Professional Documents
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Rules On Succession - Sec 13 3019
Rules On Succession - Sec 13 3019
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PHILIP M. CASTILLO, Petitioner,
vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents.
DECISION
BERSAMIN, J.:
In focus in these consolidated special civil actions are the disqualification of a substitute who was
proclaimed the winner of a mayoralty election; and the ascertainment of who should assume the
office following the substitute’s disqualification.
The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution issued
on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the dispositive
portion of which states:
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second
Division;
4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the
functions of the Office of the Mayor;
5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44 of
the Local Government Code;
6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution to
the Office of the President of the Philippines, the Department of Interior and Local
Government, the Department of Finance and the Secretary of the Sangguniang Panglunsod
of Lucena City.
Let the Department of Interior and Local Government and the Regional Election Director of Region
IV of COMELEC implement this resolution.
SO ORDERED.1
Antecedents
On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo
(Castillo) respectively filed their certificates of candidacy (CoCs) for the position of Mayor of Lucena
City to be contested in the scheduled May 10, 2010 national and local elections.2
Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was eligible for
the office he was seeking to be elected to.
Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition denominated
as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of Candidacy of Ramon
Y. Talaga, Jr. as Mayor for Having Already Served Three (3) Consecutive Terms as a City Mayor of
Lucena, which was docketed as SPA 09-029 (DC).4 He alleged
therein that Ramon, despite knowing that he had been elected and had served three consecutive
terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010
national and local elections.
1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao Crossing,
Lucena City but may be served with summons and other processes of this Commission at
the address of his counsel at 624 Aurora Blvd., Lucena City 4301;
2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of
Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the City Mayor,
City Hall, Lucena City, where he may be served with summons and other processes of this
Commission;
3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the 2007
local elections, is running for city mayor of Lucena under the Liberal party this coming 10
May 2010 local elections and has filed his certificate of candidacy for city mayor of Lucena;
4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local
elections based on the records of the Commission on Elections of Lucena City and had fully
served the aforesaid three (3) terms without any voluntary and involuntary interruption;
5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October 2005,
the public service as city mayor of the respondent is continuous and uninterrupted under the
existing laws and jurisprudence;
6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of the
respondent, hence, such act is outrightly unconstitutional, illegal, and highly immoral;
7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for City
Mayor of Lucena for this coming 10 May 2010 national and local elections;
8. Under the Constitution and existing Election Laws, New Local Government Code of the
Philippines, and jurisprudence the respondent is no longer entitled and is already disqualified
to be a city mayor for the fourth consecutive term;
9. The filing of the respondent for the position of city mayor is highly improper, unlawful and
is potentially injurious and prejudicial to taxpayers of the City of Lucena; and
10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City based
on the existing law and jurisprudence.5
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed
by the respondent be denied due course to or cancel the same and that he be declared as a
disqualified candidate under the existing Election Laws and by the provisions of the New Local
Government Code.6 (Emphasis supplied.)
Ramon countered that that the Sandiganbayan had preventively suspended him from office during
his second and third terms; and that the three-term limit rule did not then apply to him pursuant to
the prevailing jurisprudence7 to the effect that an involuntary separation from office amounted to an
interruption of continuity of service for purposes of the application of the three-term limit rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary incapacity,
was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on December 30,
2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve, taking into account the
intervening ruling in Aldovino. Relevant portions of his Manifestation with Motion to Resolve are
quoted herein, viz:
4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City, the
rule that ‘where the separation from office is caused by reasons beyond the control of the officer –
i.e. involuntary – the service of term is deemed interrupted’ has not yet been overturned by the new
ruling of the Supreme Court. As a matter of fact, the prevailing rule then of the Honorable
Commission in [sic] respect of the three (3)-term limitation was its decision in the case of Aldovino,
et al. vs. Asilo where it stated:
"Thus, even if respondent was elected during the 2004 elections, which was supposedly his third
and final term as city councilor, the same cannot be treated as a complete service or full term in
office since the same was interrupted when he was suspended by the Sandiganbayan Fourth
Division. And the respondent actually heeded the suspension order since he did not receive his
salary during the period October 16-31 and November 1-15 by reason of his actual suspension from
office. And this was further bolstered by the fact that the DILG issued a
Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)
5. Clearly, there was no misrepresentation on the part of respondent as would constitute a ground
for the denial of due course to and/or the cancellation of respondent’s certificate of candidacy at the
time he filed the same. Petitioner’s ground for the denial of due course to and/or the cancellation of
respondent’s certificate of candidacy thus has no basis, in fact and in law, as there is no ground to
warrant such relief under the Omnibus Election Code and/or its implementing laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the three
(3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for the position of
Mayor of Lucena City having served three (3) (albeit interrupted) terms as Mayor of Lucena City prior
to the filing of his certificate of candidacy for the 2010 elections.
7. In view of the foregoing premises and new jurisprudence on the matter, respondent respectfully
submits the present case for decision declaring him as DISQUALIFIED to run for the position of
Mayor of Lucena City.9
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in the
May 10, 2010 national and local elections, Ramon did not withdraw his CoC.
Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division issued a
Resolution on April 19, 2010,10 disposing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly, Ramon
Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for the 10 May
2010 National and Local Elections.
SO ORDERED.
Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010 Resolution of
the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4, 2010 an Ex-parte
Manifestation of Withdrawal of the Pending Motion for Reconsideration.12 At 4:30 p.m. on the same
date, Barbara Ruby filed her own CoC for Mayor of Lucena City in substitution of Ramon, attaching
thereto the Certificate of Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the
party that had nominated Ramon.13
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of Withdrawal,
declared the COMELEC First Division’s Resolution dated April 19, 2010 final and executory.14
On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the votes
cast in his favor were counted in favor of Barbara Ruby as his substitute candidate, resulting in
Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s 39,615 votes.15
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the suspension of
Barbara Ruby’s proclamation.16
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its Law
Department,17gave due course to Barbara Ruby’s CoC and CONA through Resolution No. 8917,
thereby including her in the certified list of candidates.18 Consequently, the CBOC proclaimed
Barbara Ruby as the newly-elected Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute Ramon
because his CoC had been cancelled and denied due course; and Barbara Ruby could not be
considered a candidate because the COMELEC En Banc had approved her substitution three days
after the elections; hence, the votes cast for Ramon should be considered stray.
In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained the
validity of her substitution. She countered that the COMELEC En Banc did not deny due course to or
cancel Ramon’s COC, despite a declaration of his disqualification, because there was no finding that
he had committed misrepresentation, the ground for the denial of due course to or cancellation of his
COC. She prayed that with her valid substitution, Section 12 of Republic Act No. 900622 applied,
based on which the votes cast for Ramon were properly counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought to
intervene,23positing that he should assume the post of Mayor because Barbara Ruby’s substitution
had been invalid and Castillo had clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and Alcala’s
petition-in-intervention,24 holding:
In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis for
the proclamation of Ruby on that date. He, however, failed to file any action within the prescribed
period either in the Commission or the Supreme Court assailing the said resolution. Thus, the said
resolution has become final and executory. It cannot anymore be altered or reversed.
xxxx
x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was actually
for the disqualification of Ramon for having served three consecutive terms, which is a ground for his
disqualification under the Constitution in relation to Section 4(b)3 of Resolution 8696. There was no
mention therein that Ramon has committed material representation that would be a ground for the
cancellation or denial of due course to the CoC of Ramon under Section 78 of the Omnibus Election
Code. The First Division, in fact, treated the petition as one for disqualification as gleaned from the
body of the resolution and its dispositive portion quoted above. This treatment of the First Division of
the petition as one for disqualification only is affirmed by the fact that its members signed Resolution
No. 8917 where it was clearly stated that the First Division only disqualified Ramon.
Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable. Ramon
was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered as stray votes
but should be counted in favor of Ruby since the substituted and the substitute carry the same
surname – Talaga, as provided in Section 12 of Republic Act No. 9006.
xxxx
Moreover, there is no provision in the Omnibus Election Code or any election laws for that matter
which requires that the substitution and the Certificate of Candidacy of the substitute should be
approved and given due course first by the Commission or the Law Department before it can be
considered as effective. All that Section 77 of the Omnibus Election Code as implemented by
Section 13 of Resolution No. 8678 requires is that it should be filed with the proper office. The
respondent is correct when she argued that in fact even the BEI can receive a CoC of a substitute
candidate in case the cause for the substitution happened between the day before the election and
mid-day of election day. Thus, even if the approval of the substitution was made after the election,
the substitution became effective on the date of the filing of the CoC with the Certificate of
Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of Lucena
City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation, thus, of Ruby
as mayor elect of Lucena City is in order. Hence, we find no cogent reason to annul the proclamation
of respondent Barbara Ruby C. Talaga as the duly elected Mayor of the City of Lucena after the
elections conducted on May 10, 2010.25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En Banc
issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second Division’s
ruling.26
Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a hearing as
a mere incident of the COMELEC’s ministerial duty to receive the COCs of substitute candidates; (b)
Resolution No. 8917 was based on the wrong facts; and (c) Ramon’s disqualification was resolved
with finality only on May 5, 2010, the COMELEC En Banc concluded that Barbara Ruby could not
have properly substituted Ramon but had simply become an additional candidate who had filed her
COC out of time; and held that Vice Mayor Alcala should succeed to the position pursuant to Section
44 of the Local Government Code (LGC).27
Issues
The core issue involves the validity of the substitution by Barbara Ruby as candidate for the position
of Mayor of Lucena City in lieu of Ramon, her husband.
Ancillary to the core issue is the determination of who among the contending parties should assume
the contested elective position.
Ruling
1.
The filing of a CoC within the period provided by law is a mandatory requirement for any person to
be considered a candidate in a national or local election. This is clear from Section 73 of the
Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:
Section 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
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for filing
them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular election, the
candidates from among whom they are to make the choice; and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. If the law does not confine to the duly-registered
candidates the choice by the voters, there may be as many persons voted for as there are voters,
and votes may be cast even for unknown or fictitious persons as a mark to identify the votes in favor
of a candidate for another office in the same election.28 Moreover, according to Sinaca v. Mula,29 the
CoC is:
x x x in the nature of a formal manifestation to the whole world of the candidate’s political creed or
lack of political creed. It is a statement of a person seeking to run for a public office certifying that he
announces his candidacy for the office mentioned and that he is eligible for the office, the name of
the political party to which he belongs, if he belongs to any, and his post-office address for all
election purposes being as well stated.
Accordingly, a person’s declaration of his intention to run for public office and his affirmation that he
possesses the eligibility for the position he seeks to assume, followed by the timely filing of such
declaration, constitute a valid CoC that render the person making the declaration a valid or official
candidate.
There are two remedies available to prevent a candidate from running in an electoral race. One is
through a petition for disqualification and the other through a petition to deny due course to or cancel
a certificate of candidacy. The Court differentiated the two remedies in Fermin v. Commission on
Elections,30 thuswise:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a petition
to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While a
person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the
person whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.31
Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code (i.e.,
prohibited acts of candidates, and the fact of a candidate’s permanent residency in another country
when that fact affects the residency requirement of a candidate) are separate and distinct from the
grounds for the cancellation of or denying due course to a COC (i.e., nuisance candidates under
Section 69 of the Omnibus Election Code; and material misrepresentation under Section 78 of the
Omnibus Election Code), the Court has recognized in Miranda v. Abaya32that the following
circumstances may result from the granting of the petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a valid CoC;
(2) A candidate may not be qualified and at the same time may not have filed a valid CoC;
and
(3) A candidate may be qualified but his CoC may be denied due course or cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his CoC
before the elections, Section 77 of the Omnibus Election Code provides the option of substitution, to
wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last day for the
filing of certificates of candidacy, an official candidate of a registered or accredited political party
dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the
same political party may file a certificate of candidacy to replace the candidate who died, withdrew or
was disqualified. The substitute candidate nominated by the political party concerned may file his
certificate of candidacy for the office affected in accordance with the preceding sections not later
than mid-day of the day of the election. If the death, withdrawal or disqualification should occur
between the day before the election and mid-day of election day, said certificate may be filed with
any board of election inspectors in the political subdivision where he is a candidate, or, in the case of
candidates to be voted for by the entire electorate of the country, with the Commission.
Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no valid
substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear, too,
that a candidate who does not file a valid CoC may not be validly substituted, because a person
without a valid CoC is not considered a candidate in much the same way as any person who has not
filed a CoC is not at all a candidate.34
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus
Election Code may not be substituted. A withdrawal of candidacy can only give effect to a
substitution if the substitute candidate submits prior to the election a sworn CoC as required by
Section 73 of the Omnibus Election Code.35
2.
In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition to
deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code.
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36
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.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely: (a)
Ramon made a false representation in his CoC; (b) the false representation referred to a material
matter that would affect the substantive right of Ramon as candidate (that is, the right to run for the
election for which he filed his certificate); and (c) Ramon made the false representation with the
intention to deceive the electorate as to his qualification for public office or deliberately attempted to
mislead, misinform, or hide a fact that would otherwise render him ineligible.37The petition expressly
challenged Ramon’s eligibility for public office based on the prohibition stated in the Constitution and
the Local Government Code against any person serving three consecutive terms, and specifically
prayed that "the Certificate of Candidacy filed by the respondent Ramon be denied due course to or
cancel the same and that he be declared as a disqualified candidate."38
The denial of due course to or the cancellation of the CoC under Section 78 involves a finding not
only that a person lacks a qualification but also that he made a material representation that is
false.39 A petition for the denial of due course to or cancellation of CoC that is short of the
requirements will not be granted. In Mitra v. Commission on Elections,40 the Court stressed that there
must also be a deliberate attempt to mislead, thus:
The false representation under Section 78 must likewise be a "deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of
the requirement, it must be made with the intention to deceive the electorate as to the would-be
candidate’s qualifications for public office. Thus, the misrepresentation that Section 78 addresses
cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to
deceive is patently absent, or where no deception on the electorate results. The deliberate character
of the misrepresentation necessarily follows from a consideration of the consequences of any
material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he
cannot serve; in both cases, he can be prosecuted for violation of the election laws.
It is underscored, however, that a Section 78 petition should not be interchanged or confused with a
Section 68 petition. The remedies under the two sections are different, for they are based on
different grounds, and can result in different eventualities.41 A person who is disqualified under
Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied
due course under Section 78 is not considered as a candidate at all because his status is that of a
person who has not filed a CoC.42 Miranda v. Abaya43 has clarified that a candidate who is
disqualified under Section 68 can be validly substituted pursuant to Section 77 because he remains
a candidate until disqualified; but a person whose CoC has been denied due course or cancelled
under Section 78 cannot be substituted because he is not considered a candidate. 1âwphi1
To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by the
Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.
Section 43 of the Local Government Code reiterates the constitutional three-term limit for all elective
local officials, to wit:
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected. (Emphasis supplied.)
The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office." The Court underscored this objective in Aldovino, Jr. v. Commission on
Elections,44 stating:
x x x The framers of the Constitution specifically included an exception to the people’s freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same
office. To allow petitioner Latasa to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive terms as mayor of the
City of Digos, petitioner would then be possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.
To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from
asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his
CoC was invalid and ineffectual ab initio for containing the incurable defect consisting in his false
declaration of his eligibility to run. The invalidity and inefficacy of his CoC made his situation even
worse than that of a nuisance candidate because the nuisance candidate may remain eligible
despite cancellation of his CoC or despite the denial of due course to the CoC pursuant to Section
69 of the Omnibus Election Code.45
Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to
Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid,
considering that for all intents and purposes the COMELEC’s declaration of his disqualification had
the effect of announcing that he was no candidate at all.
We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda v.
Abaya aptly put it:
Even on the most basic and fundamental principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be substituted, for how can a person take the
place of somebody who does not exist or who never was. The Court has no other choice but to rule
that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a
valid certificate of candidacy seasonably filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in
the first place because, if the disqualified candidate did not have a valid and seasonably filed
certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he
cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called
"substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing
thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our
Constitution.47 (Emphasis supplied)
3.
Granting without any qualification of petition in
SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC
That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether his CoC
should be deemed cancelled or not.
In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not given
due course and/or cancelled." The COMELEC categorically granted "the petition" and then
pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified." The
Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel
Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The Court explained:
The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by
the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due
course and cancelled.
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the
position of Mayor for the City of Santiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
In resolving the petition filed by private respondent specifying a very particular relief, the Comelec
ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition.
Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of
mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.
SO ORDERED.
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No.
98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was
GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply
ruled over and above the granting of the specific prayer for denial of due course and cancellation of
the certificate of candidacy. x x x.49
xxxx
x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019
is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo,
pp. 26-31). There is likewise no question that the said petition was GRANTED without any
qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any
further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition
was granted and that the certificate of candidacy of Jose "Pempe" Miranda was denied due course
and cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of
cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to
any qualification.
Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC) specifically
sought both the disqualification of Ramon and the denial of due course to or cancellation of his CoC,
the COMELEC categorically stated in the Resolution dated April 19, 2010 that it was granting the
petition. Despite the COMELEC making no finding of material misrepresentation on the part of
Ramon, its granting of Castillo’s petition without express qualifications manifested that the
COMELEC had cancelled Ramon’s CoC based on his apparent ineligibility. The Resolution dated
April 19, 2010 became final and executory because Castillo did not move for its reconsideration, and
because Ramon later withdrew his motion for reconsideration filed in relation to it.
4.
On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the
doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to the
elections.52 Instead, he cites Cayat v. Commission on Elections,53where the Court said:
x x x In Labo there was no final judgment of disqualification before the elections. The doctrine on the
rejection of the second placer was applied in Labo and a host of other cases because the judgment
declaring the candidate’s disqualification in Labo and the other cases had not become final before
the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the
second placer have one common essential condition — the disqualification of the candidate had not
become final before the elections. This essential condition does not exist in the present case.
Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the 11
May 1992 elections. On election day itself, Labo was still legally a candidate. In the present case,
Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day,
Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy for Mayor of Buguias,
Benguet was legally non-existent in the 10 May 2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an election cannot
be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension
of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis
added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the elections,
which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the
first situation is categorical: a candidate disqualified by final judgment before an election cannot be
voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became
final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in
Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng’s
proclamation is proper because he was the sole and only candidate, second to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the position
of Mayor of Lucena City for having obtained the highest number of votes among the remaining
qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon
disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s Resolution No.
8804,55 a decision or resolution of a Division becomes final and executory after the lapse of five days
following its promulgation unless a motion for reconsideration is seasonably filed. Under Section 8,
Rule 20 of Resolution No. 8804, the decision of the COMELEC En Banc becomes final and
executory five days after its promulgation and receipt of notice by the parties.
The COMELEC First Division declared Ramon disqualified through its Resolution dated April 19,
2010, the copy of which Ramon received on the same date.56 Ramon filed a motion for
reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC Resolution No.
8696,58 but withdrew the motion on May 4, 2010,59ostensibly to allow his substitution by Barbara
Ruby. On his part, Castillo did not file any motion for reconsideration. Such circumstances indicated
that there was no more pending matter that could have effectively suspended the finality of the ruling
in due course. Hence, the Resolution dated April 19, 2010 could be said to have attained finality
upon the lapse of five days from its promulgation and receipt of it by the parties. This happened
probably on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on the
withdrawal by Ramon of his motion for reconsideration through the May 5, 2010 Resolution declaring
the April 19, 2010 Resolution of the COMELEC First Division final and executory.
Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming final prior
to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor. Barbara Ruby’s filing of
her CoC in substitution of Ramon significantly differentiated this case from the factual circumstances
obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was disqualified on April 17,
2004, and his disqualification became final before the May 10, 2004 elections. Considering that no
substitution of Cayat was made, Thomas R. Palileng, Sr., his rival, remained the only candidate for
the mayoralty post in Buguias, Benguet. In contrast, after Barbara Ruby substituted Ramon, the May
10, 2010 elections proceeded with her being regarded by the electorate of Lucena City as a bona
fide candidate. To the electorate, she became a contender for the same position vied for by Castillo,
such that she stood on the same footing as Castillo. Such standing as a candidate negated Castillo’s
claim of being the candidate who obtained the highest number of votes, and of being consequently
entitled to assume the office of Mayor.
Indeed, Castillo could not assume the office for he was only a second placer. Labo, Jr. should be
1âwphi1
applied. There, the Court emphasized that the candidate obtaining the second highest number of
votes for the contested office could not assume the office despite the disqualification of the first
placer because the second placer was "not the choice of the sovereign will."60 Surely, the Court
explained, a minority or defeated candidate could not be deemed elected to the office.61 There was
to be no question that the second placer lost in the election, was repudiated by the electorate, and
could not assume the vacated position.62 No law imposed upon and compelled the people of Lucena
City to accept a loser to be their political leader or their representative.63
The only time that a second placer is allowed to take the place of a disqualified winning candidate is
when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is
disqualified; and (b) the electorate was fully aware in fact and in law of that candidate’s
disqualification as to bring such awareness within the realm of notoriety but the electorate still cast
the plurality of the votes in favor of the ineligible candidate.64 Under this sole exception, the
electorate may be said to have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case the eligible candidate with the
second highest number of votes may be deemed elected.65 But the exception did not apply in favor
of Castillo simply because the second element was absent. The electorate of Lucena City were not
the least aware of the fact of Barbara Ruby’s ineligibility as the substitute. In fact, the COMELEC En
Banc issued the Resolution finding her substitution invalid only on May 20, 2011, or a full year after
the decisions.
On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming the
position of Mayor of Lucena City. To begin with, there was no valid candidate for her to substitute
due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC before the elections in
accordance with Section 73 of the Omnibus Election Code. Lastly, she was not an additional
candidate for the position of Mayor of Lucena City because her filing of her CoC on May 4, 2010 was
beyond the period fixed by law. Indeed, she was not, in law and in fact, a candidate.66
A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should
be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:67
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-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. x x x
WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the
Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to pay
the costs of suit.
SO ORDERED.
[G.R. No. 134213. July 20, 1999]
DECISION
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 formers 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:
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 latters absence. [14] This
doctrine should equally apply to the Vice-Governor since he is similarly situated as the Vice-
Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this
term should be reasonably construed to mean effective absence, [15] that is, one that renders the
officer concerned powerless, for the time being, to discharge the powers and prerogatives of his
office.[16] There is no vacancy whenever the office is occupied by a legally qualified
incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to
assume and exercise at present the duties of the office. [17] By virtue of the foregoing definition, it
can be said that the designation, appointment or assumption of the Vice-Governor as the Acting
Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during
such contingency. Considering the silence of the law on the matter, the mode of succession
provided for permanent vacancies, under the new Code, in the office of the Vice-Governor may
likewise be observed in the event of temporary vacancy occurring in the same office.[18] This is so
because in the eyes of the law, the office to which he was elected was left barren of a legally
qualified person to exercise the duties of the office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise
the duties of the latter office, since the nature of the duties of the provincial Governor call for a
full-time occupant to discharge them.[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 Governors (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.
G.R. No. 93252 August 5, 1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents.
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.:p
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:
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:
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.
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.
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; 9and 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
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
(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:
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
"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
... 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
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, 50 Commissioner 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.
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 facie findings. 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.
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.
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;
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:
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.
The case at bar involves the validity of the suspension from office of petitioner
Eduardo Nonato Joson as Governor of the province of Nueva Ecija. Private respondent
Oscar C. Tinio is the Vice-Governor of said province while private respondents Loreto
P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and Napoleon
G. Interior are members of the Sangguniang Panlalawigan.
On September 17, 1996, private respondents filed with the Office of the President a
letter-complaint dated September 13, 1997 charging petitioner with grave misconduct
and abuse of authority. Private respondents alleged that in the morning of September
12, 1996, they were at the session hall of the provincial capitol for a scheduled session
of the Sangguniang Panlalawigan when petitioner belligerently barged into the Hall;
petitioner angrily kicked the door and chairs in the Hall and uttered threatening words at
them; close behind petitioner were several men with long and short firearms who
encircled the area. Private respondents claim that this incident was an offshoot of their
resistance to a pending legislative measure supported by petitioner that the province of
Nueva Ecija obtain a loan of P150 million from the Philippine National Bank; that
petitioner's acts were intended to harass them into approving this loan; that
fortunately, no session of the Sangguniang Panlalawigan was held that day for lack of
quorum and the proposed legislative measure was not considered; that private
respondents opposed the loan because the province of Nueva Ecija had an unliquidated
obligation of more than P70 million incurred without prior authorization from the
Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier
disclosed that the province could not afford to contract another obligation; that
petitioner's act of barging in and intimidating private respondents was a serious insult to
the integrity and independence of the Sangguniang Panlalawigan; and that the
presence of his private army posed grave danger to private respondents' lives and
safety. Private respondents prayed for the suspension or removal of petitioner; for an
emergency audit of the provincial treasury of Nueva Ecija; and for the review of the
proposed loan in light of the financial condition of the province, to wit:
"In this regard, we respectfully request for the following assistance from
your good office:
The letter-complaint was submitted with the joint affidavit of Elnora Escombien and
Jacqueline Jane Perez, two (2) employees of the Sangguniang Panlalawigan who
witnessed the incident. The letter was endorsed by Congressmen Eleuterio Violago and
Pacifico Fajardo of the Second and Third Districts of Nueva Ecija, former Congressman
Victorio Lorenzo of the Fourth District, and Mayor Placido Calma, President of the
Mayors' League of said province.[2]
The President acted on the complaint by writing on its margin the following:
"17 Sep 96
"ORDER
SO ORDERED."[14]
Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar &
Asuncion, representing petitioner, filed with the DILG an "Entry of Appearance with
Motion for Time to File Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2, 1997. Through counsel,
he moved for reconsideration. On May 19, 1997, Undersecretary Sanchez reconsidered
the order of default in the interest of justice. He noted the appearance of petitioner's
counsel and gave petitioner "for the last time" fifteen (15) days from receipt to file his
answer.[15]
On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's
counsel, whose office is in Manila, should have received a copy of the May 19, 1997
order ten days after mailing on May 27, 1997. Since petitioner still failed to file his
answer, he was deemed to have waived his right to present evidence in his
behalf.Undersecretary Sanchez reinstated the order of default and directed private
respondents to present their evidence ex-parte on July 15, 1997.[16]
The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to
Dismiss." Petitioner alleged that the letter-complaint was not verified on the day it was
filed with the Office of the President; and that the DILG had no jurisdiction over the case
and no authority to require him to answer the complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of
the order of June 23, 1997 reinstating the order of default. Petitioner also prayed that
the hearing on the merits of the case be held in abeyance until after the "Motion to
Dismiss" shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary
Ruben Torres issued an order, by authority of the President, placing petitioner under
preventive suspension for sixty (60) days pending investigation of the charges against
him.[17]
Secretary Barbers directed the Philippine National Police to assist in the
implementation of the order of preventive suspension. In petitioner's stead, Secretary
Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such time as
petitioner's temporary legal incapacity shall have ceased to exist.[18]
Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of
Appeals challenging the order of preventive suspension and the order of default.[19]
Meanwhile, the proceedings before the DILG continued. On August 20, 1997,
Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss" and
"Urgent Ex-Parte Motion for Reconsideration." In the same order, he required the
parties to submit their position papers within an inextendible period of ten days from
receipt after which the case shall be deemed submitted for resolution, to wit:
"WHEREFORE, for lack of merit, both motions are denied. However, for this
office to have a better appreciation of the issues raised in the instant case, the
parties, through their respective counsels are hereby directed to submit their
position papers within a period of ten (10) days from receipt hereof, which
period is inextendible, after which the case is deemed submitted for
resolution."[20]
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of
Preventive Suspension." On September 10, 1997, petitioner followed this with a "Motion
to Lift Default Order and Admit Answer Ad Cautelam."[21] Attached to the motion was the
"Answer Ad Cautelam"[22] and sworn statements of his witnesses. On the other hand,
complainants (private respondents herein) manifested that they were submitting the
case for decision based on the records, the complaint and affidavits of their witnesses.[23]
In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12,
1996, while he was at his district office in the town of Munoz, he received a phone call
from Sangguniang Panlalawigan member Jose del Mundo. Del Mundo, who belonged to
petitioner's political party, informed him that Vice-Governor Tinio was enraged at the
members of the Sangguniang Panlalawigan who were in petitioner's party because they
refused to place on the agenda the ratification of the proposed P150 million loan of the
province. Petitioner repaired to the provincial capitol to advise his party-mates on their
problem and at the same time attend to his official functions. Upon arrival, he went to
the Session Hall and asked the members present where Vice-Governor Tinio
was. However, without waiting for their reply, he left the Hall and proceeded to his
office.
Petitioner claimed that there was nothing in his conduct that threatened the
members of the Sangguniang Panlalawigan or caused alarm to the employees. He said
that like Vice-Governor Tinio, he was always accompanied by his official security
escorts whenever he reported for work. He also alleged that the joint affidavit of Elnora
Escombien and Jacqueline Jane Perez was false. Escombien was purportedly not
inside the session hall during the incident but was at her desk at the office and could not
in any way have seen petitioner in the hall. To attest to the truth of his allegations,
petitioner submitted three (3) joint affidavits -- two (2) affidavits executed by six (6) and
ten (10) employees, respectively, of the provincial government, and a third by four
members of the Sangguniang Panlalawigan.[24]
On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of
the order of August 20, 1997 denying his motion to dismiss. The "Urgent Motion for
Reconsideration" was rejected by Undersecretary Sanchez on October 8,
1997. Undersecretary Sanchez, however, granted the "Motion to Lift Default Order and
to Admit Answer Ad Cautelam" and admitted the "Answer Ad Cautelam" as petitioner's
position paper pursuant to the order of August 20, 1997.[25]
On October 15, 1997, petitioner filed a "Motion to Conduct Formal
Investigation." Petitioner prayed that a formal investigation of his case be conducted
pursuant to the provisions of the Local Government Code of 1991 and Rule 7 of
Administrative Order No. 23; and that this be held at the province of Nueva Ecija.[26] On
October 29, 1997, petitioner submitted a "Manifestation and Motion" before the DILG
reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's
petition.[27]
Hence this recourse.
The proceedings before the DILG continued however. In an order dated November
11, 1997, the DILG denied petitioner's "Motion to Conduct Formal Investigation"
declaring that the submission of position papers substantially complies with the
requirements of procedural due process in administrative proceedings.[28]
A few days after filing the petition before this Court, petitioner filed a "Motion for
Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary
Restraining Order and/or a Writ of Preliminary Injunction." Petitioner alleged that
subsequent to the institution of this petition, the Secretary of the Interior and Local
Governments rendered a resolution on the case finding him guilty of the offenses
charged.[29] His finding was based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the affidavits of complainants'
witnesses to be "more natural, reasonable and probable" than those of herein petitioner
Joson's.[30]
On January 8, 1998, the Executive Secretary, by authority of the President, adopted
the findings and recommendation of the DILG Secretary. He imposed on petitioner the
penalty of suspension from office for six (6) months without pay, to wit:
"WHEREFORE, as recommended by the Secretary of the Interior and Local
Government, respondent Nueva Ecija Governor Eduardo Nonato Joson is
hereby found guilty of the offenses charged and is meted the penalty of
suspension from office for a period of six (6) months without pay."[31]
On January 14, 1998, we issued a temporary restraining order enjoining the
implementation of the order of the Executive Secretary.
On January 19, 1998, private respondents submitted a Manifestation informing this
Court that the suspension of petitioner was implemented on January 9, 1998; that on
the same day, private respondent Oscar Tinio was installed as Acting Governor of the
province; and that in view of these events, the temporary restraining order had lost its
purpose and effectivity and was fait accompli.[32] We noted this Manifestation.
In his petition, petitioner alleges that:
"I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
RULES OF PROCEDURE AND EVIDENCE SHOULD NOT BE
STRICTLY APPLIED IN THE ADMINISTRATIVE DISCIPLINARY AND
CLEARLY PUNITIVE PROCEEDINGS IN THE CASE AGAINST
PETITIONER GOVERNOR EDNO JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE
ALTER-EGO PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS
THE SECRETARY OF THE DILG WHO WAS EXERCISING THE
POWERS OF THE PRESIDENT WHICH ARE CLEARLY VESTED BY
LAW ONLY UPON HIM OR THE EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE
PETITIONER WAS PROPERLY DECLARED IN DEFAULT WHEN HE
FILED A MOTION TO DISMISS INSTEAD OF AN ANSWER, AS
DIRECTED BY THE DILG, BECAUSE A MOTION TO DISMISS
BASED ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE
[sic] PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT THE
IMPOSITION OF PREVENTIVE SUSPENSION AGAINST THE
PETITIONER WAS PROPER BECAUSE THERE WAS NO JOINDER
OF ISSUES YET UPON ITS IMPOSITION AND THERE WAS NO
EVIDENCE OF GUILT AGAINST PETITIONER."[33]
In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a
Temporary Restraining Order and/or a Writ of Preliminary Injunction," petitioner also
claims that:
"I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA
ISSUED PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F,"
AND "G" HEREOF) WERE ISSUED WITH UNDUE HASTE, IN
VIOLATION OF THE PERTINENT PROVISIONS OF THE 1991
LOCAL GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO.
23, AND IN COMPLETE DISREGARD OF PETITIONER'S
CONSTITUTIONAL RIGHT TO DUE PROCESS.
II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF
JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE PUBLIC
RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE
ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF
PRELIMINARY INJUNCTION HEREIN PRAYED FOR."[34]
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials are governed
by the Local Government Code of 1991, the Rules and Regulations Implementing the
Local Government Code of 1991, and Administrative Order No. 23 entitled "Prescribing
the Rules and Procedures on the Investigation of Administrative Disciplinary Cases
Against Elective Local Officials of Provinces, Highly Urbanized Cities, Independent
Component Cities, and Cities and Municipalities in Metropolitan Manila." [35] In all matters
not provided in A.O. No. 23, the Rules of Court and the Administrative Code of 1987
apply in a suppletory character.[36]
I
Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates
the grounds for which an elective local official may be disciplined, suspended or
removed from office. Section 60 reads:
"Sec. 60. Grounds for Disciplinary Actions. -- An elective local official
may be disciplined, suspended, or removed from office on any of the
following grounds:
(e) Abuse of authority;
(h) Such other grounds as may be provided in this Code and other laws.
When an elective local official commits an act that falls under the grounds for
disciplinary action, the administrative complaint against him must be verified and filed
with any of the following:
"Sec. 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 component city shall be filed before
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."[37]
In his second assigned error, petitioner questions the jurisdiction and authority of
the DILG Secretary over the case. He contends that under the law, it is the Office of the
President that has jurisdiction over the letter-complaint and that the Court of Appeals
erred in applying the alter-ego principle because the power to discipline elective local
officials lies with the President, not with the DILG Secretary.
Jurisdiction over administrative disciplinary actions against elective local officials is
lodged in two authorities: the Disciplining Authority and the Investigating Authority. This
is explicit from A.O. No. 23, to wit:
"Sec. 2. Disciplining Authority. All administrative complaints, duly
verified, against elective local officials mentioned in the preceding
Section shall be acted upon by the President. The President, who may
act through the Executive Secretary, shall hereinafter be referred to as
the Disciplining Authority."
Sec. 3. Investigating Authority. The Secretary of the Interior and Local
Government is hereby designated as the Investigating Authority. He
may constitute an Investigating Committee in the Department of the
Interior and Local Government for the purpose.
The Disciplining Authority may, however, in the interest of the service,
constitute a Special Investigating Committee in lieu of the Secretary of
the Interior and Local Government."[46]
Pursuant to these provisions, the Disciplining Authority is the President of the
Philippines, whether acting by himself or through the Executive Secretary. The
Secretary of the Interior and Local Government is the Investigating Authority, who may
act by himself or constitute an Investigating Committee. The Secretary of the DILG,
however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the
Disciplining Authority may designate a Special Investigating Committee.
The power of the President over administrative disciplinary cases against elective
local officials is derived from his power of general supervision over local
governments.Section 4, Article X of the 1987 Constitution provides:
"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."[47]
The power of supervision means "overseeing or the authority of an officer to see that
the subordinate officers perform their duties."[48] If the subordinate officers fail or neglect
to fulfill their duties, the official may take such action or step as prescribed by law to
make them perform their duties.[49] The President's power of general supervision means
no more than the power of ensuring that laws are faithfully executed, or that subordinate
officers act within the law.[50] Supervision is not incompatible with discipline.[51] And the
power to discipline and ensure that the laws be faithfully executed must be construed to
authorize the President to order an investigation of the act or conduct of local officials
when in his opinion the good of the public service so requires.[52] Thus:
"Independently of any statutory provision authorizing the President to conduct
an investigation of the nature involved in this proceeding, and in view of the
nature and character of the executive authority with which the President of the
Philippines is invested, the constitutional grant to him of power to exercise
general supervision over all local governments and to take care that the laws be
faithfully executed must be construed to authorize him to order an investigation
of the act or conduct of the petitioner herein. Supervision is not a meaningless
thing. It is an active power. It is certainly not without limitation, but it at least
implies authority to inquire into facts and conditions in order to render the power
real and effective. If supervision is to be conscientious and rational, and not
automatic and brutal, it must be founded upon a knowledge of actual facts and
conditions disclosed after careful study and investigation."[53]
The power to discipline evidently includes the power to investigate. As the Disciplining
Authority, the President has the power derived from the Constitution itself to investigate
complaints against local government officials. A. O. No. 23, however, delegates the
power to investigate to the DILG or a Special Investigating Committee, as may be
constituted by the Disciplining Authority. This is not undue delegation, contrary to
petitioner Joson's claim. The President remains the Disciplining Authority. What is
delegated is the power to investigate, not the power to discipline.[54]
Moreover, the power of the DILG to investigate administrative complaints is based
on the alter-ego principle or the doctrine of qualified political agency. Thus:
"Under this doctrine, which recognizes the establishment of a single executive,
all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and
agents of the Chief Executive, and, except in cases where the Chief Executive
is required by the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through
the executive departments, and the acts of the Secretaries of such
departments, performed and promulgated in the regular course of business,
are, unless disapproved or reprobated by the Chief Executive presumptively the
acts of the Chief Executive."[55]
This doctrine is corollary to the control power of the President.[56] The power of
control is provided in the Constitution, thus:
"Sec. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed."[57]
Control is said to be the very heart of the power of the presidency.[58] As head of the
Executive Department, the President, however, may delegate some of his powers to the
Cabinet members except when he is required by the Constitution to act in person or the
exigencies of the situation demand that he acts personally.[59] The members of Cabinet
may act for and in behalf of the President in certain matters because the President
cannot be expected to exercise his control (and supervisory) powers personally all the
time. Each head of a department is, and must be, the President's alter ego in the
matters of that department where the President is required by law to exercise authority.
[60]
The procedure how the Disciplining and Investigating Authorities should exercise
their powers is distinctly set forth in the Local Government Code and A.O. No. 23.
Section 62 of the Code provides:
"Sec. 62. Notice of Hearing.-- (a) Within seven (7) days after the
administrative complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within fifteen (15) days from
receipt thereof, and commence investigation of the case within ten (10)
days after receipt of such answer of the respondent.
xxx."
Sections 1 and 3, Rule 5[61] of A.O. No. 23 provide:
"Sec. 1. Commencement. Within forty-eight (48) hours from receipt of
the answer, the Disciplining Authority shall refer the complaint and
answer, together with their attachments and other relevant papers, to
the Investigating Authority who shall commence the investigation of the
case within ten (10) days from receipt of the same.
"x x x
In his third assigned error, petitioner also claims that the DILG erred in declaring
him in default for filing a motion to dismiss. He alleges that a motion to dismiss is not a
pleading prohibited by the law or the rules and therefore the DILG Secretary should
have considered it and given him time to file his answer.
It is true that a motion to dismiss is not a pleading prohibited under the Local
Government Code of 1991 nor in A.O. No. 23. Petitioner, however, was instructed not to
file a motion to dismiss in the order to file answer. Thrice, he requested for extension of
time to file his answer citing as reasons the search for competent counsel and the
demands of his official duties. And thrice, his requests were granted. Even the order of
default was reconsidered and petitioner was given additional time to file answer. After
all the requests and seven months later, he filed a motion to dismiss!
Petitioner should know that the formal investigation of the case is required by law to
be finished within one hundred twenty (120) days from the time of formal notice to the
respondent. The extensions petitioner requested consumed fifty-five (55) days of this
period.[63] Petitioner, in fact, filed his answer nine (9) months after the first notice. Indeed,
this was more than sufficient time for petitioner to comply with the order to file answer.
The speedy disposition of administrative complaints is required by public
service. The efficiency of officials under investigation is impaired when a case hangs
over their heads. Officials deserve to be cleared expeditiously if they are innocent, also
expeditiously if guilty, so that the business of government will not be prejudiced.[64]
IV
In view of petitioner's inexcusable failure to file answer, the DILG did not err in
recommending to the Disciplining Authority his preventive suspension during the
investigation. Preventive suspension is authorized under Section 63 of the Local
Government Code, viz:
x x x.
x x x."
In sum, preventive suspension may be imposed by the Disciplining Authority at any time
(a) after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the
gravity of the offense, there is great probability that the respondent, who continues to
hold office, could influence the witnesses or pose a threat to the safety and integrity of
the records and other evidence.
Executive Secretary Torres, on behalf of the President, imposed preventive
suspension on petitioner Joson after finding that:
"x x x
SO ORDERED."[65]
Executive Secretary Torres found that all the requisites for the imposition of preventive
suspension had been complied with. Petitioner's failure to file his answer despite
several opportunities given him was construed as a waiver of his right to file answer and
present evidence; and as a result of this waiver, the issues were deemed to have been
joined. The Executive Secretary also found that the evidence of petitioner Joson's guilt
was strong and that his continuance in office during the pendency of the case could
influence the witnesses and pose a threat to the safety and integrity of the evidence
against him.
V
We now come to the validity of the January 8, 1998 Resolution of the Executive
Secretary finding petitioner guilty as charged and imposing on him the penalty of
suspension from office for six (6) months from office without pay.
Petitioner claims that the suspension was made without formal investigation
pursuant to the provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To
Conduct Formal Investigation" three months before the issuance of the order of
suspension and this motion was denied by the DILG for the following reasons:
"On November 19, 1997, complainants, through counsel, filed a
Manifestation calling our attention to the Decision dated October 24,
1997 of the Court of Appeals, Fifth Division in CA-G.R. SP No. 44694,
entitled "Eduardo Nonato Joson versus Executive Secretary Ruben D.
Torres, et. al." In the aforestated decision, the Court of Appeals
resolved to sustain the authority of this Department to investigate this
administrative case and has likewise validated the order of default as
well as the order of preventive suspension of the respondent.
We offer no objection and concur with the assertion of respondent that
he has the right for the conduct of formal investigation. However,
before there shall be a formal investigation, joinder of issues must
already be present or respondent's answer has already been filed. In
the case at bar, the admission of respondent's answer after having
been declared in default was conditioned on the fact of submission of
position papers by the parties, after which, the case shall be deemed
submitted for resolution. Respondent, instead of submitting his position
paper filed his subject motion while complainants manifested to forego
the submission of position paper and submit the case for resolution on
the basis of the pleadings on hand.
Settled is the rule that in administrative proceedings, technical rules of
procedure and evidence are not strictly applied (Concerned Officials of
the Metropolitan Waterworks and Sewerage System v. Vasquez, 240
SCRA 502). The essence of due process is to be found in the
reasonable opportunity to be heard and to submit evidence one may
have in support of one's defense (Tajonera v. Lamaroza, 110 SCRA
438). To be heard does not only mean verbal arguments in court; one
may be heard also through pleadings. Where opportunity to be heard,
either through oral arguments or pleadings, is accorded, there is no
denial of procedural due process (Juanita Y. Say, et. al;. vs. IAC, G.R.
No. 73451). Thus, when respondent failed to submit his position paper
as directed and insisted for the conduct of formal investigation, he was
not denied of his right of procedural process.
WHEREFORE, the Motion for the Conduct of Formal Investigation, for
lack of merit, is DENIED.
SO ORDERED."[66]
The denial of petitioner's Motion to Conduct Formal Investigation is
erroneous. Petitioner's right to a formal investigation is spelled out in the following
provisions of A.O. No. 23, viz:
"SEC. 3 Evaluation. Within twenty (20) days from receipt of the
complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of formal
administrative proceedings.
SEC. 4. Dismissal motu proprio. If the Investigating Authority
determines that there is no prima facie case to warrant the institution of
formal administrative proceedings, it shall, within the same period
prescribed under the preceding Section, submit its recommendation to
the Disciplining Authority for the motu propriodismissal of the case,
together with the recommended decision, resolution, and order.
SEC. 5. Preliminary conference. If the Investigating Authority
determines that there is prima facie case to warrant the institution of
formal administrative proceedings, it shall, within the same period
prescribed under the preceding Section, summon the parties to a
preliminary conference to consider the following:
a) whether the parties desire a formal investigation or are willing
to submit the case for resolution on the basis of the
evidence on record; and
b) If the parties desire a formal investigation, to consider the
simplification of issues, the possibility of obtaining
stipulation or admission of facts and of documents,
specifically affidavits and depositions, to avoid
unnecessary proof, the limitation of number of witnesses,
and such other matters as may be aid the prompt
disposition of the case.
The Investigating Authority shall encourage the parties and their
counsels to enter, at any stage of the proceedings, into amicable
settlement, compromise and arbitration, the terms and conditions of
which shall be subject to the approval of the Disciplining Authority.
After the preliminary conference, the Investigating Authority shall issue
an order reciting the matters taken up thereon, including the facts
stipulated and the evidences marked, if any. Such order shall limit the
issues for hearing to those not disposed of by agreement or admission
of the parties, and shall schedule the formal investigation within ten
(10) days from its issuance, unless a later date is mutually agreed in
writing by the parties concerned."[67]
The records show that on August 27, 1997, petitioner submitted his Answer Ad
Cautelam where he disputed the truth of the allegations that he barged into the session
hall of the capitol and committed physical violence to harass the private respondents
who were opposed to any move for the province to contract a P150 million loan from
PNB. In his Order of October 8, 1997, Undersecretary Sanchez admitted petitioner's
Answer Ad Cautelam but treated it as a position paper. On October 15, 1997, petitioner
filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on
October 29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary
Barbers found petitioner guilty as charged on the basis of the parties' position
papers. On January 8, 1998, Executive Secretary Torres adopted Secretary Barbers'
findings and recommendations and imposed on petitioner the penalty of six (6) months
suspension without pay.
The rejection of petitioner's right to a formal investigation denied him procedural due
process. Section 5 of A. O. No. 23 provides that at the preliminary conference,
theInvestigating Authority shall summon the parties to consider whether they desire a
formal investigation. This provision does not give the Investigating Authority the
discretion to determine whether a formal investigation would be conducted. The records
show that petitioner filed a motion for formal investigation. As respondent, he is
accorded several rights under the law, to wit:
"Sec. 65. Rights of Respondent. -- The respondent shall be accorded
full opportunity to appear and defend himself in person or by counsel,
to confront and cross-examine the witnesses against him, and to
require the attendance of witnesses and the production of documentary
evidence in his favor through compulsory process
of subpoena or subpoena duces tecum."
An erring elective local official has rights akin to the constitutional rights of an accused.
[68]
These rights are essentially part of procedural due process.[69] The local elective
official has the (1) right to appear and defend himself in person or by counsel; (2) the
right to confront and cross-examine the witnesses against him; and (3) the right to
compulsory attendance of witness and the production of documentary evidence. These
rights are reiterated in the Rules Implementing the Local Government Code[70] and in
A.O. No. 23.[71] Well to note, petitioner formally claimed his right to a formal investigation
after his Answer Ad Cautelam has been admitted by Undersecretary Sanchez.
Petitioner's right to a formal investigation was not satisfied when the complaint
against him was decided on the basis of position papers. There is nothing in the Local
Government Code and its Implementing Rules and Regulations nor in A.O. No. 23 that
provide that administrative cases against elective local officials can be decided on the
basis of position papers. A.O. No. 23 states that the Investigating Authority may require
the parties to submit their respective memoranda but this is only after formal
investigation and hearing.[72] A.O. No. 23 does not authorize the Investigating Authority
to dispense with a hearing especially in cases involving allegations of fact which are not
only in contrast but contradictory to each other. These contradictions are best settled by
allowing the examination and cross-examination of witnesses. Position papers are
often-times prepared with the assistance of lawyers and their artful preparation can
make the discovery of truth difficult. The jurisprudence cited by the DILG in its order
denying petitioner's motion for a formal investigation applies to appointive officials and
employees. Administrative disciplinary proceedings against elective government officials
are not exactly similar to those against appointive officials. In fact, the provisions that
apply to elective local officials are separate and distinct from appointive government
officers and employees. This can be gleaned from the Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the Code is devoted
to elective officials. It provides for their qualifications and election,[73] vacancies and
succession,[74] local legislation,[75] disciplinary actions,[76] and recall.[77] Appointive officers
and employees are covered in Title III of Book I of the Code entitled "Human Resources
and Development." All matters pertinent to human resources and development in local
government units are regulated by "the civil service law and such rules and regulations
and other issuances promulgated thereto, unless otherwise provided in the
Code."[78] The "investigation and adjudication of administrative complaints against
appointive local officials and employees as well as their suspension and removal" are
"in accordance with the civil service law and rules and other pertinent laws," the results
of which "shall be reported to the Civil Service Commission."[79]
It is the Administrative Code of 1987, specifically Book V on the Civil Service, that
primarily governs appointive officials and employees. Their qualifications are set forth in
the Omnibus Rules Implementing Book V of the said Code. The grounds for
administrative disciplinary action in Book V are much more in number and are specific
than those enumerated in the Local Government Code against elective local officials.
[80]
The disciplining authority in such actions is the Civil Service Commission [81] although
the Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities are also given the power to investigate and decide disciplinary actions
against officers and employees under their jurisdiction. [82] When a complaint is filed and
the respondent answers, he must "indicate whether or not he elects a formal
investigation if his answer is not considered satisfactory."[83] If the officer or employee
elects a formal investigation, the direct evidence for the complainant and the respondent
"consist[s] of the sworn statement and documents submitted in support of the complaint
and answer, as the case may be, without prejudice to the presentation of additional
evidence deemed necessary x x x, upon which the cross-examination by respondent
and the complainant, respectively, is based."[84] The investigation is conducted without
adhering to the technical rules applicable in judicial proceedings."[85] Moreover, the
appointive official or employee may be removed or dismissed summarily if (1) the
charge is serious and the evidence of guilt is strong; (2) when the respondent is a
recidivist; and (3) when the respondent is notoriously undesirable.[86]
The provisions for administrative disciplinary actions against elective local officials
are markedly different from appointive officials.[87] The rules on the removal and
suspension of elective local officials are more stringent. The procedure of requiring
position papers in lieu of a hearing in administrative cases is expressly allowed with
respect to appointive officials but not to those elected. An elective official, elected by
popular vote, is directly responsible to the community that elected him. The official has a
definite term of office fixed by law which is relatively of short duration. Suspension and
removal from office definitely affects and shortens this term of office. When an elective
official is suspended or removed, the people are deprived of the services of the man
they had elected. Implicit in the right of suffrage is that the people are entitled to the
services of the elective official of their choice.[88] Suspension and removal are thus
imposed only after the elective official is accorded his rights and the evidence against
him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent
Executive Secretary is declared null and void and is set aside. No Cost.
SO ORDERED.
DECISION
DAVIDE, JR., J.:
Petitioners seek to annul and set aside Administrative Order No. 153,
signed on 7 October 1994 by the President and by public respondent
Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact
and recommendations of the Ad Hoc Committee and holding the petitioners
administratively liable for the following acts or omissions: (a) wanton disregard
of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave
abuse of authority under Section 60(e) of the Local Government Code of 1991
(R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority
under Section 60(c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d)
abuse of authority and negligence in O.P. Case No. 5450. The said order
meted out on each of the petitioners penalties of suspension of different
durations, to be served successively but not to go beyond their respective
unexpired terms in accordance with Section 66(b) of R.A. No. 7160.
Prefacing the petition with a claim that the challenged administrative order
is an oppressive and capricious exercise of executive power, the petitioners
submit that:
I.
II.
III.
THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH
ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON
THE PROVISIONS OF THE LOCAL GOVERNMENT CODE:
The Memorandum of Agreement entered into by the Province of Albay and NPC
merely enunciates the tax liability of NPC. The Memorandum of Agreement does not
provide for the manner of payment of NPCs liability. Thus, the manner of payment as
provided for by law shall govern. In any event, the Memorandum of Agreement
cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi.
The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only
established the liability of NPC for real property taxes but does not specifically
provide that said back taxes be paid exclusively to Albay province.
Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi
the real property taxes accruing to the same.
Payment Dates Amount
Total P40,724,471.74
Realizing from the actuations of the respondents that Tiwis share in the
P40,724,47 1.74 payments already made by NPC will not be forthcoming,
Mayor Corral filed the present complaint with the Office of the President on 25
January 1993.
In determining whether the respondents are guilty of the charges against
them, the threshold issue of whether the payments to be made by NPC under
the MOA should accrue solely and exclusively in favor of the Province, must
first be resolved.
Sections 38, 39, 41, 86 and 87 of P.D. No. 464, as amended, prescribe
the authority of local government units to levy real property tax as well as the
sharing scheme among local government units including the national
government with respect thereto. Said provisions; read:
SEC. 38. Incidence of Real Property Tax. - There shall be levied, assessed, and
collected in all provinces, cities and municipalities an annual ad valorem tax or real
property, such as land, buildings, machinery and other improvements affixed or
attached to real property not hereinafter specifically exempted.
SEC. 39. Rates of Levy. - The provincial, city or municipal board or council shall fix
a uniform rate of real property tax applicable to their respective localities as follows:
(1) In the case of a province, the tax shall be fixed by ordinance of the provincial board
at the rate of not less than one-fourth of one percent but not more than one-half of
one percent of the assessed value of real property;
(2) In the case of a city, the tax shall be fixed by ordinance of the municipal board or
city council at the rate of not less than one-half of one percent but not more than two
percent of the assessed value of real property; and
(3) In the case of a municipality, the tax shall be fixed by ordinance of the municipal
council subject to the approval of the provincial board at the rate of not less than
one-fourth of one percent but not more than one-half of one percent of the assessed
value of real property.
SEC. 41. An additional one percent tax on real property for the Special Education
Fund. - There is hereby imposed an annual tax of one percent on real property to
accrue to the Special Education Fund created under Republic Act No. 5447, which
shall be in addition to the basic real property tax which local governments are
authorized to levy, assess and collect under this Code; Provided, That real property
granted exemption under Section 40 of this code shall also be exempt from the
imposition accruing to the Special Education Fund. (as amended by P.D. No. 1913)
SEC. 86. Distribution of proceeds. - (a) The proceeds of the real property tax, except
as otherwise provided in this Code, shall accrue to the province, city or municipality
where the property subject to the tax is situated and shall be applied by the respective
local government unit for its own use and benefit.
(b) Barrio shares on real property tax collections. -The annual shares of the barrios in
real property tax collections shall be as follows:
(1) Five percent of the real property tax collections of the province and another five
percent of the collections of the municipality shall accrue in the barrio where the
property subject to the tax is situated.
(2) In the case of the city, ten percent of the collections of the tax shall likewise accrue
to the barrio where the property is situated.
xxx xxx xxx
SEC. 87. Application of proceeds. - (a) The proceeds of the real property tax
pertaining to the city and to the municipality shall accrue entirely to their respective
general funds. In the case of the province, one-fourth thereof shall accrue to its road
and bridge fund and remaining three-fourths of its general fund.
(b) The entire proceeds of the additional one percent real property tax levied for the
Special Education Fund created under RA. No. 5447 collected in the province or city
on real property situated in their respective territorial jurisdictions shall be distributed
as follows:
(1) Collections in the provinces: Fifty-five percent shall accrue to the municipality where
the property subject to the tax is situated; twenty-five percent shall accrue to the
province; and twenty percent shall be remitted to the Treasurer of the
Philippines. (as amended by PD. No. 1969)
xxx xxx xxx
(c) The proceeds of all delinquent taxes and penalties, as well as the income realized
from the use, lease or other disposition of real property acquired by the province or
city at a public auction in accordance with the provisions of this Code, and the
proceeds of the sale of the delinquent real property or of the redemption thereof, shall
accrue to the province, city or municipality in the same manner and proportion as if
the tax or taxes had been paid in regular course.
By the Province
Resolution No. 30, series of 1978, of the Provincial Board of Albay, enacting
Provincial Tax Ordinance No.4 whose Section 1, provides:
There shall be levied, assessed and collected an annual ad valorem tax on real
properties including improvements thereon equivalent to one-half of one percent of
the assessed value of real property.
Ordinance No. 25. series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose
Section 2 provides:
That the tax rate of real property shall be one-half of one percent of the assessed value
of real property.
Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay,
whose Section 3 provides:
Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2
of 1%) of the assessed value of real property. (see Exhs. 50-G; Italics supplied)
Applying said rates of levy, the real property taxes collectible from the
NPC are:
1. A basic tax of 1%, levied by the Province (0. 5%) and Tiwi (0.5%) on the one hand;
and the Province (0.5%) and Daraga (0.5%) on the other; and
2. The additional 1% tax pertaining to the SEF.
Total 100.0%
Province 25.0%
Municipality 55.0%
National Government 20.0
Total 100.0%
Province Municipalities Barangay Natl. Govt.
Basic Tax
P9,672,062.04 9,672,062.04 1,018,111.79 none
SEF
4,072,447.18 10,181,117.93 none 6,108,670.76
Total
P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76
SEC. 308. Local Funds. - Every local government unit shall maintain a General Fund
which shall be used to account for such monies and resources as may be received by
and disbursed from the local treasury. The General Fund shall consist of monies and
resources of the local government which are available for the payment of
expenditures, obligations or purposes not specifically declared by law as accruing
and chargeable to, or payable from any other fund.
SEC. 309. Special Funds. - There shall be maintained in every provincial, city, or
municipal treasury the following special funds:
(a) Special Education Fund (SEF) shall consist of the respective shares of provinces,
cities, municipalities and barangays in the proceeds of the additional tax on real
property to be appropriated for purposes prescribed in Section 272 of this Code;
and
(b) Trust Funds shall consist of private and public monies which have officially come
into the possession of the local government or of a local government official as
trustee, agent or administrator, or which have been received as a guaranty for the
fulfillment of some obligation. A trust fund shall only be used for the specific
purpose for which it was created or for which it came into the possession of the
local government unit. (Italics supplied)
These provisions are restatements of Sec. 3(4) and (5) of P.D. No. 1445
and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No.
292, otherwise known as the Administrative Code of 1987.
It is unmistakable from the foregoing provisions that the shares of Tiwi,
Daraga, the concerned barangays and the national government in the
payments made by NPC under the MOA, should be, as they are in fact, trust
funds. As such, the Province should have, upon receipt of said payments,
segregated and lodged in special accounts, the respective shares of Tiwi,
Daraga, the concerned barangays and the national government for eventual
remittance to said beneficiaries. Said shares cannot be lodged in, nor remain
part of, the Provinces general fund. Moreover, the Province cannot utilize said
amounts for its own benefit or account (see also Sec. 86, PD. No. 464, as
amended).
Therefore, the balance of P26,979,962.52 representing the collective
shares of Tiwi and Daraga, the concerned barangays and the national
government, cannot be appropriated nor disbursed by the Province for the
payment of its own expenditures or contractual obligations.
However, in total disregard of the law, the Province treated the P40,724,47
1.74 NPC payments as surplus adjustment (Account 7-92-4 19) and lodged
the same in its general fund. No trust liability accounts were created in favor of
the rightful beneficiaries thereof as required by law.
Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office
(SAO) of the Commission on Audit (COA) further support our findings, thus -
xxx xxx xxx
The audit findings, which are discussed in detail in the attached report, are
summarized below:
1. The remittances of the NPC of the P40,724,471 .74 from July to December 1992
representing partial payments of real tax delinquencies from June 22, 1984 to March
10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the
concerned barangays and the National Government in violation of P.D. 464. The
Memorandum of Agreement entered into between the Province of Albay and
Napocor cannot amend the provisions of P.D. No. 464 which specifies the sharing
scheme of the real property tax among the province, city or municipality where the
property subject to tax is situated and the National Government.
xxx xxx xxx
2. The collection of P40,724,471.74 was fully treated as surplus adjustment (Account
7-92-4 19) being prior years income, without creating a trust liability for the
municipality and barangays concerned and national government, As of December
31, 1992, the balance of the account was only P25,668,653. 12 thus, stressing that
P15,255,818.62 was spent. x x x Under the General Fund, cash available was only
P4,92 1,353.44 leaving practically no cash to answer for the shares of the
Municipalities of Tiwi and Daraga and their baran gays where the properties are
located. (pp. 4 and 16; (Italics supplied)
xxx xxx xxx
As pointed out earlier, the Province was entitled only to P13,744,509.21 of
the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate
and disburse P13,744,509.21. Any disbursements exceeding this amount
would therefore be illegal.
This Committee particularly notes the factual finding of COA that as of 31
December 1992, the actual cash balance of the Provinces general fund was
only P4,92 1,353.44. This means that of the P40,724,471.74 actually paid by
the NPC and lodged in the Provinces general fund, P35,803,118.30 was
disbursed or spent by the Province.This exceeds the P13,744,509.21 share of
the Province by P22,058,609.09.
The foregoing may be illustrated as follows:
SEC. 304. Scope. - This Title shall govern the conduct and management of financial
affairs, transactions and operations of provinces, cities, municipalities, and
barangays.
SEC. 305. Fundamental Principles. - The financial affairs, transactions, and operations
of local government units shall be governed by the following fundamental principles:
xxx xxx xxx
(1) Fiscal responsibility shall be shared by all those exercising authority over the
financial affairs, transactions, and operations of local government units; and
x x x x x x x x x (Italics supplied.)
As collaborating counsels for the respondents in the aforementioned case, our law
firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of
FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending
in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to
eighteen percent (18%) of the value of the property subject matter of the case which is
P214 Million, payable to us in the event that we obtain a favorable judgment for you
from the Supreme Court in the case. Xerox expenses for copies of motions,
memorandum and other matters to be filed with the Supreme Court in the case,
together with xerox copies of documentary evidence, as well as mailing expenses, will
be for your account also.
Particulars Claimant/Payee Amount
TOTAL P7,380,410.31
The disbursement vouchers detailed hereunder represent payments for attorneys fees
of Cortes & Reyna Law Office for legal services rendered re: G.R. No. 87479
NAPOCOR, Petitioner vs.The Province of Albay, et al., Respondent, Supreme
Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the
requisite prior written conformity and acquiescence of the Solicitor General x x x as
well as the written concurrence of the commission on Audit as provided for and
required under COA Circular No. 86-255 dated April 2, 1986, re: Inhibition against
employment by government: agencies and instrumentalities x x x of private lawyers to
handle their legal cases, viz.
The complaint alleges that by entering into the retainer agreement with
private lawyers and paying P7, 380, 410.31 to the said private lawyers,
respondents violated several provisions of law which warrants the imposition
of administrative penalties against them. It is to be noted that respondents
Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the
Sangguniang Panlalawigan when Resolution No. 129 was passed. However,
the complaint alleges that these respondents were named in the complaint
because they approved the supplemental budget/appropriation ordinances
providing for the payment of the attorneys fees.
The sole issue in this case is whether or not respondents have incurred
administrative liability in entering into the retainer agreement with Atty.
Cornago and the Cortes & Reyna Law Firm and in making payments pursuant
to said agreement for purposes of the case filed by NPC with the Supreme
Court against the Province.
We find merit in the complaint and hold that under the circumstances
surrounding the transaction in question the respondents abused their
authority.
Sec. 481 of the Local Government Code (R.A. No. 7160) requires the
appointment of a legal officer for the province whose functions include the
following:
Represent the local government unit in all civil actions and special proceedings
wherein the local government unit or any official thereof, in his official capacity is a
party; Provided, That, in actions or proceeding where a component city or
municipality is a party adverse to the provincial government or to another component
city or municipality, a special legal officer may be employed to represent the adverse
party.
Under the law, the Provincial Fiscal of Bulacan, and his assistants are charged with
the duty to represent the province and any municipality thereof in all civil actions xxx
It would seem clear that the Provincial Fiscal is the only counsel who can rightfully
represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers
hired by the Province of Bulacan] have no standing in the case. The appeal herein
interposed in behalf of the plaintiffs cannot therefore be maintained.
This ruling applies squarely to the case at hand because Sec. 481 of the
Local Government Code is based on Sec. 1681 of the Revised Administrative
Code which was the subject of interpretation in the abovecited case
of Municipality of Bocaue, et al. v. Manotok.
In hiring private lawyers to represent the Province of Albay, respondents
exceeded their authority and violated the abovequoted section of the Local
Government Code and the doctrine laid down by the Supreme Court.
Moreover, the entire transaction was attended by irregularities. First, the
disbursements to the lawyers amounting to P7,380,410.31 were disallowed by
the Provincial Auditor on the ground that these were made without the prior
written conformity of the Solicitor General and the written concurrence of the
Commission on Audit (COA) as required by COA Circular No. 86-25 5 dated 2
April 1986.
The respondents attempted to dispute this finding by presenting the
Solicitor Generals conformity dated 15 July 1993. This conformity was,
however obtained after the disbursements were already made in 1990 and
1992. What is required by COA Circular No. 86-255 is a prior written
conformity and acquiescence of the Solicitor General.
Another irregularity in the transaction concerns the lawyers. Resolution
No. 0 1-90 authorized the respondent Governor to sign and confirm a retainer
contract for legal services with the Cortes & Reyna Law Firm at 202 E.
Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent
Governor was, however, not only with the Cortes & Reyna Law Firm but also
with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue,
Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm
are two separate entities is evident from the retained contract itself:
xxx xxx xxx
- and -
by:
(Sgd.) ANTONIO JOSE F. CORTES
With my conformity:
APPEARANCE
COMES NOW, the undersigned counsel, and to this Honorable Supreme Court,
respectfully enters his appearance as counsel for the respondents in the above-entitled
case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the
respondents. This appearance bears the conformity of the respondent Gov. Romeo R.
Salalima, as shown by his signature appearing at the space indicated below. In this
connection, it is respectfully requested that, henceforth, the undersigned counsel be
furnished with a copy of all notices, orders, resolutions and other matters that may be
issued in this case at its office address indicated below.
With my conformity:
Incidentally, a check with our office records of the case G.R. No. 87479 reveals that
the Province of Albay and its officials named respondents therein were represented in
the Supreme Court by Atty. Romulo Ricafort the Provinces Legal Officer II, and
Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas
Morato Avenue, Quezon City; no appearance was entered therein by the Cortes &
Reyna Law Firm. (Italics supplied)
Furthermore, the memorandum with the Supreme Court filed for the
Province was signed by Atty. Cornago and not by the Cortes & Reyna Law
Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record
of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the
Province and amounting to more than P3.6 million were issued in favor of the
Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words,
respondents disbursed money to the Cortes & Reyna Law Firm although the
latter did not appear as counsel for the Province in the Supreme Court in G.R.
No. 87479.
Finally, the attorneys fees agreed upon by respondent Salalima and
confirmed by the other respondents are not only unreasonable but also
unconscionable. The contingent fee of 18% of the P2l4 million claim of the
Province against NPC amounts to P38.5 million. The word unconscionable, as
applied to attorneys fee, means nothing more than that the fee contracted for,
standing alone and unexplained would be sufficient to show that an unfair
advantage had been taken of the client, or that a legal fraud had been taken
of the client, or that a legal fraud had been perpetrated on him.
(Moran, Comments on the Rules of Court, Vol. 6, p. 236.)
The Province has a legal officer, Atty. Ricafort, who had already filed a
comment on NPCs petition against the Province. The comment filed by Atty.
Ricafort already covers the basic issues raised in the petition. When Atty.
Cornago filed an appearance and subsequently a memorandum for the
Province, the petition was already been given due course by the Supreme
Court and the only pleading to be filed by the parties before the Court would
issue its decision was a memorandum. Surely, one memorandum could not
be worth P38.5 million.
Furthermore, the professional character and social standing of Atty.
Cornago are not such as would merit a P38.5 million fee for the legal services
rendered for the Province. During the hearing, respondent Governor admitted
that he had hired Atty. Cornago because they were schoolmates at San Beda
College, thus:
SECRETARY CORONA:
May I ask a question Governor, what was your basis for choosing this particular Law
office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this
particular Law office? Frankly, I never heard of this law office. Who recommended
it?
GOVERNOR SALALIMA:
Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda.
SECRETARY CORONA:
Were you classmates?
GOVERNOR SALALIMA:
No.
SECRETARY CORONA:
How many years apart were you?
GOVERNOR SALALIMA:
Two (2) years.
SECRETARY CORONA:
So, you knew each other from the law school?
GOVERNOR SALALIMA:
Yes.
SECRETARY CORONA:
Were you members of the same fraternity in San Beda?
GOVERNOR SALALIMA:
Yes.
(TSN, 12 July 1992, pp. 27-29.)
It is evident that respondent Governor hired Atty. Cornago not on the basis
of his competency and standing in the legal community but purely for personal
reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such
as would merit P38.5 million for one memorandum, which, in this case, it had
not even filed because it was not the counsel of record. Hence, considering
the labor and time involved, the skill and experience called for in the
performance of the services and the professional character and social
standing of the lawyers, the attorneys fee of P38.5 million is
unconscionable. By allowing such scandalously exorbitant attorneys fees
which is patently disadvantageous to the government, respondents betrayed a
personal bias to the lawyers involved and committed abuse of authority.
Parenthetically, the retainer contract containing such exorbitant attorneys
fees may also be violative of the following: (a) COA Circular No. 85-55-A (8
September 1985) prohibiting irregular, unnecessary, excessive or extravagant
expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of R.A. No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act.
Finally, the Committee again applies in this case, as was applied in OP
Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305(1)
of the Local Government Code.
In view of the foregoing, the Committee holds that respondents committed
abuse of authority under Sec. 60(e) of the Local Government Code for the
following:
1. Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to
handle the case of the Province of Albay before the Supreme Court in G.R. No.
87479;
2. Disbursing public money in violation of COA rules and regulations;
3. Paying the Cortes & Reyna Law Firm public money although it was only Atty.
Cornago who was the counsel of record of the Province of Albay in the Supreme
Court case;
4. Authorizing an unconscionable and grossly disadvantageous attorneys fees of P38.5
million; and
5. Additionally, as to respondent Governor, entering into a retainer agreement not only
with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his
authority under Resolution No. 0 1-90 passed by the Sangguniang Panlalawigan.
On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang
Bayan charged herein respondent Governor Salalima and Vice-Governor Azana for
abuse of authority, misconduct in office and oppression. This administrative
complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-8- 93),
arose from the refusal of said respondents to remit Tiwis share in the P40,724,47 1.74
tax delinquency payments made by NPC. This case was subsequently substituted by
OP Case No. 54790 filed on 25 January 1993 which now included as respondents
Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go,
Marcellana, Fernandez, Fontanilla, and Rontas.
Subsequently, Mayor Corral became the subject of several administrative and criminal
complaints filed by certain individuals with the following offices:
(13) Office of the Prosecutor, I.S. No. 93-046 (for Libel). Legaspi City
Considering that the preventive suspension imposed upon you by Governor Romeo R.
Salalima of that province, was issued after the latters refusal to accept your answer,
therefore, the issuance of subject order of preventive suspension is premature, the
issues having not been joined.
In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by
Governor Salalima, is hereby lifted.
On 26 January 1993, the Office of the President (OP), acting in OP Case
No. 4982, after finding that the evidence of guilt is strong, and given the
gravity of the offense and the great probability that the continuance in office of
respondent Governor Romeo R. Salalima could influence the witnesses or
pose a threat to the safety and integrity of the records and other
evidence, placed respondent Salalima under preventive suspension for sixty
(60) days (Exhs. D to D-2).
Respondent Salalima subsequently sought the reversal of the OP Order
dated 26 January 1993 but the same was dismissed by the Supreme Court on
26 May 1993 in the case entitled Salalima v. the Hon. Executive
Secretary, G.R. No. 108585 (Exh. E).
On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents
from hearing the six cases filed against her with the Sangguniang
Panlalawigan (Adm. Case Nos. 02-92, 05-92,06-93,07-93,09-93 and 10-93)
asserting her constitutional right to due process of law. This motion was
however denied with the respondent-members of the Sangguniang
Panlalawigan assuming jurisdiction over the cases.
After conducting marathon hearings, respondent-members of the
Sangguniang Panlalawigan rendered judgments against Mayor Corral and
imposing, among others, the following penalties of suspension:
1. In Adm. Case No. 02-92 - suspension for two (2) months (see Decision dated 1 July
1993, [Exhs. F to F-2]);
2. In Adm. Case No. 05-92 - suspension for three (3) months (see Resolution dated 5
July 1993, [Exhs. 0 to G-2]);
3. In Adm. Case No. 06-93 and 07-93 - suspension for one (1) month (see Resolution
dated 8 July 1993, (Exhs. H to H-3]); and
4. In Adm. Case No. 10-93 - suspension for the period of unexpired term (see
Resolution dated 9 July 1993, (Exhs. I to 1-2]).
Moreover, Section 63(d) of R.A. No. 7 160 expressly states that, [a]ny
abuse of the exercise of the powers of preventive suspension shall be
penalized as abuse of authority.
Now, does the above narration of facts show commission by respondents
of the administrative offenses complained of?
A review of the proceedings reveal that the same were marked by haste
and arbitrariness. This was evident from the start when Mayor Corral was
preventively suspended (in Adm. Case No. 05-92) even before she could file
her answer. In the other cases, respondent-members of Sangguniang
Panlalawigan ruled that Mayor Corral had waived her right to adduce
evidence in her defense.
Consequently, respondents did not also fully evaluate the evidences
presented to support the charges made. As such, all the decisions of
respondents suspending Mayor Corral were ordered lifted suspended by the
DILG and OP. Thus, even the cases filed with the Office of the Ombudsman,
which were based on the same incidents complained of in the said
administrative cases, were subsequently dismissed.
Respondents should have inhibited themselves from assuming jurisdiction
over said cases (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93, and 10-
93) as timely moved by Mayor Corral considering that they were the
respondents in various administrative complaints she earlier filed with the OP
and with the DILG starting with OP Case No. 4892. However, despite the
violation of due process resulting from their collective acts, respondents, in
their determination and eagerness to suspend and harass Mayor Corral,
proceeded to hear and decide said cases.
The OP has no jurisdiction over administrative complaints filed against
elective municipal officials. Under Sec. 6 1(b) of R.A. No. 7160, [a] complaint
against any elective official of a municipality shall be filed before the
Sangguniang Panlalawigan whose decision may be appealed to the Office of
the President.
WHEREFORE, thecharges against Vice Mayor Benibe are dismissed.
However, all the other respondents herein are found guilty of oppression and
abuse of authority under Section 60(c) and (e) of R.A. No. 7160. Accordingly,
it is recommended that each of them be meted the penalty of four (4) months
suspension without pay.
xxx xxx xxx
2. To be entitled to such liquidated damages, the Government does not have to prove
that it has incurred actual damages. Such amount shall be deducted from an)
money due or which may become due the contractor under the contract and/or
collect such liquidated damages from the retention money or other securities posted
by the contractor whichever is convenient to the Government.
xxx xxx xxx
IB 10.4.2 - By Negotiated Contract
1. Negotiated contract may be entered into only where any of the following conditions
exists and the implementing office/agency/corporation is not capable of undertaking
the project by administration:
xxx xxx xxx
c. Where the subject project is adjacent or contiguous to an ongoing project and it
could be economically prosecuted by the same contractor, in which case, direct
negotiation may be undertaken with the said contractor at the same unit prices
adjusted to price levels prevailing at the time of negotiation using parametric
formulae herein prescribed without the 5% deduction and contract conditions, less
mobilization cost, provided that he has no negative slippage and has demonstrated
a satisfactory performance. (Italics supplied)
xx x The project was completed only on June 2, 1992 or a delay of 132 working days,
as shown in the following tabulation
First Dec. 2, 1991 130 26.48
Second Jan. 8, 1992 187 53.19
Final June 2, 1992 202 100.00
In view of the delays in project completion the Team requested from the Provincial
Engineer any copy of the order suspending and resuming the work (suspension and
resume order) since the same was not attached to the claims of the contractor or paid
vouchers. Unfortunately, the Provincial Engineer could not provide said document as
the Engineering Office had not issued any. In effect, there was no basis for the
extension of contract time and the contractor should have been considered as behind
schedule in the performance of the contract. Despite its deficiency, no liquidated
damages was ever imposed against the contractor. (pp. 25-26) [Italics supplied]
Respondent Salalima failed to submit any evidence concerning any order issued by
the Provincial Government extending RYU Constructions contract.
The law requires that requests for contract extension as well as the orders granting the
same must be made and given prior to the expiration of the contract. The rationale for
this requirement is obviously to prevent a contractor from justifying any delay after
the contract expires.
Before signing the 6 March 1992 contract, which was entered into on a negotiated
basis and not through bidding, respondent Salalima should have inquired whether or
not RYU Construction incurred negative slippage. Had he done so, the matter of
imposing and collecting liquidated damages would have been given appropriate
attention. This is aggravated by the fact that respondent knew that RYU Construction
was the contractor for the original rehabilitation and repair work for the Tabaco Public
market being the signatory to the first contract.
Clearly, therefore, there was a failure on the part of the Province to impose and collect
liquidated damages from the erring contractor, RYU Construction.
Going to the second charge, we find that respondent Salalima unmistakably violated
the provisions of P.D. No. 1594, as amended.
This is precisely the reason why negotiated contracts can be resorted to only in a few
instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR of PD
No. 1594, supra.However, said proviso requires that the contractor had not incurred
negative slippage and has demonstrated a satisfactory performance.
And since RYU Construction incurred negative slippage with respect to the repair
works under the 29 May 1991 contract as found by COA, it was anomalous for the
Province through respondent Salalima to enter into a negotiated contract with said
contractor for additional repair and rehabilitation works for the Tabaco Public market.
Failing to comply with the requirements of law, the 6 March 1992 contract is clearly
irregular, if not illegal.
Premises considered, this Committee finds the respondent guilty of abuse of authority
and gross negligence. Accordingly, it is recommended that the penalty of suspension
without pay be meted out on respondent Salalima for five (5) months. (pp. 2-35)
After a careful review of the cases, 1 agree with and adopt the findings and
recommendations of the Ad Hoc Committee, supported as they are by the evidence on
record.
WHEREFORE, the following penalties are meted out on each of the respondents, to
wit:
a. Governor Romeo Salalima and Vice-Governor Danilo Azaa - suspension without pay
for six (6) months; and
b. Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana,
Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go,
Sr., and Nemesio Baclao - suspension without pay for four (4) months;
a. Governor Romeo Salalima and Albay Sangguniang Members Juan Victoria, Lorenzo
Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon
Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao suspension
without pay for four (4) months;
a. Governor Romeo Salalima - suspension without pay for five (5) months.
The suspension imposed on respondents shall be served successively but shall not
exceed their respective unexpired terms, in accordance with the limitation imposed
under Section 66(b) of the Local Government Code.
It must at once be pointed out that insofar as O.P. Case No. 5471 is
concerned, nothing of its substantive aspect is challenged in this petition. The
petitioners mentioned it only in their claim of prematurity of Administrative
Order No. 153 in view of their appeal from Special Audit Office (SAO) Report
No. 93-11 to the COA en banc. O.P. Case No. 5471 is the administrative
complaint filed by Tiwi Mayor Corral against the petitioners for abuse of
authority and oppression in connection with their conduct in the several
administrative cases filed by certain individuals against Mayor Corral. It has
no logical nexus to the appeal. The decision then in O.P. Case No. 5471
stands unchallenged in this petition.
As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the
petitioners may be reformulated in this wise:
I. Did the Office of the President act with grave abuse of discretion amounting to lack or
excess of jurisdiction in suspending the petitioners for periods ranging from twelve
to twenty months?
II. Did the Office of the President commit grave abuse of discretion in deciding O.P.
Cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners appeal to
the COA en bane from Special Audit Office (SAO) Report No. 93-11 and the
Certificate of Settlement and Balances (CSB)?
III. Did the Office of the President commit grave abuse of discretion in holding the
petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its
rightful share in the P40,724,471.74 which the Province of Albay had received from
the NPC under the Memorandum of Agreement?
IV. Did the Office of the President commit grave abuse of discretion in suspending in
O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May
1992, for an alleged administrative offense committed during his first term; and in
suspending in O.P. Case No. 5469 the other petitioners, some of whom were
elected and others reelected on 11 May 1992, for an alleged administrative offense
committed in 1989?
V. Did the Office of the President commit grave abuse of discretion in holding the
petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section
60(e) of the Local Government Code of 1991 although they were charged under
Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local
Government Code of 1991, thereby depriving them of due process of law?
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or
a period of six (6) months for every administrative offense, nor shall said penalty
be a bar to the candidacy of the respondent so suspended as long as he meets
the qualifications for the office.
every act or conduct or omission which amounts to, or constitutes, any of the
grounds for disciplinary action. The offenses for which suspension may be
imposed are enumerated in Section 60 of the Code, which reads:
Court is not prepared to rule that the suspension amounted to the petitioners
removal from office. [3]
II
III
As to the third issue, the petitioners aver that the P40,724,471.74 received
by the Province of Albay from the NPC represents part of the price paid for
properties owned by the province in a corporate capacity and repurchased by
the former owner. It constitutes payment of a debt and not of a tax, which debt
arose from and was a consequence of, the Memorandum of Agreement dated
July 29, 1992. They further contend that the Memorandum of Agreement
(MOA) partakes of a deed of sale. And nowhere in the Real Property Tax
Code (P.D. No. 464) is there any provision requiring provinces to share with
[5]
recomputation of the real property tax payable to the Province of Albay at the
minimum of one-fourth of one percent pursuant to Section 39(1) of the Real
Property Tax Code, the NPC came up with an adjusted figure of
P 129,609,859.20. Governor Salalima then explained that one percent was
[7]
September 9, 1992
As suggested in your letter of August 31, 1992, we are very pleased to furnish you
herewith the certified true copies of the local tax ordinances which served as our basis
in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit:
(a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting
Provincial Tax Ordinance No.4, whose Section I, provides:
There shall be levied, assessed and collected as annual ad valorem tax on real
properties including improvements thereon equivalent to one half of one percent of
the assessed value of real property.
(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay,
whose Section 2 provides:
That the tax rate of real property shall be one-half of one percent of the assessed value
of real property.
(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga. Albay,
whose Section 3 provides:
Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2 of
1%) of the assessed value of the real property.
These tax ordinances were in pursuance to Sec. 39 (1)(3) of P.D. 464, the
applicable law during the period 1984 to 1987. By adding the one half percent
imposed in the tax Ordinance of Tiwi to the one ha If percent also imposed in
the Provincial Tax Ordinance, we have a total of one percent which we used
as the rate of levy in computing the basic tax due on the real properties in
Tiwi.
On the real properties in Daraga, we also added the one half percent
imposed by the Daraga Tax Ordinance to the one-half percent of the
Provincial Tax Ordinance.
The additional tax of one percent for the Special Educational Fund (SEF)
was imposed pursuant to Section 41 of P.D. 464, which provides as follows:
There is hereby imposed annual tax of one percent on real property to accrue to the
Special Educational Fund created under Republic Act No. 5447, which shall be in
addition to the basic real property tax which local governments are authorized to levy,
assess and collect under this Code; x x x
We hope that the foregoing clarification will settle whatever doubt there is
on why we applied 1% for basic tax and another 1% for SEP in arriving at
P207,375,774.72. (Italics supplied).
[8]
Since in this case, there was no bidder, the provincial treasurer could buy,
as he did, the delinquent properties in the name of the province for the
amount of taxes, penalties due thereon, and the costs of sale, which included
the amounts of taxes due the municipalities concerned. It is therefore wrong
for the petitioners to say that the subject NPC properties are exclusively
owned by the Province. The Municipalities of Tiwi and Daraga may be
considered co-owners thereof to the extent of their respective shares in the
real property taxes and the penalties thereon.
It must further be noted that it is the provincial treasurer who has charge of
the delinquent real property acquired by the province. He is the one whom
[10]
the delinquent taxpayer or any person holding a lien or claim to the property
deal with in case the latter wishes to redeem the property. He is also the one
[11]
NOW, THEREFORE, in view of the foregoing premises and for and in consideration
of the mutual covenant and stipulations hereinafter provided, the parties hereto have
agreed as follows:
The tenor of the abovequoted agreement shows that the intention of the
parties was for the redemption of the subject properties in that the Province
would waive ownership over the properties in consideration of settlement of
Napocors tax liability.
Under Section 78 of the Real Property Tax Code, the delinquent real
property sold at public auction may be redeemed by paying the total amount
of taxes and penalties due up to the date of redemption, costs of sale, and the
interest at 20% of the purchase price.
The petitioners are estopped from claiming that the amounts received by
the Province from the NPC constitute payments of a debt under the MOA or of
contract price in a private sale. They constitute redemption price or payments
of NPCs tax liabilities. This is evident from the MOA as well as the entry in the
receipt issued by the Province, thru the Provincial Treasurer, which reads:
Date: July 29, 1992
Received from National Power Corp.
Manila
Total P17,763,000.00
WHEREAS, the sharing based on the Local Government Code of 1991, the
municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,4
16.82 respectively and the barangays Bay in Lingao (sic) to P319.00 and Tagoytoy in
Malinao to P98 1.00;
Trust funds shall consist of private and public monies which have officially come into
the possession of the local government or of a local government official as trustee,
agent or administrator ...A trust fund shall only be used for the specific purpose for
which it came into the possession of the local government unit.
As pointed out by the Ad Hoc Committee in its report, which was adopted
by the Office of the President:
It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the
concerned barangays and the national government in the payments made by NPC
under the MOA, should be, as they are in fact, trust funds. As such, the Province
should have, upon receipt of said payments, segregated and lodged in special
accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the
national government for eventual remittance to said beneficiaries. Said shares cannot
be lodged in, nor remain part of, the Provinces general fund. Moreover, the Province
cannot utilize said amounts for its own benefit or account (see also Sec. 86, P.D. No.
464, as amended).
Offenses committed, or acts done, during previous term are generally held not to
furnish cause for removal and this is especially true where the constitution provides
that the penalty in proceedings for removal shall not extend beyond the removal from
office, and disqualification from holding office for the term for which the officer was
elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401;
Montgomery vs. Nowell, 40 S.W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130
P. 2d 237; Board of Comrs. of Kingfisher County vs. Shutler, 281 P. 222;
State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d.
217).
The underlying theory is that each term is separate from other terms, and that
the reelection to office operates as a condonation of the officers previous
misconduct to the extent of cutting off the right to remove him therefor (43 Am.
Jur. P. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.
(NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17
A.I.R. 281, 63 So. 559, 50 LRA (NS) 553
The Court should never remove a public officer for acts done prior to his present term
of office. To do otherwise would be to deprive the people of their right to elect their
officers. When 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 disregard or forgave
his faults or misconduct, if he had been guilty of any. It is not for the court, by reason
of such faults or misconduct to practically overrule the will of the people.
Clearly then, the rule is that a public official can not be removed for administrative
misconduct committed during a prior term, since his re-election to office operates a
condonation of the officers 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.
QUIASON, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court with
prayer for mandatory preliminary injunction, assailing the Orders of the Office of the President as
having been issued with grave abuses of discretion. Said Orders directed the stay of execution of
the decision of the Sangguniang Panlalawigan suspending the Mayor of Tiwi, Albay from office.
Petitioner filed two administrative cases against respondent Naomi C. Corral, the incumbent Mayor
of Tiwi, Albay with the Sangguniang Panlalawigan of Albay, to wit:
(1) Administrative Case No. 02-92 for abuse of authority and/or oppression for non-
payment of accrued leave benefits due the petitioner amounting to P36,779.02.
(2) Administrative Case No. 05-92 for dishonesty and abuse of authority for installing
a water pipeline which is being operated, maintained and paid for by the municipality
to service respondent's private residence and medical clinic.
On July 1, 1993, the Sangguniang Panlalawigan disposed the two Administrative cases in the
following manner:
(1) Administrative Case No. 02-92
Consequently, respondent Mayor appealed to the Office of the President questioning the decision
and at the same time prayed for the stay of execution thereof in accordance with Section 67(b) of the
Local Government Code, which provides:
Acting on the prayer to stay execution during the pendency of the appeal, the Office of the President
issued an Order on July 28, 1993, the pertinent portions of which read as follows:
The stay of the execution is governed by Section 68 of R.A. No. 7160 and Section 6
of Administrative Order No. 18 dated 12 February 1987, quoted below:
Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from
becoming final or executory. The respondent shall be considered as having been
placed under preventive suspension during the pendency of an appeal in the events
he wins such appeal. In the event the appeal results in an exoneration, he shall be
paid his salary and such other emoluments during the pendency of the appeal (R.A.
No. 7160).
After due consideration, and in the light of the Petition for Review filed before this
Office, we find that a stay of execution pending appeal would be just and reasonable
to prevent undue prejudice to public interest.
Petitioner then filed a Motion for Reconsideration questioning the aforesaid Order of the Office of the
President.
II
Petitioner claims that the governing law in the instant case is R.A. No. 7160, which contains a
mandatory provision that an appeal "shall not prevent a decision from becoming final and
executory." He argues that administrative Order No. 18 dated February 12, 1987, (entitle
"Prescribing the Rules and Regulations Governing Appeals to Office the President") authorizing the
President to stay the execution of the appealed decision at any time during the pendency of the
appeal, was repealed by R.A. No. 7160, which took effect on January 1, 1991 (Rollo, pp. 5-6).
Petitioner invokes the repealing clause of Section 530 (f), R.A. No. 7160, which provides:
All general and special laws, acts, city charters, decrees, executive orders,
administrative regulations, part or parts thereof, which are incosistent with any of the
provisions of this Code, are hereby repealed or modified accordingly.
The aforementioned clause is not an express repeal of Section 6 of Administrative Order No. 18
because it failed to identify or designate the laws or executive orders that are intended to be
repealed (cf. I Sutherland, Statutory Construction 467 [1943]).
If there is any repeal of Administrative Order No. 18 by R.A. No. 7160, it is through implication
though such kind of repeal is not favored (The Philippine American Management Co., Inc. v. The
Philippine American Management Employees Association, 49 SCRA 194 [1973]). There is even a
presumption against implied repeal.
An implied repeal predicates the intended repeal upon the condition that a substantial conflict must
be found between the new and prior laws. In the absence of an express repeal, a subsequent law
cannot be construed as repealing a prior law unless an irreconcible inconsistency and repugnancy
exists in the terms of the new and old laws (Iloilo Palay and Corn Planters Association, Inc. v.
Feliciano, 13 SCRA 377 [1965]). The two laws must be absolutely incompatible (Compania General
de Tabacos v. Collector of Customs, 46 Phil. 8 [1924]). There must be such a repugnancy between
the laws that they cannot be made to stand together (Crawford, Construction of Statutes 631 [1940]).
We find that the provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No.
18 are not irreconcillably inconsistent and repugnant and the two laws must in fact be read together.
The first sentence of Section 68 merely provides that an "appeal shall not prevent a decision from
becoming final or executory." As worded, there is room to construe said provision as giving
discretion to the reviewing officials to stay the execution of the appealed decision. There is nothing
to infer therefrom that the reviewing officials are deprived of the authority to order a stay of the
appealed order. If the intention of Congress was to repeal Section 6 of Administrative Order No. 18,
it could have used more direct language expressive of such intention.
The execution of decisions pending appeal is procedural and in the absence of a clear legislative
intent to remove from the reviewing officials the authority to order a stay of execution, such authority
can provided in the rules and regulations governing the appeals of elective officials in administrative
cases.
The term "shall" may be read either as mandatory or directory depending upon a consideration of
the entire provisions in which it is found, its object and the consequences that would follow from
construing it one way or the other (cf. De Mesa v. Mencias, 18 SCRA 533 [1966]). In the case at
bench, there is no basis to justify the construction of the word as mandatory.
The Office of the President made a finding that the execution of the decision of the Sagguniang
Panlalawigan suspending respondent Mayor from office might be prejudicial to the public interest.
Thus, in order not to disrupt the rendition of service by the mayor to the public, a stay of the
execution of the decision is in order.
SO ORDERED.
[G.R. No. 117618. March 29, 1996]
DECISION
MENDOZA, J.:
the Sanggunian, questioning the Decision on the ground that it was signed by
Sotto alone, apparently acting in his capacity and designated as Presiding
Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. He
contended that because of this the decision could only be considered as a
recommendation of the Blue Ribbon Committee and he was not bound
thereby.
On September 13, 1994, respondent Mayor sought the opinion of the
Secretary of the Department of the Interior and Local Government regarding
the validity of the Decision.
In his letter dated September 14, 1994, DILG Secretary Rafael M. Alunan
[4]
III opined that the decision alluded to does not appear to be in accordance
with Section 66 of the Local Government Code of 1991 and settled
jurisprudence since
in the instant case, the purported decision of the Blue Ribbon Committee should have
been submitted to, approved and/or adopted by the Sangguniang Panlalawigan as a
collegial body inasmuch as the Sangguniang Panlalawigan has the administrative
jurisdiction to take cognizance thereof in conformity with Section 61 and Section 66
of the Code. It is not for the said committee to decide on the merits thereof, more so to
impose the suspension, as its duty and function is purely recommendatory. If it were
at all the intention of the Sangguniang Panlalawigan to adopt entirely the
recommendation of the Blue Ribbon Committee, it should have so stated and the
members of the Sangguniang Panlalawigan, who may have affirmatively voted
thereon or participated in its deliberations, should have affixed their respective
signatures on whatever decision that could have been arrived at. . . .
Sanggunian that he agreed with the opinion of the DILG for which reason he
could not implement the Decision in question.
On October 21, 1994, the Sanggunian, voting 7 to 2, acquitted
[7]
Kgd. Muhi
Kgd. Raza
Kgd. Pinaroc
Kgd. Lagran
Kgd. De Luna
Kgd. Rejano
Kgd. Zoleta
Kgd. Lim
Effective upon receipt of the Decision, copy furnished: the counsel for Respondent,
the Counsel for Complainant, the Municipal Treasurer, Sta. Cruz, Marinduque, the
Provincial Auditor, the Civil Service Commission, Boac, Marinduque, the DILG,
Boac, Marinduque, the Provincial Governor.
Contrary to petitioners claim, what the minutes only show is that on August
12, 1994 the Sanggunian took a vote on the administrative case of
respondent Mayor and not that it then rendered a decision as required
by 66(a) of the Local Government Code (R.A. No. 7160) which provides as
follows:
66. Form and Notice of Decision. - (a) The investigation of the case shall be
terminated within ninety (90) days from the start thereof. Within thirty (30) days after
the end of the investigation, the Office of the President or the sanggunian concerned
shall render a decision in writing stating clearly and distinctly the facts and the
reasons for such decision. Copies of said decision shall immediately be furnished the
respondent and all interested parties.
Indeed, in his comment in this case, Member Sotto admits that the draft
[10]
decision he prepared had only his signature due to the reluctance of some
Kagawads to affix their signatures. Consequently the draft never became a
decision. It is noteworthy that the draft was signed by Member Sotto in his
capacity as Presiding Chairman of the Blue Ribbon Committee of the
Sangguniang Panlalawigan and that it did not provide spaces for the
signatures of other members of the Sanggunian had it been intended that it be
signed by them. This fact led the DILG to conclude that the draft was simply
the report and recommendation of the Blue Ribbon Committee to the
Sanggunian.
Now, as already stated, the Sanggunian, at its session on October 21,
1994, took another vote and, 7 to 2, decided to dismiss the case against
respondent Mayor. This time its decision was made in writing, stating the facts
and the law on which it was based, and it was signed by the members taking
part in the decision. This, and not the so-called decision
of September 5, 1994, is the decision of the Sanggunian.
Petitioner complains that no notice of the session by the Sanggunian
on October 21, 1994 was given to her. None was really required to be given to
her. The deliberation of the Sanggunian was an internal matter.
II. Petitioner brought this case by way of Petition for certiorari and
mandamus. A prime specification of the writ of certiorari, however, is that
there is no appeal nor any plain, speedy and adequate remedy in the ordinary
course of law available to petitioner. But, in the case at bar, petitioner could
have appealed the decision of the Sanggunian to the Office of the President
as provided in 67(b) of the Local Government Code.
III. At all events, this case is now moot and academic as a result of the
expiration of respondents term during which the act complained of was
allegedly committed, and further proceedings against respondent Mayor are
barred by his reelection on May 8, 1995.
Pursuant to 66(b) of the Code, the penalty of suspension cannot exceed
the unexpired term of the respondent or a period of six (6) months for every
administrative offense. On the other hand, any administrative disciplinary
proceeding against respondent is abated if in the meantime he is reelected,
because his reelection results in a condonation of whatever misconduct he
might have committed during his previous term. [11]
DECISION
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution, dated April 4,
[1]
had previously won as mayor of Lapuyan on January 18, 1988. In the May 11,
1992, and again in the May 8, 1995 elections, he was reelected. In a petition
for disqualification, petitioner alleged that in 1991, during his first term as
mayor of Lapuyan, respondent Sulong, along with a municipal councilor of
Lapuyan and several other individuals, was administratively charged (AC No.
[4]
Respondent Sulong denied that the decision in AC No. 12-91 had become
final and executory. He averred that after receiving a copy of the decision on
February 17, 1992, he filed a motion for reconsideration and/or notice of
appeal thereof on February 18, 1992; that on February 27, 1992, the
Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No.
12-91, to comment on respondent Sulongs motion for reconsideration and/or
notice of appeal; that the said complainant had not yet complied therewith and
his (respondent Sulongs) motion had consequently remained
pending. Respondent Sulong denied he had been removed from office by
virtue of the decision in AC No. 12-91.
After the parties had filed their memoranda, the case was submitted for
resolution. Because the COMELEC was unable to render judgment before the
elections of May 14, 2001, respondent Sulong was voted for in the elections,
receiving 4,882 votes as against the 3,611 votes for petitioner. On May 16,
2001, respondent Sulong was proclaimed by the Municipal Board of
Canvassers of Lapuyan as the duly elected mayor of that municipality.
In a resolution dated August 1, 2001, the COMELECs First Division
declared respondent Cesar B. Sulong disqualified. It held:
Section 40(b) of the Local Government Code is clear that any person removed from
office by reason of an administrative case is disqualified from running for any elective
local office.
From such point, it is clear that Respondent Sulong was declared guilty of having
violated the Anti-Graft and Corrupt Practices Act by the Sangguniang Panlalawigan
of Zamboanga del Sur. . .which. . .has become final and executory, thereby depriving
him of his right to run for public office.
. . . .
Petitioner filed an opposition contending, among other things, that the fact
that Zamboanga del Sur Governor Ariosa had ordered the enforcement of the
decision signified that respondent Sulongs motion for reconsideration and/or
notice of appeal had not been given due course by the Sangguniang
Panlalawigan; and that respondent Sulongs claim that he had not been
removed from office was belied by the fact that he (respondent Sulong)
brought charges against Vicente Imbing for Usurpation of Official Functions
(I.S. No. 92-35), in support of which respondent Sulong attested under oath
that Imbing had succeeded him as mayor of Lapuyan. [9]
The only issue in this case is whether or not the foregoing decision [in AC No. 12-91],
assuming it has become final and executory, constitutes a ground for the
disqualification of herein respondent-movant as a candidate in the elections [of May
14, 2001].
The records of the case reveal that the decision of the Sangguniang Panlalawigan was
promulgated on February [4], 1992 finding respondent Sulong guilty of dishonesty,
falsification of public documents, malversation. . .
In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan,
Zamboanga del Sur despite the decision of the Sangguniang dismissing him from
office. In the 1995 May elections, respondent Sulong ran and won the mayoralty
elections of Lapuyan, Zamboanga del Sur.
While it is true that one of the disqualifications from running in an elective position is
removal from office as a result of an administrative case, said provision no longer
applies if the candidate whose qualification is questioned got re-elected to another
term. In Aguinaldo vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-
election renders an administrative case moot and academic.
. . . .
Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections
would be tantamount to a condonation of the Sangguniang Panlalawigan decision
promulgated 04 February 1992 which found him guilty of dishonesty, malversation of
public funds etc[.], granting said decision has become final and executory.
Moreover, the people of LAPUYAN have already expressed their will when they cast
their votes in the recent elections as evidenced by the results which found respondent
Sulong to have won convincingly.
. . . .
of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of
condoning the misconduct for which he was ordered dismissed by the
Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v.
Commission on Elections in which we held that an elective local executive
[14]
officer, who is removed before the expiration of the term for which he was
elected, is disqualified from being a candidate for a local elective position
under 40(b) of the Local Government Code.
We stated in Reyes:
Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a
public official could not be removed for misconduct committed during a prior term
and that his reelection operated as a condonation of the officers previous misconduct
to the extent of cutting off the right to remove him therefor. But that was because in
that case, before the petition questioning the validity of the administrative decision
removing petitioner could be decided, the term of office during which the alleged
misconduct was committed expired. Removal cannot extend beyond the term during
which the alleged misconduct was committed. If a public official is not removed
before his term of office expires, he can no longer be removed if he is thereafter
reelected [for] another term. This is the rationale for the ruling in the
two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, . . . the decision in the
administrative case, . . . was served on petitioner and it thereafter became final on
April 3, 1995, because petitioner failed to appeal to the Office of the President. He
was thus validly removed from office and, pursuant to 40(b) of the Local Government
Code, he was disqualified from running for reelection.
party in a disbarment proceeding under Rule 139-B, 12(c) can move for a
reconsideration of a resolution of the Integrated Bar of the Philippines
although Rule 139-B does not so provide:
HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the Visayas, petitioner,
vs.
HON. MERCEDES GOZO-DADOLE, Presiding Judge, Branch XXVIII, Regional Trial Court,
Mandaue City, Mandaue City Mayor ALFREDO M. OUANO, Mandaue City Vice-Mayor
PATERNO CAÑETE and Mandaue City Sangguniang Panlungsod Member RAFAEL
MAYOL, respondents.
VITUG, J.:
The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770, 1 otherwise
known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative
investigations over local elective officials by virtue of the subsequent enactment of R.A. No.
7160, 2 otherwise known as the Local Government Code of 1991, is the pivotal issue before the Court in
this petition.
The petition seeks (a) to annul the writ of preliminary injunction, dated 21 October 1992, issued
against petitioner by respondent trial court and (b) to prohibit said court from further proceeding with
RTC Case No. MDE-14. 3
Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed the office of Juan
Hagad, now resigned, 4 who took the initiative in instituting this special civil action for certiorari and
prohibition.
The controversy stemmed from the filing of criminal and administrative complaints, on 22 July 1992,
against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang
Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors
Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the
Visayas. The respondents were charged with having violated R.A. No. 3019, as amended, 5 Articles
170 6 and 171 7 of the Revised Penal Code; and R.A. No. 6713. 8Councilors Dionson and Bercede averred
that respondent officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance
No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00
without authority from the Sangguniang Panlungsod of Mandaue City. The complaints were separately
docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative Case No. OMB-VIS-ADM-92-015.
A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by
Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against
respondent officials. The next day, petitioner ordered respondents, including Acting Mandaue City
Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-
affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede
moved for the preventive suspension of respondent officials in the separately docketed
administrative case.
Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992,
prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft
of jurisdiction to try, hear and decide the administrative case filed against them since, under Section
63 of the Local Government Code of 1991, the power to investigate and impose administrative
sanctions against said local officials, as well as to effect their preventive suspension, had now been
vested with the Office of the President.
In their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local
Government Code of 1991 could not have repealed, abrogated or otherwise modified the pertinent
provisions of the Constitution granting to the Ombudsman the power to investigate cases against all
public officials and that, in any case, the power of the Ombudsman to investigate local officials under
the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of
1991.
During the hearing on the motion for preventive suspension, the parties were directed by the Deputy
Ombudsman to file their respective memoranda.
In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local
Government Code of 1991, the Office of the President, not the Office of the Ombudsman, could
lawfully take cognizance of administrative complaints against any elective official of a province, a
highly urbanized city or an independent component city and to impose disciplinary sanctions,
including preventive suspensions, and that there was nothing in the provision of the Constitution
giving to the Office of the Ombudsman superior powers than those of the President over elective
officials of local governments.
In an Order, 9 dated 10 September 1992, the Office of the Deputy Ombudsman denied the motion to
dismiss and recommended the preventive suspension of respondent officials, except City Budget Officer
Pedro M. Guido, until the administrative case would have been finally resolved by the
Ombudsman. 10 Respondent officials were formally placed under preventive suspension by the Deputy
Ombudsman pursuant to an Order 11 of 21 September 1992.
On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary injunction and
temporary restraining order, was filed by respondent officials with the Regional Trial Court of
Mandaue City. Acting favorably on the pleas of petitioning officials, respondent Judge issued, on
even date, a restraining order directed at petitioner, enjoining him ". . . from enforcing and/or
implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015."
Petitioner moved to dismiss the petition but it was to no avail. The court a quo, on 15 October 1992,
denied the motion to dismiss and issued an Order for the issuance of a writ of preliminary injunction,
holding thusly:
1) Expanding the restraining order dated September 25, 1992 issued by the Court
into an Order for the issuance of a writ of preliminary injunction upon the posting of
the petitioners of the bond in the amount of Fifty thousand pesos (P50,000.00)
conditioned that the latter will pay all the costs that may be adjudged to the adverse
party and/or damages which he may sustain by reason of the injunction, if the Court
will finally adjudge that the petitioners are not entitled thereto, and
2) Denying the respondent's Motion to Dismiss dated September 28, 1992 for lack of
merit.
SO ORDERED. 12
A writ of preliminary injunction was issued on 21 October 1992. 13 A motion for reconsideration made
by petitioner was denied by the trial court.
The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of
preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent
judge be directed to desist from further proceeding with RTC Case No. MDE-14.
The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the
1987 Constitution, 14 thus:
Sec. 13. The Office of the Ombudsman shall have the following powers, functions,
and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient;
Sec. 19. Administrative complaints. — The Ombudsman shall act on all complaints
relating, but not limited, to acts or omissions which:
Section 21 of the same statute names the officials who could be subject to the disciplinary
authority of the Ombudsman, viz.:
Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials
of the Government and its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned or controlled
corporations and their subsidiaries except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied)
Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the
Office of the Ombudsman correspondingly has the authority to decree preventive suspension
on any public officer or employee under investigation by it. Said section of the law provides:
Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment, the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of
the Ombudsman but not more than six months, without pay, except when the delay
in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.
Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman
over local officials must be deemed to have been removed by the subsequent enactment of the
Local Government Code of 1991 which vests the authority to investigate administrative charges,
listed under Section 60 15 thereof, on various offices. In the case specifically of complaints against
elective officials of provinces and highly urbanized cities, the Code states:
(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the
President.
Thus respondents insist, conformably with Section 63 of the Local Government Code,
preventive suspension can only be imposed by: ". . . the President if the respondent is an
elective official of a province, a highly urbanized or an independent component city; . . . "
under sub-paragraph (b) thereof:
(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.
In his comment, which the Court required considering that any final resolution of the case would be a
matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as
having conferred, but not on an exclusive basis, on the Office of the President (and the various
Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did
not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a
constitutional mandate. In passing, the Solicitor General has also opined that the appropriate
remedy that should have been pursued by respondent officials is a petition for certiorari before this
Court rather than their petition for prohibition filed with the Regional Trial Court.
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are
not favored, 16 and that courts must generally assume their congruent application. 17 The two laws must be
absolutely incompatible, 18 and a clear finding thereof must surface, before the inference of implied repeal
may be drawn. 19 The rule is expressed in the maxim, interpretare et concordare legibus est optimus
interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form
a uniform system of jurisprudence. 20 The fundament is that the legislature should be presumed to have
known the existing laws on the subject and not to have enacted conflicting statutes. 21 Hence, all doubts
must be resolved against any implied repeal, 22and all efforts should be exerted in order to harmonize and
give effect to all laws on the subject. 23
Certainly, Congress would not have intended to do injustice to the very reason that underlies the
creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long
tentacles of officialdom." 24
Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost parallel
with the provisions then existing under the old code. Section 61 and Section 63 of the precursor local
Government Code of 1983, 25 under the heading of "Suspension and Removal," read:
Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective
officials shall be prepared as follows:
(a) Against any elective provincial or city official, before the Minister of Local
Government.
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.
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 dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) 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.
Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when
he caused the issuance of the preventive suspension order without any hearing.
The contention is without merit. The records reveal that petitioner issued the order of preventive
suspension after the filing (a) by respondent officials of their opposition on the motion for preventive
suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of
petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a
preventive suspension can be decreed on an official under investigation after charges are brought
and even before the charges are heard. Naturally, such a preventive suspension would occur prior
to any finding of guilt or innocence. In the early case of Nera vs. Garcia, 26 reiterated in subsequent
cases,27 we have said:
In connection with the suspension of petitioner before he could file his answer to the
administrative complaint, suffice it to say that the suspension was not a punishment
or penalty for the acts of dishonesty and misconduct in office, but only as a
preventive measure. Suspension is a preliminary step in an administrative
investigation. If after such investigation, the charges are established and the person
investigated is found guilty of acts warranting his removal, then he is removed or
dismissed. This is the penalty. There is, therefore, nothing improper in suspending an
officer pending his investigation and before the charges against him are heard and
be given an opportunity to prove his innocence.
Moreover, respondent officials were, in point of fact, put on preventive suspension only after
petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier, 28 that the evidence of
guilt was strong. Petitioner gave his justification for the preventive suspension in this wise:
After a careful and honest scrutiny of the evidence submitted on record, at this stage,
it is the holding of this office that the evidence of guilt against the respondents in the
instant case is strong. There is no question that the charge against the respondents
involves dishonesty or gross misconduct which would warrant their removal from the
service and there is no gainsaying the fact that the charge for falsification of veritable
documents like city ordinances are very serious charges that affect the very
foundations of duly established representative governments. Finally, it is likewise the
holding of this office at this stage that the continued stay in office of respondents may
prejudice the judicious investigation and resolution of the instant case. 29
Finally, it does appear, as so pointed out by the Solicitor General, that respondent official's petition
for prohibition, being an application for remedy against the findings of petitioner contained in his 21
September 1992 order, should not have been entertained by the trial court. The proscription in
Section 14 of R.A. No. 6770 reads:
Sec. 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.
Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court
on matters involving orders arising from administrative disciplinary cases originating from the
Office of the Ombudsman; thus:
WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is ANNULLED and
SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED. No costs.
SO ORDERED.