10) counts of Falsification under Article 171 of the Revised Penal Code. In other words, on election day, respondent Lonzanida’s disqualification is notoriously known in fact and in law. Ergo, since respondent Lonzanida was never a candidate for the position of Mayor [of] San Antonio, Zambales, the votes cast for him should be considered stray votes. Consequently, Intervenor Antipolo, who remains as the sole qualified candidate for the mayoralty post and obtained the highest number of votes, should now be proclaimed as the duly elected Mayor of San Antonio, Zambales.48 (Boldfacing and underscoring in the original; italicization supplied)

Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run for Mayor.1âwphi1Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a candidate from the very beginning, his certificate of candidacy being void ab initio. There was only one qualified candidate for Mayor in the May 201 0 elections - Anti polo, who therefore received the highest number of votes.

WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the Order dated 12 January 2011 of the COMELEC En Bane in SPA No. 09-158 (DC) are AFFIRMED. The COMELEC En Bane isDIRECTED to constitute a Special Municipal Board of Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales. Petitioner Efren Racel Aratea is ORDERED to cease and desist from discharging the functions of the Office of the Mayor of San Antonio, Zambales.

SO ORDERED.




Judicial Intervention

RULE 63

Declaratory Relief and Similar Remedies

Section 4. Local government ordinances. — In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard. (4a, R64).

Disciplinary Actions

Republic Act No. 6770 November 17, 1989

AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. Title. — This Act shall be known as "The Ombudsman Act of 1989".

Section 2. Declaration of Policy. — The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, efficiency, act with patriotism and justice and lead modest lives.

Section 3. Office of the Ombudsman. — The Office of the Ombudsman shall include the Office of the Overall Deputy, the Office of the Deputy for Luzon, the Office of the Deputy for the Visayas, the Office of the Deputy for Mindanao, the Office of the Deputy for the Armed Forces, and the Office of the Special Prosecutor. The President may appoint other Deputies as the necessity for it may arise, as recommended by the Ombudsman.

Section 4. Appointment. — The Ombudsman and his Deputies, including the Special Prosecutor, shall be appointed by the President from a list of at least twenty-one (21) nominees prepared by the Judicial and Bar Council, and from a list of three (3) nominees for each vacancy thereafter, which shall be filled within three (3) months after it occurs, each of which list shall be published in a newspaper of general circulation.

In the organization of the Office of the Ombudsman for filling up of positions therein, regional, cultural or ethnic considerations shall be taken into account to the end that the Office shall be as much as possible representative of the regional, ethnic and cultural make-up of the Filipino nation.

Section 5. Qualifications. — The Ombudsman and his Deputies, including the Special Prosecutor, shall be natural-born citizens of the Philippines, at least forty (40) years old, of recognized probity and independence, members of the Philippine Bar, and must not have been candidates for any elective national or local office in the immediately preceding election whether regular or special. The Ombudsman must have, for ten (10) years or more, been a judge or engaged in the practice of law in the Philippines.

Section 6. Rank and Salary. — The Ombudsman and his Deputies shall have the same ranks, salaries and privileges as the Chairman and members, respectively, of a Constitutional Commission. Their salaries shall not be decreased during their term of office.

The members of the prosecution, investigation and legal staff of the Office of the Ombudsman shall receive salaries which shall not be less than those given to comparable positions in any office in the Government.

Section 7. Term of Office. — The Ombudsman and his Deputies, including the Special Prosecutor, shall serve for a term of seven (7) years without reappointment.

Section 8. Removal; Filling of Vacancy. —

(1) In accordance with the provisions of Article XI of the Constitution, the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.

(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process.

(3) In case of vacancy in the Office of the Ombudsman due to death, resignation, removal or permanent disability of the incumbent Ombudsman, the Overall Deputy shall serve as Acting Ombudsman in a concurrent capacity until a new Ombudsman shall have been appointed for a full term.n case the Overall Deputy cannot assume the role of Acting Ombudsman, the President may designate any of the Deputies, or the Special Prosecutor, as Acting Ombudsman.

(4) In case of temporary absence or disability of the Ombudsman, the Overall Deputy shall perform the duties of the Ombudsman until the Ombudsman returns or is able to perform his duties.

Section 9. Prohibitions and Disqualifications. — The Ombudsman, his Deputies and the Special Prosecutor shall not, during their tenure, hold any other office or employment. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. They shall not be qualified to run for any office in the election immediately following their cessation from office. They shall not be allowed to appear or practice before the Ombudsman for two (2) years following their cessation from office.

No spouse or relative by consanguinity or affinity within the fourth civil degree and no law, business or professional partner or associate of the Ombudsman, his Deputies or Special Prosecutor within one (1) year preceding the appointment may appear as counsel or agent on any matter pending before the Office of the Ombudsman or transact business directly or indirectly therewith.

This disqualification shall apply during the tenure of the official concerned. This disqualification likewise extends to the law, business or professional firm for the same period.

Section 10. Disclosure of Relationship. — It shall be the duty of the Ombudsman, his Deputies, including the Special Prosecutor to make under oath, to the best of their knowledge and/or information, a public disclosure of the identities of, and their relationship with the persons referred to in the preceding section.

The disclosure shall be filed with the Office of the President and the Office of the Ombudsman before the appointee assumes office and every year thereafter. The disclosures made pursuant to this section shall form part of the public records and shall be available to any person or entity upon request.

Section 11. Structural Organization. — The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its powers and functions shall be vested in the Ombudsman, who shall have supervision and control of the said office.

(1) The Office of the Ombudsman may organize such directorates for administration and allied services as may be necessary for the effective discharge of its functions. Those appointed as directors or heads shall have the rank and salary of line bureau directors.

(2) The Office of the Overall Deputy shall oversee and administer the operations of the different offices under the Office of Ombudsman.t shall likewise perform such other functions and duties assigned to it by the Ombudsman.

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman.

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;

(b) To enter into plea bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.

The Special Prosecutor shall have the rank and salary of a Deputy Ombudsman.

(5) The position structure and staffing pattern of the Office of the Ombudsman, including the Office of the Special Prosecutor, shall be approved and prescribed by the Ombudsman. The Ombudsman shall appoint all officers and employees of the Office of the Ombudsman, including those of the Office of the Special Prosecutor, in accordance with the Civil Service Law, rules and regulations.

Section 12. Official Stations. — The Ombudsman, the Overall Deputy, the Deputy for Luzon, and the Deputy for the Armed Forces shall hold office in Metropolitan Manila; the Deputy for the Visayas, in Cebu City; and the Deputy for Mindanao, in Davao City. The Ombudsman may transfer their stations within their respective geographical regions, as public interest may require.

Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.

Section 14. Restrictions. — No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law.

Section 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.t has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;

(2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglect to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: provided, that the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action;

(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents;

(6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due prudence: provided, that the Ombudsman under its rules and regulations may determine what cases may not be made public: provided, further, that any publicity issued by the Ombudsman shall be balanced, fair and true;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government, and make recommendations for their elimination and the observance of high standards of ethics and efficiency;

(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein;

(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided;

(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein.

The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties.

Section 16. Applicability. — The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.

Section 17. Immunities. — In all hearings, inquiries, and proceedings of the Ombudsman, including preliminary investigations of offenses, nor person subpoenaed to testify as a witness shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and/or other records on the ground that the testimony or evidence, documentary or otherwise, required of him, may tend to incriminate him or subject him to prosecution: provided, that no person shall be prosecuted

criminally for or on account of any matter concerning which he is compelled, after having claimed the privilege against self-incrimination, to testify and produce evidence, documentary or otherwise.

Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office.

Any refusal to appear or testify pursuant to the foregoing provisions shall be subject to punishment for contempt and removal of the immunity from criminal prosecution.

Section 18. Rules of Procedure. —

(1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or performance of its powers, functions, and duties.

(2) The rules of procedure shall include a provision whereby the Rules of Court are made suppletory.

(3) The rules shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette or in three (3) newspapers of general circulation in the Philippines, one of which is printed in the national language.

Section 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 20. Exceptions. — The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that:

(1) The complainant has an adequate remedy in another judicial or quasi-judicial body;

(2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman;

(3) The complaint is trivial, frivolous, vexatious or made in bad faith;

(4) The complainant has no sufficient personal interest in the subject matter of the grievance; or

(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of.

Section 21. Official 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.

Section 22. Investigatory Power. — The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.

In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities.

Section 23. Formal Investigation. —

(1) Administrative investigations conducted by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process.

(2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be determined within the period prescribed in the civil service law. Any delay without just cause in acting on any referral made by the Office of the Ombudsman shall be a ground for administrative action against the officers or employees to whom such referrals are addressed and shall constitute a graft offense punishable by a fine of not exceeding Five thousand pesos (P5,000.00).

(3) In any investigation under this Act the Ombudsman may: (a) enter and inspect the premises of any office, agency, commission or tribunal; (b) examine and have access to any book, record,

file, document or paper; and (c) hold private hearings with both the complaining individual and the official concerned.

Section 24. Preventives 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 (6) 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.

Section 25. Penalties. —

(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied.

(2) In other administrative proceedings, the penalty ranging from suspension without pay for one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.

Section 26. Inquiries. —

(1) The Office of the Ombudsman shall inquire into acts or omissions of a public officer, employee, office or agency which, from the reports or complaints it has received, the Ombudsman or his Deputies consider to be:

(a) contrary to law or regulation;

(b) unreasonable, unfair, oppressive, irregular or inconsistent with the general course of the operations and functions of a public officer, employee, office or agency;

(c) an error in the application or interpretation of law, rules or regulations, or a gross or palpable error in the appreciation of facts;

(d) based on improper motives or corrupt considerations;

(e) unclear or inadequately explained when reasons should have been revealed; or

(f) inefficient performed or otherwise objectionable.

(2) The Officer of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission.t 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.f 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 (72) hours from receipt thereof.f the answer is found satisfactory, it shall dismiss the case.

(3) When the complaint consists in delay or refusal to perform a duty required by law, or when urgent action is necessary to protect or preserve the rights of the complainant, the Office of the Ombudsman shall take steps or measures and issue such orders directing the officer, employee, office or agency concerned to:

(a) expedite the performance of duty;

(b) cease or desist from the performance of a prejudicial act;

(c) correct the omission;

(d) explain fully the administrative act in question; or

(e) take any other steps as may be necessary under the circumstances to protect and preserve the rights of the complainant.

(4) Any delay or refusal to comply with the referral or directive of the Ombudsman or any of his Deputies, shall constitute a ground for administrative disciplinary action against the officer or employee to whom it was addressed.

Section 27. Effectivity and Finality of Decisions. — (1) 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 any of the following grounds:

(1) New evidence has been discovered which materially affects the order, directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: provided, that only one motion for reconsideration shall be entertained.

Findings of fact by the Officer 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 (1) 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 above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.

Section 28. Investigation in Municipalities, Cities and Provinces. — The Office of the Ombudsman may establish offices in municipalities, cities and provinces outside Metropolitan Manila, under the immediate supervision of the Deputies for Luzon, Visayas and Mindanao, where necessary as determined by the Ombudsman. The investigation of complaints may be assigned to the regional or sectoral deputy concerned or to a special investigator who shall proceed in accordance with the rules or special instructions or directives of the Office of the Ombudsman. Pending investigation the deputy or investigator may issue orders and provisional remedies which are immediately executory subject to review by the Ombudsman. Within three (3) days after concluding the investigation, the deputy or investigator shall transmit, together with the entire records of the case, his report and conclusions to the Office of the Ombudsman. Within five (5) days after receipt of said report, the Ombudsman shall render the appropriate order, directive or decision.

Section 29. Change of Unjust Laws. — If the Ombudsman believes that a law or regulation is unfair or unjust, he shall recommend to the President and to Congress the necessary changes therein or the repeal thereof.

Section 30. Transmittal/Publication of Decision. — In every case where the Ombudsman has reached a decision, conclusion or recommendation adverse to a public official or agency, he shall transmit his decision, conclusion, recommendation or suggestion to the head of the department, agency or instrumentality, or of the province, city or municipality concerned for such immediate action as may be necessary. When transmitting his adverse decision, conclusion or recommendation, he shall, unless excused by the agency or official affected, include the substance of any statement the public agency or official may have made to him by way of explaining past difficulties with or present rejection of the Ombudsman's proposals.

Section 31. Designation of Investigators and Prosecutors. — The Ombudsman may utilize the personnel of his office and/or designate or deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him herein provided shall be under his supervision and control.

The Ombudsman and his investigators and prosecutors, whether regular members of his staff or designated by him as herein provided, shall have authority to administer oaths, to issue subpoena and subpoena duces tecum, to summon and compel witnesses to appear and testify under oath before them and/or bring books, documents and other things under their control, and to secure the attendance or presence of any absent or recalcitrant witness through application before the Sandiganbayan or before any inferior or superior court having jurisdiction of the place where the witness or evidence is found.

Section 32. Rights and Duties of Witness. —

(1) A person required by the Ombudsman to provide the information shall be paid the same fees and travel allowances as are extended to witnesses whose attendance has been required in the trial courts. Upon request of the witness, the Ombudsman shall also furnish him such security for his person and his family as may be warranted by the circumstances. For this purpose, the Ombudsman may, at its expense, call upon any police or constabulary unit to provide the said security.

(2) A person who, with or without service or compulsory process, provides oral or documentary information requested by the Ombudsman shall be accorded the same privileges and immunities as are extended to witnesses in the courts, and shall likewise be entitled to the assistance of counsel while being questioned.

(3) If a person refuses to respond to the Ombudsman's or his Deputy's subpoena, or refuses to be examined, or engages in obstructive conduct, the Ombudsman or his Deputy shall issue an order directing the person to appear before him to show cause why he should not be punished for contempt. The contempt proceedings shall be conducted pursuant to the provisions of the Rules of Court.

Section 33. Duty to Render Assistance to the Office of the Ombudsman. — Any officer or employee of any department, bureau or office, subdivision, agency or instrumentality of the Government, including government-owned or controlled corporations and local governments, when required by the Ombudsman, his Deputy or the Special Prosecutor shall render assistance to the Office of the Ombudsman.

Section 34. Annual Report. — The Office of the Ombudsman shall render an annual report of its activities and performance to the President and to Congress to be submitted within thirty (30) days from the start of the regular session of Congress.

Section 35. Malicious Prosecution. — Any person who, actuated by malice or gross bad faith, files a completely unwarranted or false complaint against any government official or employee shall be subject to a penalty of one (1) month and one (1) day to six (6) months imprisonment and a fine not exceeding Five thousand pesos (P5,000.00).

Section 36. Penalties for Obstruction. — Any person who willfully obstructs or hinders the proper exercise of the functions of the Office of the Ombudsman or who willfully misleads or attempts to mislead the Ombudsman, his Deputies and the Special Prosecutor in replying to their inquiries shall be punished by a fine of not exceeding Five thousand pesos (P5,000.00).

Section 37. Franking Privilege. — All official mail matters and telegrams of the Ombudsman addressed for delivery within the Philippines shall be received, transmitted, and delivered free of charge: provided, that such mail matters when addressed to private persons or nongovernment offices shall not exceed one hundred and twenty (120) grams. All mail matters and telegrams sent through government telegraph facilities containing complaints to the Office of the Ombudsman shall be transmitted free of charge, provided that the telegram shall contain not more than one hundred fifty (150) words.

Section 38. Fiscal Autonomy. — The Office of the Ombudsman shall enjoy fiscal autonomy. Appropriations for the Office of the Ombudsman may not be reduced below the amount appropriated for the previous years and, after approval, shall be automatically and regularly released.

Section 39. Appropriations. — The appropriation for the Office of the Special Prosecutor in the current General Appropriations Act is hereby transferred to the Office of the Ombudsman. Thereafter, such sums as may be necessary shall be included in the annual General Appropriations Act.

Section 40. Separability Clause. — If any provision of this Act is held unconstitutional, other provisions not affected thereby shall remain valid and binding.

Section 41. Repealing Clause. — All laws, presidential decrees, letters of instructions, executive orders, rules and regulations insofar as they are inconsistent with this Act, are hereby repealed or amended as the case may be.

Section 42. Effectivity. — This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or in three (3) newspapers of general circulation in the Philippines.

Approved: November 17, 1989.

Preventive Suspension

RODOLFO T. GANZON, petitioner, vs.THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.

G.R. No. 93746 August 5,1991

MARY ANN RIVERA ARTIEDA, petitioner, vs.HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local Government, NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the Department of Local Government and SALVADOR CABALUNA JR., respondents.

G.R. No. 95245 August 5,1991

RODOLFO T. GANZON, petitioner, vs.THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the Secretary of the Department of Local Government, respondents.

SARMIENTO, J.:

The petitioners take common issue on the power of the President (acting through the Secretary of Local Government), to suspend and/or remove local officials.

The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively.

The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number, filed against him by various city officials sometime in 1988, on various charges, among them, abuse of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. 1 The personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of the respondent Court of Appeals. 2 We quote:

xxx xxx xxx

In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health, Office of Iloilo City charged that due to political reasons, having supported the rival candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an excuse the exigency of the service and the interest of the public, pulled

her out from rightful office where her qualifications are best suited and assigned her to a work that should be the function of a non-career service employee. To make matters worse, a utility worker in the office of the Public Services, whose duties are alien to the complainant's duties and functions, has been detailed to take her place. The petitioner's act are pure harassments aimed at luring her away from her permanent position or force her to resign.

In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to perform task not befitting her position as Assistant City Health Officer of Iloilo City; that her office was padlocked without any explanation or justification; that her salary was withheld without cause since April 1, 1988; that when she filed her vacation leave, she was given the run-around treatment in the approval of her leave in connivance with Dr. Rodolfo Villegas and that she was the object of a well-engineered trumped-up charge in an administrative complaint filed by Dr. Rodolfo Villegas (Annex B).

On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia Pedondo are members of the Sangguniang Panglunsod of the City of Iloilo. Their complaint arose out from the case where Councilor Larry Ong, whose key to his office was unceremoniously and without previous notice, taken by petitioner. Without an office, Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other complainants sympathized with him and decided to do the same. However, the petitioner, together with its fully-armed security men, forcefully drove them away from Plaza Libertad. Councilor Ong denounced the petitioner's actuations the following day in the radio station and decided to hold office at the Freedom Grandstand at Iloilo City and there were so many people who gathered to witness the incident. However, before the group could reach the area, the petitioner, together with his security men, led the firemen using a firetruck in dozing water to the people and the bystanders.

Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges filed against him and no warrant of arrest was issued, Erbite was arrested and detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was allegedly mauled by other detainees thereby causing injuries He was released only the following day. 3

The Mayor thereafter answered 4 and the cases were shortly set for hearing. The opinion of the Court of Appeals also set forth the succeeding events:

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The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21, 1988 at the Regional Office of the Department of Local Government in Iloilo City. Notices, through telegrams, were sent to the parties (Annex L) and the parties received them, including the petitioner. The petitioner asked for a postponement before the scheduled date of hearing and was represented by counsel, Atty. Samuel Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had to come all the way from Manila for the two-day hearings but was actually held only on June 20,1988 in view of the inability and unpreparedness of petitioner's counsel.

The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again, the petitioner attempted to delay the proceedings and moved for a postponement under the excuse that he had just

hired his counsel. Nonetheless, the hearing officers denied the motion to postpone, in view of the fact that the parties were notified by telegrams of the scheduled hearings (Annex M).

In the said hearings, petitioner's counsel cross-examined the complainants and their witnesses.

Finding probable grounds and reasons, the respondent issued a preventive suspension order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days.

Then the next investigation was set on September 21, 1988 and the petitioner again asked for a postponement to September 26,1988. On September 26, 1988, the complainants and petitioner were present, together with their respective counsel. The petitioner sought for a postponement which was denied. In these hearings which were held in Mala the petitioner testified in Adm. Case No. C-10298 and 10299.

The investigation was continued regarding the Malabor case and the complainants testified including their witnesses.

On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the October 24, 1988 hearing to November 7 to 11, 1988 which was granted. However, the motion for change of venue as denied due to lack of funds. At the hearing on November 7, 1988, the parties and counsel were present. Petitioner reiterated his motion to change venue and moved for postponement anew. The counsel discussed a proposal to take the deposition of witnesses in Iloilo City so the hearing was indefinitely postponed. However, the parties failed to come to terms and after the parties were notified of the hearing, the investigation was set to December 13 to 15, 1988.

The petitioner sought for another postponement on the ground that his witnesses were sick or cannot attend the investigation due to lack of transportation. The motion was denied and the petitioner was given up to December 14, 1988 to present his evidence.

On December 14,1988, petitioner's counsel insisted on his motion for postponement and the hearing officers gave petitioner up to December 15, 1988 to present his evidence. On December 15, 1988, the petitioner failed to present evidence and the cases were considered submitted for resolution.

In the meantime, a prima facie evidence was found to exist in the arbitrary detention case filed by Pancho Erbite so the respondent ordered the petitioner's second preventive suspension dated October 11, 1988 for another sixty (60) days. The petitioner was able to obtain a restraining order and a writ of preliminary injunction in the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension was not enforced. 5

Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent Court of Appeals.

Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, 6 (Malabor it is to be noted, is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)

On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda, who had been similary charged by the respondent Secretary, to this Court.

On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two decisions.

In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of January 15, 1991, we gave due course thereto.

Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in hearing the ten cases against him, had denied him due process of law and that the respondent Secretary had been "biased, prejudicial and hostile" towards him 7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng Demokratikong Pilipino party 8 and the running political rivalry they maintained in the last congressional and local elections;9 and his alleged refusal to operate a lottery in Iloilo City. 10 He also alleges that he requested the Secretary to lift his suspension since it had come ninety days prior to an election (the barangay elections of November 14, 1988), 11notwithstanding which, the latter proceeded with the hearing and meted out two more suspension orders of the aforementioned cases. 12 He likewise contends that he sought to bring the cases to Iloilo City (they were held in Manila) in order to reduce the costs of proceeding, but the Secretary rejected his request. 13 He states that he asked for postponement on "valid and justifiable" 14 grounds, among them, that he was suffering from a heart ailment which required confinement; that his "vital" 15 witness was also hospitalized 16 but that the latter unduly denied his request. 17

Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local Government is devoid, in any event, of any authority to suspend and remove local officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746).

As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what manner the Mayor might have been deprived of his rights by the respondent Secretary. His claims that he and Secretary Luis-Santos were (are) political rivals and that his "persecution" was politically motivated are pure speculation and although the latter does not appear to have denied these contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would have under less political circumstances, considering furthermore that "political feud" has often been a good excuse in contesting complaints.

The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted to seduce him to join the administration party and to operate a lottery in Iloilo City. Again, although the Secretary failed to rebut his allegations, we can not accept them, at face value, much more, as judicial admissions as he would have us accept them 18 for the same reasons above-stated and furthermore,

because his say so's were never corroborated by independent testimonies. As a responsible public official, Secretary Santos, in pursuing an official function, is presumed to be performing his duties regularly and in the absence of contrary evidence, no ill motive can be ascribed to him.

As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the hearing on account of the ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds the question to be moot and academic since we have in fact restrained the Secretary from further hearing the complaints against the petitioners. 19

As to his request, finally, for postponements, the Court is afraid that he has not given any compelling reason why we should overturn the Court of Appeals, which found no convincing reason to overrule Secretary Santos in denying his requests. Besides, postponements are a matter of discretion on the part of the hearing officer, and based on Mayor Ganzon's above story, we are not convinced that the Secretary has been guilty of a grave abuse of discretion.

The Court can not say, under these circumstances, that Secretary Santos' actuations deprived Mayor Ganzon of due process of law.

We come to the core question: Whether or not the Secretary of Local Government, as the President's alter ego, can suspend and/or remove local officials.

It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials. According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting the phrase 21 as may be provided by law to strip the President of the power of control over local governments. It is a view, so they contend, that finds support in the debates of the Constitutional Commission. The provision in question reads as follows:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. 22

It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:

Sec. 10. The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all Local governments as may be provided by law, and take care that the laws be faithfully executed. 23

The petitioners submit that the deletion (of "as may be provided by law") is significant, as their argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may provide for it any longer.

It is to be noted that in meting out the suspensions under question, the Secretary of Local Government acted in consonance with the specific legal provisions of Batas Blg. 337, the Local Government Code, we quote:

Sec. 62. Notice of Hearing. — Within seven days after the complaint is filed, the Minister of local Government, or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within seven days from receipt of said complaint, and commence the hearing and investigation of the case within ten days after receipt of such answer of the respondent. No investigation shall be held within ninety days immediately prior to an election, and no preventive suspension shall be imposed with the said period. If preventive suspension has been imposed prior to the aforesaid period, the preventive suspension shall be lifted. 24

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However ' if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of suspension. 25

The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in deleting the phrase "as may be provided by law" intend to divest the President of the power to investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the constitutional language?

It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter did not intend to divest the legislature of its right or the President of her prerogative as conferred by existing legislation to provide administrative sanctions against local officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline.

Autonomy does not, after all, contemplate making mini-states out of local government units, as in the federal governments of the United States of America (or Brazil or Germany), although Jefferson is said to have compared municipal corporations euphemistically to "small republics." 26 Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean local government units from over-dependence on the central government.

It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other things, the passage of a local government code, 27 a local tax law, 28 income distribution legislation, 29 and a national representation law, 30 and measures 31 designed to realize autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places the local government under the general supervision of the Executive. It is noteworthy finally, that the Charter allows Congress to include in the local government code provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President. Thus:

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, 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. 32

As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio, the objective of the framers to strengthen local autonomy by severing congressional control of its affairs, as observed by the Court of Appeals, like the power of local legislation. 33 The Constitution did nothing more, however, and insofar as existing legislation authorizes the President (through the Secretary of Local Government) to proceed against local officials administratively, the Constitution contains no prohibition.

The petitioners are under the impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. It is a mistaken impression because legally, "supervision" is not incompatible with disciplinary authority as this Court has held, 34 thus:

xxx xxx xxx

It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had occasion to discuss the scope and extent of the power of supervision by the President over local government officials in contrast to the power of control given to him over executive officials of our government wherein it was emphasized that the two terms, control and supervision, are two different things which differ one from the other in meaning and extent. Thus in that case the Court has made the following digression: "In administration law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify of set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter." But from this pronouncement it cannot be reasonably inferred that the power of supervision of the President over local

government officials does not include the power of investigation when in his opinion the good of the public service so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35

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"Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of the latter."36 "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. 37 As we held, 38 however, "investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The impression is apparently exacerbated by the Court's pronouncements in at least three cases,Lacson v. Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor General.42 In Lacson, this Court said that the President enjoyed no control powers but only supervision "as may be provided by law,"43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board." 44 However, neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from exercising acts of disciplinary authority because she did not exercise control powers, but because no law allowed her to exercise disciplinary authority. Thus, according to Lacson:

The contention that the President has inherent power to remove or suspend municipal officers is without doubt not well taken. Removal and suspension of public officers are always controlled by the particular law applicable and its proper construction subject to constitutional limitations. 45

In Hebron we stated:

Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrary-which does not et with respect to municipal officers ... 46

In Mondano, the Court held:

... The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge by one affecting the official integrity of the officer in question." Section 86 of the Revised Administration Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of ... municipalities ... . If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79(c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by Section 110(l), Article VII of the Constitution. 47

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In Pelaez, we stated that the President can not impose disciplinary measures on local officials except on appeal from the provincial board pursuant to the Administrative Code. 48

Thus, in those case that this Court denied the President the power (to suspend/remove) it was not because we did not think that the President can not exercise it on account of his limited power, but because the law lodged the power elsewhere. But in those cases ii which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him. 49

The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission to defeat the President's powers. The Court believes that the deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of removal from the President, 50Commissioner Blas Ople would not. 51

The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding the stronger expression of local autonomy under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg. 337 is still in force and effect. 52

As the Constitution itself declares, local autonomy means "a more responsive and accountable local government structure instituted through a system of decentralization." 53 The Constitution as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and inter-dependence between the central administration and local government units, or otherwise, to user in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self- government.

As we observed in one case, 54 decentralization means devolution of national administration but not power to the local levels. Thus:

Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous, In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a

constitutional author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. 55

The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter. What bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing ten administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in the event that all ten cases yield prima faciefindings. The Court is not of course tolerating misfeasance in public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly another question to make him serve 600 days of suspension, which is effectively, to suspend him out of office. As we held: 56

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable to. it is a basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, Ms culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga They were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should be lifted. 57

The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and so also, because it is out of the ordinary to have a vacancy in local government. The sole objective of a suspension, as we have held,59 is simply "to prevent the accused from hampering the normal cause of the investigation with his influence and authority over possible witnesses" 60 or to keep him off "the records and other evidence. 61

It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local official. Under the Local Government Code, it can not exceed sixty days, 62 which is to say that it need not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved their purpose in a shorter span.

Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption of innocence unless and until found guilty.

Suspension finally is temporary and as the Local Government Code provides, it may be imposed for no more than sixty days. As we held, 63 a longer suspension is unjust and unreasonable, and we might add, nothing less than tyranny.

As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor Ganzon is to all intents and purposes, to make him spend the rest of his term in inactivity. It is also to make, to all intents and purposes, his suspension permanent.

It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been proven. Worse, any absolution will be for naught because needless to say, the length of his suspension would have, by the time he is reinstated, wiped out his tenure considerably.

The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive suspensions when apparently, the respondent Secretary has had sufficient time to gather the necessary evidence to build a case against the Mayor without suspending him a day longer. What is intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could have pursued a consolidated effort.

We reiterate that we are not precluding the President, through the Secretary of Interior from exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that power oppressively, and needless to say, with a grave abuse of discretion.

The Court is aware that only the third suspension is under questions, and that any talk of future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the corner (which amounts to a violation of the Local Government Code which brings to light a pattern of suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act.

As we said, we cannot tolerate such a state of affairs.

We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the seven remaining charges are concerned, we are urging the Department of Local Government, upon the finality of this Decision, to undertake steps to expedite the same, subject to Mayor Ganzon's usual remedies of appeal, judicial or administrative, or certiorari, if warranted, and meanwhile, we are precluding the Secretary from meting out further suspensions based on those remaining complaints, notwithstanding findings of prima facie evidence.

In resume the Court is laying down the following rules:

1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of power, in which local officials remain accountable to the central government in the manner the law may provide;

2. The new Constitution does not prescribe federalism;

3. The change in constitutional language (with respect to the supervision clause) was meant but to deny legislative control over local governments; it did not exempt the latter from legislative regulations provided regulation is consistent with the fundamental premise of autonomy;

4. Since local governments remain accountable to the national authority, the latter may, by law, and in the manner set forth therein, impose disciplinary action against local officials;

5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the President does not have);

6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no longer be suspended for the offenses he was charged originally; provided:

a) that delays in the investigation of those charges "due to his fault, neglect or request, (the time of the delay) shall not be counted in computing the time of suspension. [Supra, sec. 63(3)]

b) that if during, or after the expiration of, his preventive suspension, the petitioner commits another or other crimes and abuses for which proper charges are filed against him by the aggrieved party or parties, his previous suspension shall not be a bar to his being preventively suspended again, if warranted under subpar. (2), Section 63 of the Local Government Code.

WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED, provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any of the remaining administrative charges pending against him for acts committed prior to August 11, 1988. The Secretary of Interior is ORDERED to consolidate all such administrative cases pending against Mayor Ganzon.

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ concur.

JESUS S. CONDUCTO, complainant, vs. JUDGE ILUMINADO C. MONZON, respondent.

R E S O L U T I O N

DAVIDE, JR., J.:

In a sworn letter-complaint dated 14 October 1996, [1] complainant charged respondent Judge Iluminado C. Monzon of the Municipal Trial Court in Cities, San Pablo City, with ignorance of law, in that he deliberately refused to suspend a barangay chairman who was charged before his court with the crime of unlawful appointment under Article 244 of the Revised Penal Code.

The factual antecedents recited in the letter-complaint are not controverted.

On 30 August 1993, complainant filed a complaint with the Sangguniang Panlungsod of San Pablo City against one Benjamin Maghirang, the barangay chairman of Barangay III-E of San Pablo City, for abuse of authority, serious irregularity and violation of law in that, among other things, said respondent Maghirang appointed his sister-in-law, Mrs. Florian Maghirang, to the position of barangay secretary on 17 May 1989 in violation of Section 394 of the Local Government Code. At the same time, complainant filed a complaint for violation of Article 244 of the Revised Penal Code with the Office of the City Prosecutor against Maghirang, which was, however, dismissed[2] on 30 September 1993 on the ground that Maghirang’s sister-in-law was appointed before the effectivity of the Local Government Code of 1991, which prohibits a punong barangay from appointing a relative within the fourth civil degree of consanguinity or affinity as barangay secretary. The order of dismissal was submitted to the Office of the Deputy Ombudsman for Luzon.

On 22 October 1993, complainant obtained Opinion No. 246, s. 1993 [3] from Director Jacob Montesa of the Department of Interior and Local Government, which declared that the appointment issued by Maghirang to his sister-in-law violated paragraph (2), Section 95 of B.P. Blg. 337, the Local Government Code prior to the Local Government Code of 1991.

In its Revised Resolution of 29 November 1993,[4] the Office of the Deputy Ombudsman for Luzon dismissed the case, but ordered Maghirang to replace his sister-in-law as barangay secretary.

On 20 December 1993, complainant moved that the Office of the Deputy Ombudsman for Luzon reconsider[5] the order of 29 November 1993, in light of Opinion No. 246, s. 1993 of Director Montesa.

Acting on the motion, Francisco Samala, Graft Investigation Officer II of the Office of the Deputy Ombudsman for Luzon, issued an order[6] on 8 February 1994 granting the motion for reconsideration and recommending the filing of an information for unlawful appointment (Article 244 of the Revised Penal Code) against Maghirang. The recommendation was duly approved by Manuel C. Domingo, Deputy Ombudsman for Luzon.

In a 3rd indorsement dated 4 March 1994,[7] the Deputy Ombudsman for Luzon transmitted the record of the case to the Office of the City Prosecutor of San Pablo City and instructed the latter to file the corresponding information against Maghirang with the proper court and to prosecute the case. The information for violation of Article 244 of the Revised Penal Code was forthwith filed with the Municipal

Trial Court in Cities in San Pablo City and docketed as Criminal Case No. 26240. On 11 April 1994, the presiding judge, respondent herein, issued a warrant for the arrest of Maghirang, with a recommendation of a P200.00 bond for his provisional liberty.

With prior leave from the Office of the Deputy Ombudsman for Luzon, on 4 May 1995, the City Prosecutor filed, in Criminal Case No. 26240, a motion for the suspension[8] of accused Maghirang pursuant to Section 13 of R.A. No. 3019, as amended, which reads, in part:

SEC. 13. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a single or as complex offense and in whatever stage of execution and mode of participation, is pending in Court, shall be suspended from office.

In his Order of 30 June 1995, [9] respondent judge denied the motion for suspension on the ground that:

[T]he alleged offense of UNLAWFUL APPOINTMENT under Article 244 of the Revised Penal Code was committed on May 17, 1989, during [Maghirang’s] terms (sic) of office from 1989 to 1994 and said accused was again re-elected as Barangay Chairman during the last Barangay Election of May 9, 1994, hence, offenses committed during previous term is (sic) not a cause for removal (Lizarez vs. Hechanova, et al., G.R. No. L-22059, May 17, 1965); an order of suspension from office relating to a given term may not be the basis of contempt with respect to ones (sic) assumption of the same office under a new term (Oliveros vs. Villaluz, G.R. No. L-34636, May 30, 1971) and, the Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would deprieve (sic) the people of their right to elect their officer. 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 fault or misconduct (sic), if he had been guilty if any. (Aguinaldo vs. Santos, et al., G.R. No. 94115, August 21, 1992).

The prosecution moved for reconsideration[10] of the order, alleging that the court had confused removal as a penalty in administrative cases and the “temporary removal from office (or suspension) as a means of preventing the public official, while the criminal case against him is pending, from exerting undue influence, intimidate (sic) witnesses which may affect the outcome of the case; the former is a penalty or sanction whereas the latter is a mere procedural remedy.” Accordingly, “while a re-elected public official cannot be administratively punished by removing him from office for offenses committed during his previous term, … said public official can be temporarily removed to prevent him from wielding undue influence which will definitely be a hindrance for justice to take its natural course.” The prosecution then enumerated the cases decided by this Court reiterating the rule that what a re-election of a public official obliterates are only administrative, not criminal, liabilities, incurred during previous terms.[11]

In his order of 3 August 1995,[12] respondent denied the motion for reconsideration, thus:

There is no dispute that the suspension sought by the prosecution is premised upon the act charged allegedly committed during the accused [sic] previous term as Barangay Chairman of Brgy. III-E. San Pablo City, who was subsequently re-elected as Barangay Chairman again during the last Barangay Election of May 9, 1994. Certainly, had not the accused been re-elected the prosecution will not file the instant motion to suspend him as there is no legal basis or the issue has become academic.

http://sc.judiciary.gov.ph/jurisprudence/1998/jul1998/am_mtj_98_1147.htm#_edn12












The instant case run [sic] parallel with the case of Lizares vs. Hechanova, et al., L-22059, May 17, 1966, 17 SCRA 58, wherein the Supreme Court subscribed to the rule denying the right to remove from office because of misconduct during a prior term.

It is opined by the Court that preventive suspension is applicable only if there is [sic] administrative case filed against a local official who is at the same time criminally charged in Court. At present, the records of the Court shows [sic] that there is no pending administrative case existing or filed against the accused.

It was held in the concluding paragraph of the decision by the Honorable Supreme Court in Lizares vs. Hechanova, et al., that “Since petitioner, having been duly re-elected, is no longer amenable to administrative sanctions for any acts committed during his former tenure, the determination whether the respondent validly acted in imposing upon him one month’s suspension for act [sic] done during his previous term as mayor is now merely of theoretical interest.”

Complainant then moved that respondent inhibit himself from Criminal Case No. 26240. In his order of 21 September 1995,[13] respondent voluntarily inhibited himself. The case was assigned to Judge Adelardo S. Escoses per order of Executive Judge Bienvenido V. Reyes of the Regional Trial Court of San Pablo City.

On 15 October 1996, complainant filed his sworn letter-complaint with the Office of the Court Administrator.

In his comment dated 14 February 1997, filed in compliance with the resolution of this Court of 27 January 1997, respondent asserted that he had been “continuously keeping abreast of legal and jurisprudential development [sic] in the law” since he passed the 1955 Bar Examinations; and that he issued the two challenged orders “only after due appreciation of prevailing jurisprudence on the matter,” citing authorities in support thereof. He thus prayed for dismissal of this case, arguing that to warrant a finding of ignorance of law and abuse of authority, the error must be “so gross and patent as to produce an inference of ignorance or bad faith or that the judge knowingly rendered an unjust decision.”[14] He emphasized, likewise, that the error had to be “so grave and on so fundamental a point as to warrant condemnation of the judge as patently ignorant or negligent;” [15] “otherwise, to hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and that would be intolerable.”[16]

Respondent further alleged that he earned complainant’s ire after denying the latter’s Motion for the Suspension of Barangay Chairman Maghirang, which was filed only after Maghirang was re-elected in 1994; and that complainant made inconsistent claims, concretely, while in his letter of 4 September 1995 requesting respondent to inhibit from the case, complainant declared that he believed in respondent’s integrity, competence and dignity, after he denied the request, complainant branded respondent as a “judge of poor caliber and understanding of the law, very incompetent and has no place in Court of Justice.”

Finally, respondent Judge avowed that he would not dare soil his judicial robe at this time, for he had only three (3) years and nine (9) months more before reaching the compulsory age of retirement of seventy (70); and that for the last 25 years as municipal judge in the seven (7) towns of Laguna and as presiding judge of the MTCC, San Pablo City, he had maintained his integrity.

In compliance with the Court’s resolution of 9 March 1998, the parties, by way of separate letters, informed the Court that they agreed to have this case decided on the basis of the pleadings already filed, with respondent explicitly specifying that only the complaint and the comment thereon be considered.

The Office of the Court Administrator (OCA) recommends that this Court hold respondent liable for ignorance of the law and that he be reprimanded with a warning that a repetition of the same or similar acts in the future shall be dealt with more severely. In support thereof, the OCA makes the following findings and conclusions:

The claim of respondent Judge that a local official who is criminally charged can be preventively suspended only if there is an administrative case filed against him is without basis. Section 13 of RA 3019 (Anti-Graft and Corrupt Practices Act) states that:

“Suspension and loss of benefits – Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.”

It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to suspend any public officer against whom a valid information charging violation of this law, Book II, Title 7 of the RPC, or any offense involving fraud upon government or public funds or property is filed in court. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. All that is required is for the court to make a finding that the accused stands charged under a valid information for any of the above-described crimes for the purpose of granting or denying the sought for suspension. (Bolastig vs. Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235 SCRA 103).

In the same case, the Court held that “as applied to criminal prosecutions under RA 3019, preventive suspension will last for less than ninety (90) days only if the case is decided within that period; otherwise, it will continue for ninety (90) days.”

Barangay Chairman Benjamin Maghirang was charged with Unlawful Appointment, punishable under Article 244, Title 7, Book II of the Revised Penal Code. Therefore, it was mandatory on Judge Monzon’s part, considering the Motion filed, to order the suspension of Maghirang for a maximum period of ninety (90) days. This, he failed and refused to do.

Judge Monzon’s contention denying complainant’s Motion for Suspension because “offenses committed during the previous term (is) not a cause for removal during the present term” is untenable. In the case of Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the Court held that “the rule is that a public official cannot 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 committed during a prior term, to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases x x x” (Underscoring supplied)

Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA 1292, that “The ruling, therefore, 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’ refers only to an action for removal from office and does not apply to a criminal case.” (Underscoring ours)





Clearly, even if the alleged unlawful appointment was committed during Maghirang’s first term as barangay chairman and the Motion for his suspension was only filed in 1995 during his second term, his re-election is not a bar to his suspension as the suspension sought for is in connection with a criminal case.

Respondent’s denial of complainant’s Motion for Reconsideration left the complainant with no other judicial remedy. Since a case for Unlawful Appointment is covered by Summary Procedure, complainant is prohibited from filing a petition for certiorari, mandamus or prohibition involving an interlocutory order issued by the court. Neither can he file an appeal from the court’s adverse final judgment, incorporating in his appeal the grounds assailing the interlocutory orders, as this will put the accused in double jeopardy.

All things considered, while concededly, respondent Judge manifested his ignorance of the law in denying complainant’s Motion for Suspension of Brgy. Chairman Maghirang, there was nothing shown however to indicate that he acted in bad faith or with malice. Be that as it may, it would also do well to note that good faith and lack of malicious intent cannot completely free respondent from liability.

This Court, in the case of Libarios and Dabalos, 199 SCRA 48, ruled:

“In the absence of fraud, dishonesty or corruption, the acts of a judge done in his judicial capacity are not subject to disciplinary action, even though such acts may be erroneous. But, while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet, it is highly imperative that they should be conversant with basic principles.

A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in their grasp of legal principles.”

The findings and conclusions of the Office of the Court Administrator are in order. However, the penalty recommended, i.e., reprimand, is too light, in view of the fact that despite his claim that he has been “continuously keeping abreast of legal and jurisprudential development [sic] in law” ever since he passed the Bar Examinations in 1995, respondent, wittingly or otherwise, failed to recall that as early as 18 December 1967 in Ingco v. Sanchez,[17] this Court explicitly ruled that the re-election of a public official extinguishes only the administrative, but not the criminal, liability incurred by him during his previous term of office, thus:

The ruling, therefore, that -- “when the people have elected a man to his 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” -- refers only to an action for removal from office and does not apply to a criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a public officer is concerned. Also, under the Constitution, it is only the President who may grant the pardon of a criminal offense.

In Ingco, this Court did not yield to petitioner’s insistence that he was benefited by the ruling in Pascual v. Provincial Board of Nueva Ecija[18] that a public officer should never be removed for acts done prior to his present term of office, as follows:

There is a whale of a difference between the two cases. The basis of the investigation which has been commenced here, and which is sought to be restrained, is a criminal accusation the object of which is to cause the indictment and punishment of petitioner-appellant as a private citizen; whereas in the cases cited, the subject of the investigation was an administrative charge against the officers therein involved and its object was merely to cause his suspension or removal from public office. While the criminal cases involves the character of the mayor as a private citizen and the People of the Philippines as a community is a party to the case, an administrative case involves only his actuations as a public officer as [they] affect the populace of the municipality where he serves.[19]

Then on 20 June 1969, in Luciano v. The Provincial Governor, et al.,[20] this Court likewise categorically declared that criminal liabilities incurred by an elective public official during his previous term of office were not extinguished by his re-election, and that Pascual v. Provincial Governor and Lizares v. Hechanova referred only to administrative liabilities committed during the previous term of an elective official, thus:

1. The first problem we are to grapple with is the legal effect of the reelection of respondent municipal officials. Said respondents would want to impress upon us the fact that in the last general elections of November 14,1967 the Makati electorate reelected all of them, except that Vice-Mayor Teotimo Gealogo, a councilor prior thereto, was elevated to vice-mayor. These respondents contend that their reelection erected a bar to their removal from office for misconduct committed prior to November 14, 1967. It is to be recalled that the acts averred in the criminal information in Criminal Case 18821 and for which they were convicted allegedly occurred on or about July 26, 1967, or prior to the 1967 elections. They ground their position on Pascual vs. Provincial Board of Nueva Ecija, 106 Phil. 466, and Lizares vs. Hechanova, 17 SCRA 58.

A circumspect view leaves us unconvinced of the soundness of respondents' position. The two cases relied upon have laid down the precept that a reelected public officer is no longer amenable to administrativesanctions for acts committed during his former tenure. But the present case rests on an entirely different factual and legal setting. We are not here confronted with administrative charges to which the two cited cases refer. Here involved is a criminal prosecution under a special statute, the Anti-Graft and Corrupt Practices Act (Republic Act 3019).

Then again, on 30 May 1974, in Oliveros v. Villaluz,[21] this Court held:

I

The first question presented for determination is whether a criminal offense for violation of Republic Act 3019 committed by an elective officer during one term may be the basis of his suspension in a subsequent term in the event of his reelection to office.

Petitioner concedes that "the power and authority of respondent judge to continue trying the criminal case against petitioner may not in any way be affected by the fact of petitioner's reelection," but contends that "said respondent's power to preventively suspend petitioner under section 13 of Republic Act 3019 became inefficacious upon petitioner's reelection"






arguing that the power of the courts cannot be placed over that of sovereign and supreme people who ordained his return to office.

Petitioner's reliance on the loose language used in Pascual vs. Provincial Board of Nueva Ecija that "each term is separate from other terms and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor" is misplaced.

The Court has in subsequent cases made it clear that the Pascual ruling (which dealt with administrative liability) applies exclusively to administrative and not to criminal liability and sanctions. Thus, in Ingco vs. Sanchez the Court ruled that the reelection of a public officer for a new term does not in any manner wipe out the criminal liability incurred by him in a previous term.

In Luciano vs. Provincial Governor the Court stressed that the cases of Pascual and Lizares are authority for the precept that "a reelected public officer is no longer amenable to administrative sanctions for acts committed during his former tenure" but that as to criminal prosecutions, particularly, for violations of the Anti-Graft and Corrupt Practices Act, as in the case at bar, the same are not barred by reelection of the public officer, since, inter alia, one of the penalties attached to the offense is perpetual disqualification from public office and it "is patently offensive to the objectives and the letter of the Anti-Graft and Corrupt Practice Act . . . that an official may amass wealth thru graft and corrupt practices and thereafter use the same to purchase reelection and thereby launder his evil acts."

Punishment for a crime is a vindication for an offense against the State and the body politic. The small segment of the national electorate that constitutes the electorate of the municipality of Antipolo has no power to condone a crime against the public justice of the State and the entire body politic. Reelection to public office is not provided for in Article 89 of the Revised Penal Code as a mode of extinguishing criminal liability incurred by a public officer prior to his reelection. On the contrary, Article 9 of the Anti-Graft Act imposes as one of the penalties in case of conviction perpetual disqualification from public office and Article 30 of the Revised Penal Code declares that such penalty of perpetual disqualification entails "the deprivation of the public offices and employments which the offender may have held, even if conferred by popular election."

It is manifest then, that such condonation of an officer's fault or misconduct during a previous expired term by virtue of his reelection to office for a new term can be deemed to apply only to his administrativeand not to his criminal guilt. As succinctly stated in then Solicitor General (now Associate Justice) Felix Q. Antonio's memorandum for the State, "to hold that petitioner's reelection erased his criminal liability would in effect transfer the determination of the criminal culpability of an erring official from the court to which it was lodged by law into the changing and transient whim and caprice of the electorate. This cannot be so, for while his constituents may condone the misdeed of a corrupt official by returning him back to office, a criminal action initiated against the latter can only be heard and tried by a court of justice, his nefarious act having been committed against the very State whose laws he had sworn to faithfully obey and uphold. A contrary rule would erode the very system upon which our government is based, which is one of laws and not of men."

Finally, on 21 August 1992, in Aguinaldo v. Santos,[22] this Court stated:

Clearly then, the rule is that a public official cannot be removed from 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.

Thus far, no ruling to the contrary has even rippled the doctrine enunciated in the above-mentioned cases. If respondent has truly been “continuously keeping abreast of legal and jurisprudential development [sic] in the law,” it was impossible for him to have missed or misread these cases. What detracts from his claim of assiduity is the fact that he even cited the cases ofOliveros v. Villaluz and Aguinaldo v. Santos in support of his 30 June 1995 order. What is then evident is that respondent either did not thoroughly read these cases or that he simply miscomprehended them. The latter, of course, would only manifest either incompetence, since both cases were written in plain and simple language thereby foreclosing any possibility of misunderstanding or confusion; or deliberate disregard of a long settled doctrine pronounced by this Court.

While diligence in keeping up-to-date with the decisions of this Court is a commendable virtue of judges -- and, of course, members of the Bar -- comprehending the decisions is a different matter, for it is in that area where one’s competence may then be put to the test and proven. Thus, it has been said that a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and aware of well-settled and authoritative doctrines.[23] He should strive for excellence, exceeded only by his passion for truth, to the end that he be the personification of justice and the Rule of Law.[24]

Needless to state, respondent was, in this instance, wanting in the desired level of mastery of a revered doctrine on a simple issue.

On the other hand, if respondent judge deliberately disregarded the doctrine laid down in Ingco v. Sanchez and reiterated in the succeeding cases of Luciano v. Provincial Governor, Oliveros v. Villaluz and Aguinaldo v. Santos, it may then be said that he simply wished to enjoy the privilege of overruling this Court’s doctrinal pronouncements. On this point, and as a reminder to all judges, it is apropos to quote what this Court said sixty-one years ago in People v. Vera:[25]

As already observed by this Court in Shioji vs. Harvey [1922], 43 Phil., 333, 337), and reiterated in subsequent cases “if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result.” A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation.

Likewise, in Luzon Stevedoring Corp. v. Court of Appeals:[26]

The spirit and initiative and independence on the part of men of the robe may at times be commendable, but certainly not when this Court, not once but at least four times, had indicated what the rule should be. We had spoken clearly and unequivocally. There was no ambiguity in what we said. Our meaning was clear and unmistakable. We did take pains to explain why it must be thus. We were within our power in doing so. It would not be too much to expect, then, that tribunals in the lower rungs of the judiciary would at the very least, take notice and yield deference. Justice Laurel had indicated in terms too clear for misinterpretation what is expected of them. Thus: “A becoming modesty of inferior court[s] demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation.”[27] In the constitutional sense,







respondent Court is not excluded from such a category. The grave abuse of discretion is thus manifest.

In Caram Resources Corp. v. Contreras,[28] this Court affirmed that by tradition and in our system of judicial administration, this Court has the last word on what the law is, and that its decisions applying or interpreting the Constitution and laws form part of this country’s legal system. [29] All other courts should then be guided by the decisions of this Court. To judges who find it difficult to do so, Vivo v. Cloribel[30] warned:

Now, if a Judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the application of a doctrine promulgated by this Superiority is against his way of reasoning, or against his conscience, he may state his opinion on the matter, but rather than disposing of the case in accordance with his personal views he must first think that it is his duty to apply the law as interpreted by the Highest Court of the Land, and that any deviation from the principle laid down by the latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the litigants. And if despite of what is here said, a Judge, still believes that he cannot follow Our rulings, then he has no other alternative than to place himself in the position that he could properly avoid the duty of having to render judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do that.

Finally, the last sentence of Canon 18 of the Canons of Judicial Ethics directs a judge to administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law.

That having been said, we cannot but conclude that the recommended penalty of reprimand is not commensurate with the misdeed committed. A fine of P5,000.00, with a warning that a commission of similar acts in the future shall be dealt with more severely is, at the very least, appropriate, considering respondent is due for compulsory retirement on 29 November 2000 and that this is his first offense.

WHEREFORE, for incompetence as a result of ignorance of a settled doctrine interpreting a law, or deliberate disregard of such doctrine in violation of Canon 18 of the Canons of Judicial Ethics, respondent Judge Iluminado C. Monzon is hereby FINED in the amount of Five Thousand Pesos (P5,000.00) and warned that the commission of similar acts in the future shall be dealt with more severely.

SO ORDERED.

Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur.




GOVERNOR BENJAMIN I. ESPIRITU, petitioner, vs.NELSON B. MELGAR and HON. JUDGE MARCIANO T. VIROLA, respondents.

GRIÑO-AQUINO, J.:

The issue in this special civil action of certiorari and prohibition is the jurisdiction of respondent Judge of the Regional Trial Court of Oriental Mindoro to stop the provincial governor from placing a municipal mayor under preventive suspension pending the investigation of administrative charges against the latter.

On April 11, 1991, one Ramir Garing of Naujan, Oriental Mindoro, filed a sworn letter-complaint with Secretary Luis Santos of the Department of Interior and Local Government charging Mayor Nelson Melgar of Naujan, Oriental Mindoro, with grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of the public service. The charge against Mayor Melgar reads:

On or about 4:30 in the afternoon of March 26, 1991, in the Municipality of Naujan, Oriental Mindoro, the aforementioned person, Nelson Melgar, being the Municipal Mayor of Naujan, Oriental Mindoro, with abuse of official function, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of Ramir Garing, by then and there boxing and kicking thereby inflicting upon the latter physical injuries on different parts of his body and not being contented ordered his arrest and detention in the municipal jail of Naujan, Oriental Mindoro without filing any charges until he was released the following day March 27, 1991 at about 8:30 in the morning. (p. 30, Rollo.)

An identical letter-complaint was filed by Garing with the Provincial Governor of Oriental Mindoro (herein petitioner Governor Benjamin I. Espiritu) accusing Mayor Melgar of the same violations of law and requesting that the mayor be placed under preventive suspension pending investigation of the charges.

A third complaint filed by Garing with the Presidential Action Center, Office of the President of the Philippines, was forwarded to Governor Espiritu with a request for prompt action (Annex "C", p. 36, Rollo).

On April 22, 1991, the Sangguniang Panlalawigan of Oriental Mindoro required Mayor Melgar to answer the complaint, which was docketed as Adm. Case No. 91-01 (Annex "D", p. 37, Rollo).

On May 22, 1991, Mayor Melgar submitted his answer in which he recounted the events of March 26, 1991 that led to the filing of Garing's complaint against him:

At around 6:30 in the evening of 26 March 1991, while I was in the middle of my speech at the Naujan Public Gymnasium, this Municipality, where the Jose L. Basa Memorial graduation ceremonies were then being held, a prolonged but nonetheless loud and intermittent clapping suddenly erupted from one of the numerous people then in attendance. I paused. The handclapping stopped. I resumed my speech. The fellow started all over again.

The audience was visibly disturbed and I found myself unable to proceed not because I could not collect my thoughts but because I felt the solemnity of the occasion had irreversibly been shattered by a rudeness so totally unexpected.

I ended my speech and instructed a policeman to investigate the culprit who turned out to be Ramir Garing. He was drunk. I did not hurt him as can be gathered from his medical certificate (Annex "B" to the complaint) which palpably contradicts his affidavit (Annex "A" to the complaint).

I was informed that said Ramir Garing was momentarily placed in custody for his own protection because he was drunk. An open knife (balisong) was taken from him. I was likewise informed that after he had sobered up, he was told to go home, but he refused to go and only did so the following morning.

Certainly under the circumstances, charges could have been filed against Ramir Garing under the provisions of Article 153 of the Revised Penal Code and also for possession and concealment of a deadly weapon. Still, as a local Chief Executive, who to most people represent (sic) a sovereign government, and who, at the cost of foregoing personal vindication must avoid any appearance of vindictiveness, I instructed my policemen not to file charges against him.

Attached hereto for your further reference are the joint affidavit of teachers of the J.L. Basa Memorial School as Annex "A", the joint affidavit of the Municipal Jailer and the Police Investigator as Annex "B", the affidavit of Fireman 1st Class Roy Lomio as Annex "C", and a xerox copy of the pages in the Police Blotter where the incident in question was entered. (pp. 40-41, Rollo).

After evaluating the complaint and its supporting documents, as well as the Mayor's answer and the affidavits of his witnesses, the Sangguniang Panlalawigan of Oriental Mindoro passed Resolution No. 55 on May 9, 1991, recommending to the Provincial Governor that respondent Mayor be preventively suspended for forty-five (45) days pending the investigation of the administrative complaint (Annex "H, p. 49, Rollo).

On May 23, 1991, Mayor Melgar filed a motion to dismiss the administrative complaint (Annex "I", pp. 51-55, Rollo). It was opposed by Garing.

On June 6, 1991, the Sangguniang Panlalawigan denied the motion to dismiss (Res. No. 72, p. 62 Rollo; Annex "L" to the Petition).

Meanwhile, pursuant to the recommendation of the Sangguniang Panlalawigan in its Resolution No. 55, Governor Espiritu placed Mayor Melgar under preventive suspension on May 28, 1991 on the ground that:

. . . there is reasonable ground to believe that respondent Mayor Nelson B. Melgar of Naujan, Oriental Mindoro, has committed the acts stated in the complaint and affidavit of Ramir Garing and corroborated by the affidavits (Exhibits A, C & D) of his witnesses, namely: Lydia V. Garing, Nelson Tabor and Javier Dagdagan, all of Poblacion II, Naujan, Oriental Mindoro. (p. 63, Rollo)

On June 3, 1991, Mayor Melgar received the Order of Suspension (Annex "M", p. 63, Rollo). He forthwith filed a "Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the Regional

Trial Court of Oriental Mindoro (Spl. Civil Action No. R-5003) alleging that "the order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor (pp. 68-69, Rollo).

On June 24, 1991, RTC Judge Virola issued a writ of preliminary injunction enjoining Governor Espiritu from implementing the Order of suspension against Mayor Melgar for:

The Court is more inclined to believe the answer under oath of the respondent and the sworn statements of his witnesses attached to the Answer in the administrative case than the complaint under oath in the administrative case which are the evidence to be considered in determining whether or not the order of preventive suspension was issued in accordance with law. There is no reason to doubt the sworn statements of the numerous public school teachers and members of the PNP. Besides, the medical certificate issued in connection with the treatment of the complainant in the administrative case tends to corroborate the theory of the respondent and contradict that of the complaint in the administrative case. The abrasions on the right arm of the complainant in the administrative case tend to show that said complainant was held tightly by the hands by the PNP because he was then drunk, in possession of a balisong knife and causing serious disturbance and not because he was boxed and kicked by herein petitioner. (pp. 75-76, Rollo.)

Governor Espiritu filed a motion to dismiss and/or for reconsideration which Judge Virola denied on July 16, 1991. Hence, this petition for certiorari and prohibition.

Without giving due course to the petition, we required the private respondent to comment and we issued a Temporary Restraining Order commanding respondent Judge to cease and desist from further proceeding in Special Civil Action No. R-5003 (pp. 106-107, Rollo). On August 22, 1991, Mayor Melgar filed an "Urgent Motion to Lift Temporary Restraining Order" which the petitioner opposed and the Court denied (p. 127-155, Rollo).

Petitioner submits that respondent Judge Virola acted without jurisdiction or with grave abuse of discretion in issuing: (1) the writ of preliminary injunction restraining Governor Espiritu from implementing the order of preventive suspension, and (2) in denying petitioner's motion to dismiss Special Civil Action No. R-5003, for:

a) Petitioner, as Provincial Governor, is empowered by Section 63 of the Local Government Code to place an elective municipal official under preventive suspension pending decision of an administrative case against the elective municipal official:

b) Petitioner did not commit a grave abuse of discretion in placing respondent mayor under preventive suspension; if at all, his error was an error of judgment which is not correctible bycertiorari;

c) By express provision of Section 61 of the Local Government Code, the Sangguniang Panlalawigan has jurisdiction over complaints against any elective municipal official; on the other hand, Section 19(c) of the Judiciary Reorganization Act of 1980 withdraws from regional trial courts jurisdiction over cases within the exclusive jurisdiction of any person, tribunal or body exercising judicial or quasi-judicial functions. Thus, by practically deciding the administrative case on the merits, the respondent court acted without jurisdiction; and

d) Respondent Mayor had a remedy of appeal under Section 66 of the Local Government Code.

Section 63, Chapter IV of the Local Government Code provides:

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at anytime after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.

(3) At the expiration of sixty-days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of the suspension.

Clearly, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist:

1. When there is reasonable ground to believe that the respondent has committed the act or acts complained of;

2. When the evidence of culpability is strong;

3. When the gravity of the offense so warrants; or

4. When the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence (Nera vs. Garcia and Elicaño, 106 Phil. 1031). Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses (Lacson vs. Roque, 92 Phil. 456).

Since respondent mayor believed that his preventive suspension was unjustified and politically motivated, he should have sought relief first from the Secretary of Interior and Local Government, not from the courts. Mayor Melgar's direct recourse to the courts without exhausting administrative remedies was premature (Aboitiz & Co. Inc. vs. Collector of Customs, 83 SCRA 265; Garcia vs. Teehankee, 27 SCRA 937; Manuel

vs. Jimenez, 17 SCRA 55; Bongcawil vs. Provincial Board of Lanao del Norte, 10 SCRA 327; The Phil Veterans Affairs Office vs. Fariñas, et al., AC-G.R. SP No. 05937, July 5, 1985; Bonafe vs. Zurbano, 131 SCRA 9). The regional trial court had no jurisdiction over Special Civil Action No. R-5003 and gravely abused its discretion in refusing to dismiss the case.

There may exist honest differences of opinion with regard to the seriousness of the charges, or as to whether they warrant disciplinary action. However, as a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and sufficiency of the cause ( 17 R.C.L. Sec. 233 cited in Attorney General vs. Doherty, 13 Am. Rep. 132). So, unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the principle of separation of powers demand that the action of said officer or body should be left undisturbed.

However, in this particular case, since the 60-day preventive suspension of Mayor Melgar was maintained by the Temporary Restraining Order which we issued on August 6, 1991, and therefore has already been served, he is deemed reinstated in office without prejudice to the continuation of the administrative investigation of the charges against him (Sec. 63, subpar. 3, Local Government Code).

WHEREFORE, the petition for certiorari and prohibition is granted. The writ of preliminary injunction dated June 24, 1991 in Special Civil Action No. R-5003 is hereby annulled and set aside. Said Special Civil Action No. R-5003 is dismissed.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

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

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DECISION PUNO, J.:

First, the facts.

The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees.[1]Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312.[2] In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the Ombudsman’s preventive suspension order: (a) issued a memorandum addressed to Navarro advising her that he was assuming his position as City Mayor; [3] (b) gave directives to the heads of offices and other employees;[4] (c) issued Office Order No. 11-021 which authorized certain persons to start work; [5] and (d) insisted on performing the functions and duties of Mayor despite Navarrro’s requests to desist from doing so without a valid court order and in spite of the order of Department of Interior and Local Government (DILG) Undersecretary Manuel Sanchez directing him to cease from reassuming the position.[6] Vice Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code (RPC).[7]

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

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a reinvestigation of the case in light of the manifestations made by prosecution and defense counsel.[12] After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal of the case in a Resolution dated 14 September 2000.[13] Coquia held that Miranda reassumed his office in “good faith” and on “mistake of fact” due to the “difficult questions of law” involved.[14]

Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia’s resolution to the Ombudsman’s Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquia’s findings and recommended the filing of the case against Mayor Miranda.[15] He pointed out that Mayor Miranda’s invocation of good faith was belied by the fact that he received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable and that he should serve

out its remaining period.[16] He further noted that Miranda violated the orders of both the Ombudsman and the DILG.[17] Ombudsman Desierto adopted the Chief Legal Counsel’s recommendation,[18] and the case was re-raffled to Special Prosecution Officer Evelyn T. Lucero. Subsequently, the prosecution filed an amended Information with the Sandiganbayan,[19] to which the petitioner interposed a negative plea.[20]

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

In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor Miranda from office for 90 days.[23] The anti-graft court held that a violation of Article 177 of the RPC involves fraud “which in a general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another.”[24] It further ruled that Miranda’s act fell within the catch-all provision “x x x or for any offense involving fraud upon government.”[25] Miranda’s motion for reconsideration was denied in the Sandiganbayan’s Resolution dated 17 June 2002.[26] Hence, the present petition assailing the Sandiganbayan’s orders of preventive suspension. The petitioner contends that the Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground not authorized by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts involving public funds or property; and (2) whether the crime of usurpation of authority or official functions involves “fraud upon government or public funds or property” found in Section 13 of R.A. No. 3019.

We rule in the negative.

First. Section 13 of R.A. No. 3019, as amended, provides:Section 13. Suspension and loss of benefits. — Any incumbent public

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

In the event that such convicted officer, who may have already been

separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of

offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any legislative

intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase “any offense involving fraud upon government or public funds or property” is clear and categorical. To limit the use of “government” as an adjective that qualifies “funds” is baseless. The word “public” precedes “funds” and distinguishes the same from private funds. To qualify further “public funds” as “government” funds, as petitioner claims is the law’s intent, is plainly superfluous. We are bound by the rule that a statute should be construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own officials.

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

An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding[27]

It is obvious to the eyes that the phrase “fraud upon government” means “any instance or act of trickery or deceit against the government.” It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase “any offense involving . . . public funds or property.” It ought to follow that “fraud upon government” was committed when the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position.

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

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

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

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

Accused’s acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office. This

actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision “x x x or for any offense involving fraud upon government x x x.”

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

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

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

There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion to Suspend AccusedPende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be accorded affirmative relief.[28] (Citations omitted) In denying petitioner’s Motion for Reconsideration, the Sandiganbayan further held:

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

Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite. The accused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2) public funds or property. This is precisely availing in the case at bar. The Information in herein case, says: “x x x accused x x x assume the duties and functions of the Office of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of.” When accused-mayor appointed persons in various positions, he indirectly dealt with the city’s funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the city’s funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.

[,]approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city.

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

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

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

This Court finds no reason to disagree with the Sandiganbayan. Its conclusions are amply

supported by the record. Additionally, the issue of whether petitioner committed fraud upon the government or public funds or property is essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion.[30]

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

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

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

9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the same date,

November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office;

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

Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This contradicts his assertion that he immediately complied with the memorandum of Undersecretary Sanchez.[35] Petitioner cannot escape from his own admission.

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

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

Wherefore Francisco Hilvano was prosecuted – and after trial – was

convicted of usurpation of public authority under Republic Act No. 10. He appealed in due time.

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

There is no excuse for defendant-appellant. In the beginning he might

have pleaded good faith, invoking the designation by the Mayor; but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the position. He was rightfully convicted.

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

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

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

Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a timely fashion by the petitioner, the dissenting opinion’s arguments still do not convince. The validity or sufficiency of allegations in an information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz:

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

The test is whether the crime is described in intelligible terms with such particularity as to

apprise the accused, with reasonable certainty, of the offense charged. The raison d’etre of the rule is to enable the accused to suitably prepare his defense. [44] A perusal of the Amended Information will bear out that it has hurdled this legal bar. We quote its contents:

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

Using this test, it cannot be said that the Amended Information failed to properly apprise the

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

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

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

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

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

petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him.

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

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to

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

The dissenting opinion also cites the case of Rios v. Sandiganbayan[48] as basis for assailing the Ombudsman’s order of preventive suspension. Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also worth noting that Rios cited Section 63 of the Local Government Code as its legal basis. This provision provides:

SECTION 63. Preventive Suspension. - (a) Preventive suspension may be imposed:

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

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

(3) By the mayor, if the respondent is an elective official of the barangay. (b) Preventive suspension may be imposed at any time after the issues are joined,

when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent

could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

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

It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution. This view was embraced by the Court in Hagad v. Gozo-Dadole[49] and Garcia v. Mojica.[50] In Hagad, we held:

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

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

Respondents may be correct in pointing out the reason for the shorter

period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the

mayor, governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. x x x

It was also argued in Hagad, that the six-month preventive suspension

under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern differently." [52] (Emphases supplied)

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that Senator Pimentel[53] explained during the Senate deliberations that the purpose of Section 63 of the Code is to prevent the abuse of the power of preventive suspension by members of the executive branch, to wit:

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

Senator Pimentel. That is true, Mr. President. The President. - - contending that under the new Constitution, even the

President does not have that right. Senator Pimentel. Now, as far as we are concerned, the Senate

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

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

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

Verily, Section 63 of the Local Government Code does not govern preventive suspensions

imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government.[56] The Ombudsman’s power of preventive suspension is governed by Republic Act No. 6770,[57] otherwise known as “The Ombudsman Act of 1989,” which provides:

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

service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

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

The six-month period of preventive suspension imposed by the Ombudsman[59] was indubitably within the limit provided by its enabling law. This enabling law has not been modified by the legislature.

The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping the limit for executive officials at sixty days violates the constitutional proscription against equal protection of the law. In essence, it avers that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy,[60] fixed term of office[61] and classification as an impeachable officer.[62] This much was recognized by this Court in the earlier cited case of Garcia v. Mojica.[63] Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.[64]

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

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

SO ORDERED.

AZUCENA B. DON, JOSEPH DETERA, NENITA B. GRESOLA, LETICIA L. ESPENILLA, EDITH G. DETOITO, JULNA D. JAYCO, ROGER ARIARTE, CALVIN DEL VALLE, and ERLYN RAMIREZ, Petitioners, versus - RAMON H. LACSA as erstwhile Punong Barangay ofBacolod, Juban, Sorsogon, Respondent.

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

D E C I S I O N

CARPIO MORALES, J.:

Petitioners-public school teachers charged before the Sangguniang Bayan of Juban, Sorsogon respondent Ramon H. Lacsa (respondent), then Punong Barangay of Bacolod, Juban, Sorsogon, with grave threats, oppression, grave misconduct, and abuse of authority.

On the directive of the then vice mayor of the Municipality of Juban in his capacity as presiding officer of the Sangguniang Bayan, respondent filed his Answer.1

A Special Investigating Committee (SIC) created by the Sangguniang Bayan to investigate the case found sufficient evidence for the preventive suspension of respondent. The Sangguniang Bayan thus passed a resolution recommending his preventive suspension.

Acting on the recommendation, the mayor slapped a two-month preventive suspension against respondent on January 7, 2005.2

The SIC later submitted its report finding respondent guilty of oppression, grave misconduct, and abuse of authority.3 On March 7, 2005, the Sangguniang Bayan issued Resolution No. 12-20054adopting the SIC Report. By the same resolution, respondent was removed from office.5

On March 8, 2005, the mayor issued Executive Order No. 8, Series of 20056 implementing Resolution No. 12-2005 of the Sangguniang Bayan and installing Florencio H. Lacsa, the highest ranking Sangguniang Barangay member, in place of Ramon H. Lacsa as Punong Barangay of Bacolod.7 On even date, respondent received a copy of the executive order, together with a copy of Sangguniang Bayan Resolution No. 12-2005.8

Twenty one days after receiving a copy of Sangguniang Bayan Resolution No. 12-2005 or on March 29, 2005, respondent filed before the Regional Trial Court (RTC) of Sorsogon a Petition for Certiorari(With Application for Temporary Restraining Order and/or Writ of Preliminary Injunction)9 against herein petitioners, along with the Sangguniang Bayan of Juban and Mayor Ma. Teresa Guab-Fragata. The case was docketed as Special Civil Action No. 2005-7513.

By Decision of October 24, 2005, Branch 53 of the RTC of Sorsogon granted respondent's petition and accordingly nullified the mayor's executive order. Thus the trial court ruled:

x x x

[Respondent] is entitled to be informed and have a copy of the decision rendered by the Sangguniang Bayan of Juban, Sorsogon pursuant to Section 66 of R.A. 7160, for him to seek the remedies afforded by law, if he so desires. x x x [He] received Executive Order No. 8 and attached thereto is Sangguniang Bayan Resolution No. 12-2005, on the same day, March 8, 2005. It appears that the . . . Sangguniang Bayan furnished [him] with a copy of the said resolution not to afford him his remedies on appeal in violation of Section 66 7160, but to execute said resolution hastily . . . in utmost disregard of [his] constitutional right to due process. Pursuant to Section 67 of R.A. 7160, [he] has thirty (30) days from receipt of the said resolution to file an appeal. [He] was not afforded the opportunity to elevate Resolution No. 12-2005 on appeal.

x x x

Considering the foregoing findings . . . the municipal mayor gravely abused her discretion, amounting to lack of jurisdiction in issuing and executing Executive Order No. 8 . . .

x x x x10 (Underscoring supplied)cralawlibrary

The trial court thus disposed:

Wherefore, premises considered, this court grants the petition for certiorari and orders the following:

1. The annulment and setting aside of Executive Order No. 8 dated March 8, 2005 issued by the Municipal Mayor;

2. The reinstatement of . . . Ramon H. Lacsa to his position as Punong Barangay of Bacolod, Juban, Sorsogon;

3. The payment to the said petitioner of the emoluments/allowances accruing to him from the time of removal from office up to the time of reinstatement thereat;

4. Directing the Sangguniang Bayan of Juban, Sorsogon to serve anew the petitioner with a copy of the Decision/Resolution No. 12-2005 and from receipt of which the petitioner shall enjoy his right to appeal such decision to the Sangguniang Panlalawigan pursuant to Section [6]7 of R.A. 7160.

With costs against the respondents Sangguniang Bayan Members and Municipal Mayor.

SO ORDERED.11

http://www.chanrobles.com/cralaw/2007augustdecisions.php?id=958#fnt11











The trial court having denied12 petitioners' Motion for Reconsideration,13 the petitioners filed the present Petition for Review on Certiorari, manifesting early on that they are raising only questions of law. They fault the trial court14

1. . . . in holding that the Sangguniang Bayan of Juban, Sorsogon, furnished respondent with a copy of its Resolution No. 12-2005, not to afford him his remedy of appeal, but to execute the said resolution hastily in violation of Section 66 of R.A. 7160.

2. . . . in holding that the respondent Municipal Mayor issued Executive Order No. 8 in "utmost" disregard of respondent's right to due process, as pursuant to Section 67 of R.A. 7160, he has thirty days from receipt of the aforesaid resolution to file an appeal.

3. . . . in holding that the municipal mayor, in promptly executing Sangguniang Bayan Resolution No. 12-2005, committed "grave abuse of discretion amounting to lack of jurisdiction."

4. The court a quo erred even more when it restored to respondent, through a writ of execution, the right of administrative appeal which he had abandoned and lost.15

The petition is impressed with merit.

The pertinent provision of R.A. 7160, otherwise known as the Local Government Code, reads:

Sec. 61(c) - A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or Sangguniang Bayan concerned whose decision shall be final and executory." (Emphasis and underscoring supplied)cralawlibrary

The "final and executory" phrase used in the immediately-quoted provision was construed in Mendoza v. Laxina, Sr.16 to be "immediately executory," albeit the respondent may appeal the adverse decision to the proper office. Thus this Court declared:

Sections 61 and 67 of the Local Government Code, provide:

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

x x x

(c) A complaint against any elective barangay official shall be filed before thesangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory, (Italics supplied)

Sec. 67. Administrative Appeals. - Decisions in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following:

x x x

(b) the Office of the President, in the case of decisions of the sangguniang panlalawiganand the sangguniang panlungsod of highly urbanized cities and independent component cities.

Decisions of the Office of the President shall be final and executory.

In interpreting the foregoing provisions, the trial court did not consider Section 68 of the same codewhich provides:

An appeal shall not prevent a decision from being final and executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event that he wins such appeal. In the event that the appeal results in exoneration, he shall be paid his salary and other such emoluments during the pendency of the appeal.

Obviously, the said Code does not preclude the taking of an appeal. On the contrary, it specifically allows a party to appeal to the Office of the President. The [phrase] "final and executory" x x x in Sections 67 and 68, respectively, of the Local Government Code, are not, as erroneously ruled by the trial court, indicative of the appropriate mode of relief from the decision of the Sanggunianconcerned. These phrases simply mean that the administrative appeals will not prevent the enforcement of the decisions. The decision is immediately executory but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be.17 (Emphasis and underscoring supplied)cralawlibrary

The conditions that would afford respondent to file a petition for certiorari under Rule 65 of the Rules of Court as he did file one before the RTC - that a tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or 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 - are not here present.chanrobles virtual law library

WHEREFORE, the petition is GRANTED. The October 24, 2005 Decision of the Regional Trial Court of Sorsogon City, Branch 53 in Special Civil Action No. 2005-7513 is REVERSED and SET ASIDE.

Resolution No. 12-2005 issued by the Juban, Sorsogon Sangguniang Bayan and Executive Order No. 8, Series of 2005 issued by Mayor Ma. Teresa Guab-Fragata are REINSTATED.

SO ORDERED.







D E C I S I O N CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Orders dated 20 October 2005[1] and 30 November 2005[2] of the Regional Trial Court (trial court), Branch 27, of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its assailed Orders, the trial court ruled that the Sangguniang Bayan ofBayombong, Neuva Vizcaya (Sangguniang Bayan), exceeded its jurisdiction when it imposed upon respondent Severino Martinez the administrative penalty of removal from office.

Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano

Marcos, Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as such under pertinent laws of the Republic of the Philippines. Respondent Martinez is the incumbent Punong Barangay of the said local government unit.[3]

On 5 November 2004, Martinez was administratively charged with Dishonesty and Graft and

Corruption by petitioner through the filing of a verified complaint before theSangguniang Bayan as the disciplining authority over elective barangay officials pursuant to Section 61[4] of Rep. Act No. 7160, otherwise known as the Local Government Code. Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against Martinez on 6 December 2004 for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act.[5] Petitioner alleged that Martinez committed the following acts:

1. Failure to submit and fully remit to the Barangay Treasurer the income of

their solid waste management project since 2001 particularly the sale of fertilizer derived from composting.

2. Failure to submit/remit to the barangay treasurer the sale of recyclable

materials taken from garbage collection.

3. Using the garbage truck for other purposes like hauling sand and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the yearend report even if payments were collected x x x.

4. Using/spending barangay funds for repair, gasoline, lubricants, wheels

and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected as income from its Sold Waste Management Project. x x x.

5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003

because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. x x x.

6. That several attempts to discuss said problem during sessions were all

in vain because respondent declined to discuss it and would adjourn the session.x x x.[6]

Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December 2004, Martinez was declared by the Sangguniang Bayan as in default. Pending the administrative proceedings, Martinez was placed under preventive suspension for 60 days or until 8 August 2005.[7]

On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed

upon Martinez the penalty of removal from office.[8]

The Decision dated 28 July 2005 was conveyed to the Municipal Mayor

of Bayombong, Nueva Ecija, Severino Bagasao, for its implementation. On 3 August 2005,Municial Mayor Bagasao issued a Memorandum, wherein he stated that the Sanggunaing Bayan is not empowered to order Martinez’s removal from service. However, the Decision remains valid until reversed and must be executed by him. For the meantime, he ordered the indefinite suspension of Martinez since the period of appeal had not yet lapsed. [9] The dispositive portion of the said Memorandum states that:[10]

The FOREGOING considered come AUGUST 8, 2005, respondent

SEVERINO D. MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the Office of thePunong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN SANTOS to CONTINUE assuming and discharging the functions of the said office in ACTING CAPACITY pursuant to the provisions of Sections 67 and 68 of Republic Act No. 7160.

On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary Injunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision dated 28 July 2005 of the Sangguniang Bayan. This case was docketed as Special Civil Action No. 6727, which was initially heard by Branch 28, but later raffled to Branch 27 of the trial court.[11]

THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS, MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA VISCAYA represented by BARANGAY KAGAWAD JOSE CENEN SANTOS, MARIO BACUD, WALTER FRANCISCO, ROSITA SEBASTIAN, LAURETA CABAUATAN, CECILIA ALINDAYU and MELY SIMANGAN, Petitioners,

- versus - PUNONG BARANGAY SEVERINO MARTINEZ, Respondent .

On 20 October 2005, the trial court issued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan removing Martinez from service is void. As a consequence, Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void order. The trial court further ruled that Martinez properly availed himself of the remedy of Special Civil Action, where the order assailed was a patent nullity.[12]

On 10 November 2005, petitioner filed a Motion for Reconsideration [13] of the trial court’s Order

dated 10 October 2005. The trial court denied the said motion in another Order dated 30 November 2005.[14]

Hence, the present petition was filed.

Although Martinez’s term as Punong Baranggay expired upon the holding of the 29 October 2007 Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, the Court will nevertheless settle a legal question that is capable of repetition yet evading review.[15]

The pivotal issue in this case is whether or not the Sangguniang Bayan may remove Martinez,

an elective local official, from office. The pertinent legal provisions and cases decided by this Court firmly establish that the Sanggunaing Bayan is not empowered to do so.

Section 60 of the Local Government Code conferred upon the courts the power to remove elective local officials from office:

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. An elective local official may be removed from office on the grounds

enumerated above by order of the proper court. (Emphasis provided.)

During the deliberations of the Senate on the Local Government Code,[16] the legislative intent to confine to the courts, i.e., regional trial courts, the Sandiganbayan and the appellate courts, jurisdiction over cases involving the removal of elective local officials was evident:

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 sabihinnila 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 we will

craft to capture the other ideas that have been elevated. (Emphasis provided.)

In Salalima v. Guingona, Jr.,[17] the Court en banc categorically ruled that the Office of the President is without any power to remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code. It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991, which provided that:

Article 125. Grounds for Disciplinary Actions. x x x. x x x x. (b) An elective local official may be removed from office on the grounds

enumerated in paragraph (a) of this Article by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.

The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and Regulations of the Local Government Code exceeded its authority when it granted to the “disciplining authority” the power to remove elective officials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, the Sangguniang Bayan is not vested with the power to remove Martinez.

Petitioner contends that administrative cases involving elective barangay officials may be filed with, heard and decided by the Sangguniang Panlungsod or SangguniangBayan concerned, which can, thereafter, impose a penalty of removal from office. It further claims that the courts are merely tasked with issuing the order of removal, after theSangguniang Panlungsod or Sangguniang Bayan finds that a penalty of removal is warranted.[18]

The aforementioned position put forward by the petitioner would run counter to the rationale for

making the removal of elective officials an exclusive judicial prerogative. InPablico v. Villapando,[19] the court declared that:

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 (sic 125)[20] (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. (Emphasis supplied.)

The rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority. Vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision, would still not free the resolution of the case from the capriciousness or partisanship of the disciplining authority. Thus, the petitioner’s interpretation would defeat the clear intent of the law. Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable breach of the doctrine on separation of powers, thus placing the courts under the orders of the legislative bodies of local governments. The courts would be stripped of their power of review, and their discretion in imposing the extreme penalty of removal from office is thus left to be exercised by political factions which stand to benefit from the removal from office of the local elective official concerned, the very evil which Congress sought to avoid when it enacted Section 60 of the Local Government Code. Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court, where court rules of procedure and evidence can ensure impartiality and fairness and protect against political maneuverings. Elevating the removal of an elective local official from office from an administrative case to a court case may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the electorate of the services of the official for whom they voted. As the law stands, Section 61 of the Local Government Code provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring electivebarangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court.

Petitioner alleged that an interpretation which gives the judiciary the power to remove local elective officials violates the doctrine of separation of powers. This allegation runs contrary to the 1987 Constitution itself, as well as jurisprudence.

The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the

authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms of duty. [21] Paragraph 2, Section 1, Article VIII of the 1987 Constitution, provides that:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis provided.) The doctrine of separation of powers is not absolute in its application; rather, it should be applied

in accordance with the principle of checks and balances. The removal from office of elective officials must not be tainted with partisan politics and used to defeat the will of the voting public. Congress itself saw it fit to vest that power in a more impartial tribunal, the court. Furthermore, the local government units are not deprived of the right to discipline local elective officials; rather, they are prevented from imposing the extreme penalty of dismissal.

Petitioner questions the Decision dated 20 October 2005 of the trial court for allowing the

petition filed before it as an exception to the doctrine of exhaustion of administrative remedies. If, indeed, the Sangguniang Bayan had no power to remove Martinez from office, then Martinez should have sought recourse from the Sangguniang Panlalawigan. This Court upholds the ruling of the trial court.

The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate

administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. Non-observance of the doctrine results in lack of a cause of action, which is one of the grounds allowed by the Rules of Court for the dismissal of the complaint.[22]

The doctrine of exhaustion of administrative remedies, which is based on sound public policy

and practical consideration, is not inflexible. There are instances when it may be dispensed with and judicial action may be validly resorted to immediately. Among these exceptions are: 1) where there is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is relatively small as to make the rule impractical and oppressive; 5) where the question raised is purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where the controverted acts violate due process; 9) when the issue of non-exhaustion of administrative remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy; 11) when strong public interest is involved; and 13) in quo warranto proceedings.[23]

As a general rule, no recourse to courts can be had until all administrative remedies have been

exhausted. However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial.

In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it

issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order to annul the said Order of the Sangguniang Bayan.[24] Thus, his direct recourse to regular courts of justice was justified.

In addition, this Court in Castro v. Gloria[25] declared that where the case involves only legal

questions, the litigant need not exhaust all administrative remedies before such judicial relief can be sought. The reason behind providing an exception to the rule on exhaustion of administrative remedies is that issues of law cannot be resolved with finality by the administrative officer. Appeal to the administrative officer would only be an exercise in futility. A legal question is properly addressed to a regular court of justice rather than to an administrative body.[26]

In the present case, Martinez raised before the trial court the sole issue of whether

the Sangguniang Bayan has jurisdiction over a case involving the removal of a local elective official from office.[27] In Martinez’s petition before the trial court, only a legal question was raised, one that will ultimately be resolved by the courts. Hence, appeal to the administrative officer concerned would only be circuitous and, therefore, should no longer be required before judicial relief can be sought.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of

the Bayombong RTC in Special Civil Action No. 6727 is AFFIRMED.

SO ORDERED.

vacancies and succession

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