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G.R. No. 87743 August 21, 1990 ROBERT F. ONG, petitioner vs. MARIA TERESITA HERRERA-MARTINEZ, THE IT!

Claro Jordan M. Santamaria for petitioner. F.B. Santiago, Nalus, Magtalas, Catalan & Associates for respondents. Nemesio C. Garcia, Jr. for City Council.

O"N I# OF MANI#A $%& THE IT! TREAS"RER OF MANI#A, respondents.

'ARAS, J.: Petitioner Robert F. Ong assails the appointment and assumption of duties as Councilor in the City Council of Manila of respondent Ma. Teresita HerreraMartine ! in place of deceased Councilor "aturnino Herrera #ho represented the Third $istrict of Manila. %t appears that "aturnino Herrera! #ho #as the father of respondent Martine ! #as one of the &iberal Party candidates duly elected as Councilor for Manila's Third $istrict in the local elections of (anuary )*! )+**. He performed his duties as such councilor until his death on October ),! )+**! thus leaving the position open for the appointment of a -ualified replacement from the same political party #here the deceased councilor belonged. Petitioner! #ho #as a defeated candidate of the &iberal Party in the Third $istrict of Manila! on the strength of an indorsement by the Treasurer of the said party in the district #hich #as allegedly supported by *./ of the #ard leaders of the party of the same district as embodied in their resolution! #as appointed on February +! )+*+ as member of the "angguniang Panglunsod 0City Council1 by the "ecretary of &ocal 2overnment to fill the vacancy created by the late Councilor "aturnino Herrera. On the same date! petitioner too3 his oath of office as such councilor after #hich the "ecretary of &ocal 2overnment informed Mayor 2emiliano &ope ! (r. and 4ice-Mayor and Presiding Officer $anilo &acuna of the appointment of petitioner. &i3e#ise! in his lst %ndorsement of March )5! )+*+! the 6ndersecretary of &ocal 2overnment for#arded petitioner's appointment to Presiding Officer of the City Council $anilo &acuna. %n the regular session of the City Council held on March +! )+*+! said Council! acting on the letter of the "ecretary of &ocal 2overnment dated February +! )+*+ informing them of the four appointments including that of petitioner! moved to e7clude petitioner and the other appointees from the session hall. %n the subse-uent session of the Council on March ),! )+*+! petitioner and his co-appointees #ere formally e7cluded from the session hall #ith si7teen 0)81 councilors voting for such e7clusion and none against it! #ith the rest of the Council members abstaining. The records sho# that respondent Martine #ent through the legal formalities or standard procedure prior to her appointment to the vacated position sub9ect of this. controversy. Thus! on :ovember ,! )+**! nine out of the eleven incumbent &P Councilors in the City Council endorsed the appointment of respondent per their resolution. This resolution #as for#arded to the Office of the Chairman of the &iberal Party! Manila Chapter. On March )! )+*+! aforesaid Chairman! in turn! nominated respondent for appointment per his letter-nomination to President Cora on ;-uino thru the "ecretary of &ocal 2overnment. On March *! )+*+! "enate President (ovito "alonga as :ational Head of the &iberal Party #as furnished #ith a copy of this letter-nomination. On March )5! )+*+! Congressman &eonardo Fuguso as President of the &P Third $istrict Chapter also nominated respondent to :ational President "alonga of the Party. President "alonga! in turn! nominated respondent to "ecretary &uis "antos of the $epartment of &ocal 2overnment pursuant to "ection <. of the &ocal 2overnment Code. On March )=! )+*+! "ecretary "antos! acting for the President! issued an appointment to respondent. Then on March >)! )+*+! the first session day after respondent's appointment! the City Council! by a vote of t#enty-four members in favor #ith no member opposing recogni ed her as member of said Council. Finally! the Presiding Officer of the City Council directed its "ecretariat to include the name of respondent in the payroll of the City Council. Respondent thus assumed and performed her duties as Councilor for the Third $istrict of Manila until the restraining order of the Court issued on ;pril >.! )+*+ #as received by respondent. This petition no# see3s to annul the appointment of respondent Martine and to declare petitioner to be the holder of the position of Councilor in place of deceased "aturnino Herrera. Petitioner anchors his appeal on the follo#ing grounds?

). The "ecretary of the $epartment of &ocal 2overnment! in appointing respondent Martine on March )=! )+*+! violated the election ban on appointments under Res. :o. >.<, of the Comelec dated $ecember =! )+** since her appointment #as not cleared for e7emption from the election ban and! therefore! the same #as made beyond and in e7cess of the "ecretary's authority and by reason of #hich! the appointment is null and void. >. Respondent Martine is not a member of the &iberal Party and cannot be appointed to the position of Councilor! a vacancy created by the death of a member of said Party. 5. Petitioner's appointment is valid! complete and beyond recall. ,. Petitioner is entitled to the position held by respondent. Respondent, on t e ot er and, argues! ). Petitioner misled the Court in claiming that he has a right to the contested position. His appointment #as indorsed only by the Treasurer of the &P Chapter! 5rd $istrict of Manila. The Treasurer's indorsement #as not 3no#n nor authori ed by the head of the &P in said district. :either #as the nomination brought to the attention of the Chairman of the &P! Manila Chapter. The proper procedure #as not observed by petitioner. The unauthori ed action of petitioner cannot be cured or ratified by an alleged resolution of *./ of #ard leaders and #hich resolution #as adopted long after the appointment of petitioner. Hence! petitioner's appointment #as void from the very beginning for lac3 of authority of the Treasurer #ho nominated him. Contrary to petitioner's claim! respondent also contends that the former has not assumed office@ neither has he e7ercised or performed the functions of the position because he #as prevented from doing so by the outright refusal of the City Council to recogni e his appointment. >. Petitioner has no right to the position and for #hich reason! he lac3s the legal personality to institute the present petition for "uo #arranto! mandamus and prohibition. Ahile petitioner claims that he too3 his oath on February +! )+*+ #hich #as a calculated move to avoid the election ban on appointments! he used a Residence Certificate issued on February >>! )+*+ only. This means that he could not have ta3en his alleged oath before the issuance of the residence certificate. 5. The appointment of respondent possesses all the re-uisites of a valid appointment according to legal and regular procedures. "he avers that her appointment #as indorsed by nine out of eleven &P incumbent councilors and that her nomination #as favorably indorsed by the &iberal Party hierarchy from the Chairman of the Third $istrict! thru the Chairman of the Manila Chapter up to the :ational President of the &P@ and! that she #as duly appointed on the basis of the series of nominations of the &P hierarchy. ,. The appointment of respondent is not covered by the election ban contemplated under "ec. >8) 0g1 of the Omnibus Blection Code. The case for respondent appears meritorious. Respondent had gone through the regular and standard nomination process #hich had been officially ac3no#ledged by the "ecretary of &ocal 2overnment. "ec. <. of the &ocal 2overnment Code specifically provides? %n case of permanent vacancy in the sangguniang panlala#igan! sangguniang panglungsod! sangguniang bayan or sangguniang barangay! the President of the Philippines! upon recommendation of the Minister of &ocal 2overnment! shall appoint a -ualified person to fill the vacancy in the sangguniang panlala#igan and sangguniang panglunsod of highly urbani ed and component cities@ the governor! in the case of sangguniang bayan members@ or the city or municipal mayor! in the case of sangguniang barangay members. $%cept for t e sangguniang &arangay, t e appointee s all come from t e political party of t e sangguniang mem&er # o caused t e 'acancy, and s all ser'e t e une%pired term of t e 'acant office . 0Bmphasis supplied1 "ince deceased Councilor "aturnino Herrera #ho had caused the contested vacancy comes from the &iberal Party! it follo#s that his mode of replacement should be governed by the standing rules of the aforenamed Party. Thus! Ae -uote the pertinent sections of the )+8= &iberal Party Revised Rules 0)+=) Reprint furnished by the Comelec1? Rule 5>. Appro'al of Resolution of (istrict, )ro'incial, City of Municipal Go'ernment . Resolutions adopted by provincial! district! city or municipal committee shall not be final unless approved by the :ational $irectorate! the B7ecutive Committee! or the Party President. 06nder Chapter %ll on The Manila City "pecial Rules1 Thus! too! "ection ; 051 of Rule ). of the &iberal Party Rules 0on the Po#ers of the :ational $irectorate1 provides? 51 To choose and proclaim official candidates of the Party for provincial positions! and #henever necessary! convenient or proper! also for Municipal and City positions! in accordance #ith the re-uirements of these Rules. Conformably #ith the afore-uoted provisions of the &iberal Party Rules! all resolutions! #hich may include resolutions nominating replacements for deceased city councilors! should first be approved either by the :ational $irectorate! the B7ecutive Committee or the Party President in order that said resolutions could be considered final and valid. &ogically and by analogy! the :ational $irectorate or in its stead! the B7ecutive Committee or the Party President may choose and nominate the party's proposed appointee! from among its members! to the position vacated by a deceased city councilor. Correspondingly! Ae -uote hereunder the body of the letter-nomination of the then &P :ational President (ovito R. "alonga e7plicitly manifesting the full support of the party hierarchy for herein respondent. Thus C

% hereby nominate in behalf of the &iberal Party of #hich % am the incumbent President Ms. Maria Teresita Herrera-Martine ! to ta3e the place of Councilor "aturnino C. Herrera of the &iberal Party #ho passed a#ay on October ),!)+**. Ms. Martine is li3e#ise the recommendee of the &iberal Party! Manila Chapter headed by former ;ssemblyman &ito ;tien a. "he is also recommended by Congressman &eonardo Fuguso. Please be advised that the &iberal Party! under # ic t e late Councilor Saturnino C. *errera #as elected, as no nominee to t e 'acated position ot er t an Ms. Maria +eresita *errera,Martine-. + is is also to ser'e notice t at no ot er person is aut ori-ed to nominate any .) mem&er to any 'acancy in t e City Council of Manila./ 0Bmphasis supplied1 ;cting on the solid recommendation of the &P hierarchy! from the district level up to the national level! the "ecretary of &ocal 2overnment correspondingly issued the letter-appointment to respondent Martine ! the pertinent portion of #hich reads as follo#s? 0pon t e recommendation of t e )resident of t e .i&eral )arty and t e C apter )resident of t e .i&eral )arty, 1rd (istrict of t e City of Manila ! and pursuant to the provisions of e7isting la#s! you are hereby appointed member of the "angguniang Panglungsod! City of Manila! 4ice Councilor "aturnino C. Herrera. 0Bmphasis supplied1 :otably! respondent's appointment #as accepted or recogni ed by the City Council in its session of March >)! )+*+. The minutes of said session reveal that t#enty-four 0>,1 councilors voted to accept the appointment of respondent and not a single member ob9ected to or opposed the acceptance. Right then and there! the Presiding Officer announced the acceptance of respondent's appointment and the Chair directed the "ecretariat to include her name as a ne# member of the City Council. %n the case of petitioner! ho#ever! a very different scenario too3 place. The letter dated February +! )+*+ of "ecretary &uis "antos informing 4ice-Mayor and Presiding Officer &acuna that he had appointed petitioner and three other appointees! carried a re-uest that due recognition be accorded to them! particularly petitioner as member of the Council. Petitioner and the other appointees! as per minutes of the Council's session of March +! )+*+! #ere e7cluded from the session hall by reason of the seconded motion of the Ma9ority Floor &eader. %n the subse-uent session of the Council on March ),! )+*+! petitioner and his co-appointees #ere formally e7cluded from the session hall #hen si7teen 0) 81 members of the Council voted in favor of their e7clusion and no one against it. "ignificantly! such e7clusion meant that the City Council refused to recogni e their appointments. ;s a conclusive confirmation of the non-recognition of petitioner's defective appointment! the "ecretary of &ocal 2overnment recalled the former's appointment in his letter of March )=! )+*+. The letter thus reads? $ear Mr. Ong? %n connection #ith our letter of February +!)+*+! appointing you as "angguniang Panglunsod member of the City of Manila as a conse-uence of the death of Councilor "aturnino C. Herrera! please be informed that #e are recalling said appointment it appearing t at you #ere not recommended for t e position &y t e appropriate leader of t e .i&eral )arty as mandated &y t e su&,section &234 Rule 565 of t e, Rules and Regulations 6mplementing t e .ocal Go'ernment Code 0Datas Pambansa Dlg. 55=1. 0Bmphasis supplied1 Doth petitioner and respondent have invo3ed the election ban imposed under "ec. >8) 0g1 of the Omnibus Blection Code. The election ban covered the period from February )) to March >=! )+*+ by reason of the Darangay election held on March >*! )+*+. Doth parties have capitali ed on the prohibitive provision for the purpose of having their respective appointments declared illegal or null and void. "ec. >8) 0g1 of the Omnibus Blection Code provides thus? 0g1 ;ppointment of ne# employees! creation of ne# position! promotion! or giving salary increases. $uring the period of forty- five days before a regular election and thirty days before a special election! 0)1 any head! official or appointing officer of a government office! agency or instrumentality! #hether national or local! including government-o#ned or controlled corporations! #ho appoints or hires any ne# employee #hether provisional! temporary or casual! or creates and fills any ne# position! e7cept upon prior authority of the Commission. The Commission shall not grant the authority sought unless! it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned! and that the position shall not be filled in a manner that may influence the election. ;s an e7ception to the foregoing provisions! a ne# employee may be appointed in case of urgent need? Provided! ho#ever! That notice of the appointment shall be given to the Commission #ithin three days from the date of the appointment. ;ny appointment or hiring in violation of this provision shall be null and void. The afore-uoted provision does not apply to both assailed appointments because of the follo#ing reason? The permanent vacancy for councilor e7ists and its filling up is governed by the &ocal 2overnment Code #hile the appointment referred to in the election ban provision is covered by the Civil "ervice &a#. For having satisfied the formal re-uisites and procedure for appointment as Councilor! #hich is an official position outside the contemplation of the election ban! respondent's appointment is declared valid. The issue on the alleged discrepancy bet#een the dates of petitioner's oath and his residence certificate need not be tac3led no# because it #ill not anymore affect the recalled appointment of petitioner. %f ever! the matter casts a doubt on petitioner's credibility and honesty. AHBRBFORB! the petition is hereby $%"M%""B$! and the temporary restraining order is correspondingly &%FTB$.