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G.R. No.

108072 December 12, 1995 Bercede averred that respondent officials, acting in During the hearing on the motion for preventive
conspiracy, had caused the alteration and/or suspension, the parties were directed by the Deputy
HON. JUAN M. HAGAD, in his capacity as Deputy falsification of Ordinance No. 018/92 by increasing the Ombudsman to file their respective memoranda.
Ombudsman for the Visayas, petitioner, allocated appropriation therein from P3,494,364.57 to
vs. P7,000,000.00 without authority from the Sangguniang In his memorandum, Mayor Ouano reiterated that,
HON. MERCEDES GOZO-DADOLE, Presiding Judge, Panlungsod of Mandaue City. The complaints were under Sections 61 and 63 of the Local Government
Branch XXVIII, Regional Trial Court, Mandaue City, separately docketed as Criminal Case No. OMB-VIS-92- Code of 1991, the Office of the President, not the Office
Mandaue City Mayor ALFREDO M. OUANO, Mandaue 391 and as Administrative Case No. OMB-VIS-ADM-92- of the Ombudsman, could lawfully take cognizance of
City Vice-Mayor PATERNO CAÑETE and Mandaue City 015. administrative complaints against any elective official
Sangguniang Panlungsod Member RAFAEL of a province, a highly urbanized city or an independent
MAYOL, respondents. A day after the filing of the complaints, or on 23 July component city and to impose disciplinary sanctions,
1992, a sworn statement was executed by Mandaue including preventive suspensions, and that there was
VITUG, J.: City Council Secretary, Atty. Amado C. Otarra, Jr., in nothing in the provision of the Constitution giving to
support of the accusations against respondent officials. the Office of the Ombudsman superior powers than
The next day, petitioner ordered respondents, including those of the President over elective officials of local
The determination of whether the Ombudsman under
Acting Mandaue City Treasurer Justo G. Ouano and governments.
Republic Act ("R.A.") No. 6770, 1 otherwise known as
Mandaue City Budget Officer Pedro M. Guido, to file
the Ombudsman Act of 1989, has been divested of his
their counter-affidavits within ten (10) days from In an Order, 9 dated 10 September 1992, the Office of
authority to conduct administrative investigations over
receipt of the order. Forthwith, Councilors Dionson and the Deputy Ombudsman denied the motion to dismiss
local elective officials by virtue of the subsequent
Bercede moved for the preventive suspension of and recommended the preventive suspension of
enactment of R.A. No. 7160, 2 otherwise known as the
respondent officials in the separately docketed respondent officials, except City Budget Officer Pedro
Local Government Code of 1991, is the pivotal issue
administrative case. M. Guido, until the administrative case would have
before the Court in this petition.
been finally resolved by the
Aside from opposing the motion for preventive Ombudsman. 10 Respondent officials were formally
The petition seeks (a) to annul the writ of preliminary
suspension, respondent officials, on 05 August 1992, placed under preventive suspension by the Deputy
injunction, dated 21 October 1992, issued against
prayed for the dismissal of the complaint on the ground Ombudsman pursuant to an Order 11 of 21 September
petitioner by respondent trial court and (b) to prohibit
that the Ombudsman supposedly was bereft of 1992.
said court from further proceeding with RTC Case No.
jurisdiction to try, hear and decide the administrative
MDE-14. 3
case filed against them since, under Section 63 of the On 25 September 1992, a petition for prohibition, with
Local Government Code of 1991, the power to prayer for a writ of preliminary injunction and
Parenthetically, Deputy Ombudsman for the Visayas investigate and impose administrative sanctions against temporary restraining order, was filed by respondent
Arturo Mojica assumed the office of Juan Hagad, now said local officials, as well as to effect their preventive officials with the Regional Trial Court of Mandaue City.
resigned, 4 who took the initiative in instituting this suspension, had now been vested with the Office of the Acting favorably on the pleas of petitioning officials,
special civil action for certiorari and prohibition. President. respondent Judge issued, on even date, a restraining
order directed at petitioner, enjoining him ". . . from
The controversy stemmed from the filing of criminal In their opposition, filed on 10 August 1992, Dionson enforcing and/or implementing the questioned order of
and administrative complaints, on 22 July 1992, against and Bercede argued that the Local Government Code of preventive suspension issued in OMB-VIS-ADM-92-
herein respondents Mayor Alfredo Ouano, Vice-Mayor 1991 could not have repealed, abrogated or otherwise 015."
Paterno Cañete and Sangguniang Panlungsod Member modified the pertinent provisions of the Constitution
Rafael Mayol, all public officials of Mandaue City, by granting to the Ombudsman the power to investigate Petitioner moved to dismiss the petition but it was to
Mandaue City Councilors Magno B. Dionson and cases against all public officials and that, in any case, no avail. The court a quo, on 15 October 1992, denied
Gaudiosa O. Bercede with the Office of the Deputy the power of the Ombudsman to investigate local the motion to dismiss and issued an Order for the
Ombudsman for the Visayas. The respondents were officials under the Ombudsman Act had remained issuance of a writ of preliminary injunction, holding
charged with having violated R.A. No. 3019, as unaffected by the provisions of the Local Government thusly:
amended, 5 Articles 170 6 and 171 7 of the Revised Penal Code of 1991.
Code; and R.A. No. 6713. 8Councilors Dionson and
LOCGOV CASES | MEETING 12 Page 1
So by following and applying the well-established rules The instant recourse seeks the nullification of the order Section 21 of the same statute names the officials who
of statutory construction that endeavor should be of 15 October 1992 and the writ of preliminary could be subject to the disciplinary authority of the
made to harmonize the provisions of these two laws in injunction of 21 October 1992 both issued by the trial Ombudsman, viz.:
order that each shall be effective, it is the finding of this court and prays that respondent judge be directed to
Court that since the investigatory power of the desist from further proceeding with RTC Case No. MDE- Sec. 21. Officials Subject to Disciplinary Authority;
Ombudsman is so general, broad and vague and gives 14. Exceptions. — The Office of the Ombudsman shall have
wider discretion to disciplining authority to impose disciplinary authority over all elective and appointive
administrative sanctions against a responsible public There is merit in the petition. officials of the Government and its subdivisions,
official or employee while that of Section 60 of the New instrumentalities and agencies, including Members of
Local Government Code provides for more well defined the Cabinet, local government, government-owned or
The general investigatory power of the Ombudsman is
and specific grounds upon which a local elective official controlled corporations and their subsidiaries except
decreed by Section 13 (1,) Article XI, of the 1987
can be subjected to administrative disciplinary action, over officials who may be removed only by
Constitution, 14 thus:
that it Could be considered that the latter law could be impeachment or over Members of Congress, and the
an exception to the authority and administrative power Judiciary. (Emphasis supplied)
of the Ombudsman to conduct an investigation against Sec. 13. The Office of the Ombudsman shall have the
local elective officials and as such, the jurisdiction now following powers, functions, and duties:
Taken in conjunction with Section 24 of R.A. No. 6770,
to conduct administrative investigation against local
petitioner thus contends that the Office of the
elective officials is already lodged before the offices (1) Investigate on its own, or on complaint by any
Ombudsman correspondingly has the authority to
concerned under Section 61 of Republic Act No. 7160. person, any act or omission of any public official,
decree preventive suspension on any public officer or
employee, office or agency, when such act or omission
employee under investigation by it. Said section of the
xxx xxx xxx appears to be illegal, unjust, improper, or inefficient;
law provides:
while his statutory mandate to act on administrative
complaints is contained in Section 19 of R.A. No. 6770
WHEREFORE, foregoing premises considered, Order is Sec. 24. Preventive Suspension. — The Ombudsman or
that reads:
hereby issued: his Deputy may preventively suspend any officer or
employee under his authority pending an investigation,
Sec. 19. Administrative complaints. — The Ombudsman
1) Expanding the restraining order dated September 25, if in his judgment, the evidence of guilt is strong, and
shall act on all complaints relating, but not limited, to
1992 issued by the Court into an Order for the issuance (a) the charge against such officer or employee involves
acts or omissions which:
of a writ of preliminary injunction upon the posting of dishonesty, oppression or grave misconduct or neglect
the petitioners of the bond in the amount of Fifty in the performance of duty; (b) the charges would
thousand pesos (P50,000.00) conditioned that the 1. Are contrary to law or regulation; warrant removal from the service; or (c) the
latter will pay all the costs that may be adjudged to the respondent's continued stay in office may prejudice the
adverse party and/or damages which he may sustain by 2. Are unreasonable, unfair, oppressive or case filed against him.
reason of the injunction, if the Court will finally adjudge discriminatory;
that the petitioners are not entitled thereto, and The preventive suspension shall continue until the case
3. Are inconsistent with the general course of an is terminated by the Office of the Ombudsman but not
2) Denying the respondent's Motion to Dismiss dated agency's functions, though in accordance with law; more than six months, without pay, except when the
September 28, 1992 for lack of merit. delay in the disposition of the case by the Office of the
4. Proceed from a mistake of law or an arbitrary Ombudsman is due to the fault, negligence or petition
SO ORDERED. 12 ascertainment of facts; of the respondent, in which case the period of such
delay shall not be counted in computing the period of
5. Are in the exercise of discretionary powers but for an suspension herein provided.
A writ of preliminary injunction was issued on 21
October 1992. 13 A motion for reconsideration made by improper purpose; or
petitioner was denied by the trial court. Respondent officials, upon the other hand, argue that
6. Are otherwise irregular, immoral or devoid of the disciplinary authority of the Ombudsman over local
justification. officials must be deemed to have been removed by the
LOCGOV CASES | MEETING 12 Page 2
subsequent enactment of the Local Government Code posits the stand that the Code did not withdraw the Sec. 61. Form and Filing of Complaints. — Verified
of 1991 which vests the authority to investigate power of the Ombudsman theretofore vested under complaints against local elective officials shall be
administrative charges, listed under Section R.A. 6770 conformably with a constitutional mandate. prepared as follows:
60 15 thereof, on various offices. In the case specifically In passing, the Solicitor General has also opined that
of complaints against elective officials of provinces and the appropriate remedy that should have been pursued (a) Against any elective provincial or city official, before
highly urbanized cities, the Code states: by respondent officials is a petition for certiorari before the Minister of Local Government.
this Court rather than their petition for prohibition filed
Sec. 61. Form and Filing of Administrative Complaints. with the Regional Trial Court.
Sec. 63. Preventive Suspension. — (1) Preventive
— A verified complaint against any erring local elective suspension may be imposed by the Minister of Local
officials shall be prepared as follows: Indeed, there is nothing in the Local Government Code Government if the respondent is a provincial or city
to indicate that it has repealed, whether expressly or official, by the provincial governor if the respondent is
(a) A complaint against any elective official of a impliedly, the pertinent provisions of the Ombudsman an elective municipal official, or by the city or municipal
province, a highly urbanized city, an independent Act. The two statutes on the specific matter in question mayor if the respondent is an elective barangay official.
component city or component city shall be filed before are not so inconsistent, let alone irreconcilable, as to
the Office of the President. compel us to only uphold one and strike down the
(2) Preventive suspension may be imposed at any time
other . Well settled is the rule that repeals of laws by
after the issues are joined, when there is reasonable
implication are not favored, 16 and that courts must
Thus respondents insist, conformably with Section 63 ground to believe that the respondent has committed
generally assume their congruent application. 17 The
of the Local Government Code, preventive suspension the act or acts complained of, when the evidence of
two laws must be absolutely incompatible, 18 and a
can only be imposed by: ". . . the President if the culpability is strong, when the gravity of the offense so
clear finding thereof must surface, before the inference
respondent is an elective official of a province, a highly warrants, or when the continuance in office of the
of implied repeal may be drawn. 19 The rule is expressed
urbanized or an independent component city; . . . " respondent could influence the witnesses or pose a
in the maxim, interpretare et concordare legibus est
under sub-paragraph (b) thereof: threat to the safety and integrity of the records and
optimus interpretendi, i.e., every statute must be so
other evidence. In all cases, preventive suspension shall
interpreted and brought into accord with other laws as
(b) Preventive suspension may be imposed at any time not extend beyond sixty days after the start of said
to form a uniform system of jurisprudence. 20 The
after the issues are joined, when the evidence of guilt is suspension.
fundament is that the legislature should be presumed
strong, and given the gravity of the offense, there is to have known the existing laws on the subject and not
great probability that the continuance in office of the to have enacted conflicting statutes. 21 Hence, all (3) At the expiration of sixty days, the suspended
respondent could influence the witnesses or pose a doubts must be resolved against any implied official shall be deemed reinstated in office without
threat to the safety and integrity of the records and repeal, 22and all efforts should be exerted in order to prejudice to the continuation of the proceedings
other evidence; Provided, That, any single preventive harmonize and give effect to all laws on the subject. 23 against him until its termination. However, if the delay
suspension of local elective officials shall not extend in the proceedings of the case is due to his fault,
beyond sixty (60) days: Provided, further, That in the neglect or request, the time of the delay shall not be
Certainly, Congress would not have intended to do
event that several administrative cases are filed against counted in computing the time of suspension.
injustice to the very reason that underlies the creation
an elective official, he cannot be preventively
of the Ombudsman in the 1987 Constitution which "is
suspended for more than ninety (90) days within a The authority to conduct administrative investigation
to insulate said office from the long tentacles of
single year on the same ground or grounds existing and and to impose preventive suspension over elective
officialdom." 24
known at the time of the first suspension. provincial or city officials was at that time entrusted to
the Minister of Local Government until it became
Quite interestingly, Sections 61 and 63 of the present
In his comment, which the Court required considering concurrent with the Ombudsman upon the enactment
Local Government Code run almost parallel with the
that any final resolution of the case would be a matter of R.A. No. 6770, specifically under Sections 21 and 24
provisions then existing under the old code. Section 61
of national concern, the Solicitor-General has viewed thereof, to the extent of the common grant. The Local
and Section 63 of the precursor local Government Code
the Local Government Code of 1991 as having Government Code of 1991 (R.A. No. 7160), in fine, did
of 1983, 25 under the heading of "Suspension and
conferred, but not on an exclusive basis, on the Office not effect a change from what already prevailed, the
Removal," read:
of the President (and the various Sanggunians) modification being only in the substitution of the
disciplinary authority over local elective officials. He
LOCGOV CASES | MEETING 12 Page 3
Secretary (the Minister) of Local Government by the suspension can be decreed on an official under Finally, it does appear, as so pointed out by the Solicitor
Office of the President. investigation after charges are brought and even before General, that respondent official's petition for
the charges are heard. Naturally, such prohibition, being an application for remedy against the
Respondent local officials contend that the 6-month a preventive suspension would occur prior to any findings of petitioner contained in his 21 September
preventive suspension without pay under Section 24 of finding of guilt or innocence. In the early case of Nera 1992 order, should not have been entertained by the
the Ombudsman Act is much too repugnant to the 60- vs. Garcia, 26 reiterated in subsequent cases,27 we have trial court. The proscription in Section 14 of R.A. No.
day preventive suspension provided by Section 63 of said: 6770 reads:
the Local Government Code to even now maintain its
application. The two provisions govern differently. In In connection with the suspension of petitioner before Sec. 14. Restrictions. — No writ of injunction shall be
order to justify the preventive suspension of a public he could file his answer to the administrative issued by any court to delay an investigation being
official under Section 24 of R.A. No. 6770, the evidence complaint, suffice it to say that the suspension was not conducted by the Ombudsman under this Act, unless
of guilt should be strong, and (a) the charge against the a punishment or penalty for the acts of dishonesty and there is a prima facie evidence that the subject matter
officer or employee should involve dishonesty, misconduct in office, but only as a preventive measure. of the investigation is outside the jurisdiction of the
oppression or grave misconduct or neglect in the Suspension is a preliminary step in an administrative Office of the Ombudsman.
performance of duty; (b) the charges should warrant investigation. If after such investigation, the charges
removal from the service; or (c) the respondent's are established and the person investigated is found No court shall hear any appeal or application for
continued stay in office would prejudice the case filed guilty of acts warranting his removal, then he is remedy against the decision or findings of the
against him. The Ombudsman can impose the 6-month removed or dismissed. This is the penalty. There is, Ombudsman, except the Supreme Court, on pure
preventive suspension to all public officials, whether therefore, nothing improper in suspending an officer question of law.
elective or appointive, who are under investigation. pending his investigation and before the charges
Upon the other hand, in imposing the shorter period of against him are heard and be given an opportunity to
Likewise noteworthy is Section 27 of the law which
sixty (60) days of preventive suspension prescribed in prove his innocence.
prescribes a direct recourse to this Court on matters
the Local Government Code of 1991 on an elective local
involving orders arising from administrative disciplinary
official (at any time after the issues are joined), it would Moreover, respondent officials were, in point of fact, cases originating from the Office of the Ombudsman;
be enough that (a) there is reasonable ground to put on preventive suspension only after petitioner had thus:
believe that the respondent has committed the act or found, in consonance with our ruling in Buenaseda
acts complained of, (b) the evidence of culpability is vs. Flavier, 28 that the evidence of guilt was strong.
strong, (c) the gravity of the offense so warrants, or (d) Sec. 27. Effectivity and Finality of Decisions. — . . .
Petitioner gave his justification for the preventive
the continuance in office of the respondent could suspension in this wise:
influence the witnesses or pose a threat to the safety In all administrative disciplinary cases, orders,
and integrity of the records and other evidence. directives, or decisions of the Office of the Ombudsman
After a careful and honest scrutiny of the evidence
may be appealed to the Supreme Court by filing a
submitted on record, at this stage, it is the holding of
Respondent officials, nevertheless, claim that petitioner petition for certiorari within ten (10) days from receipt
this office that the evidence of guilt against the
committed grave abuse of discretion when he caused of the written notice of the order, directive or decision
respondents in the instant case is strong. There is no
the issuance of the preventive suspension order or denial of the motion for reconsideration in
question that the charge against the respondents
without any hearing. accordance with Rule 45 of the Rules of Court.
involves dishonesty or gross misconduct which would
(Emphasis supplied)
warrant their removal from the service and there is no
The contention is without merit. The records reveal gainsaying the fact that the charge for falsification of
that petitioner issued the order of preventive veritable documents like city ordinances are very All told, petitioner is plainly entitled to the relief prayed
suspension after the filing (a) by respondent officials of serious charges that affect the very foundations of duly for, and we must, accordingly; grant the petition.
their opposition on the motion for preventive established representative governments. Finally, it is
suspension and (b) by Mayor Ouano of his likewise the holding of this office at this stage that the WHEREFORE, the questioned writ of preliminary
memorandum in compliance with the directive of continued stay in office of respondents may prejudice injunction of 21 October 1992 is ANNULLED and SET
petitioner. Be that, as it may, we have heretofore held the judicious investigation and resolution of the instant ASIDE, and RTC Case No. MDE-14 is hereby ordered
that, not being in the nature of a penalty, a preventive case. 29 DISMISSED. No costs.

LOCGOV CASES | MEETING 12 Page 4


SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Romero,


Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco,
Hermosisima, Jr. and Panganiban, JJ., concur.

Davide, Jr., J., took no part.

LOCGOV CASES | MEETING 12 Page 5


OFFICE OF THE OMBUDSMAN, G.R. No. 172700 Meanwhile, in its 10 September 2003 order,[9] the claimed he had not received any resolution or decision
Petitioner,CARPIO, J., Chairperson,NACHURA, Ombudsman required Rodriguez to file his answer. dismissing the complaint filed in the sangguniang
PERALTA, Rodriguez filed on 24 October 2003 a motion to bayan. In reply,[19] complainants maintained there was
- versus - ABAD, and dismiss[10] the case filed in the Ombudsman on the no more complaint pending in thesangguniang
MENDOZA, JJ.ROLSON RODRIGUEZ, Promulgated: grounds of litis pendentia and forum shopping. He bayan since the latter had granted their motion to
Respondent. July 23, 2010 alleged that the sangguniang bayan had already withdraw the complaint. In a rejoinder,[20] Rodriguez
x----------------------------------------- acquired jurisdiction over his person as early as 8 averred that the sangguniang bayan resolution
- - - - - - - - - -x September 2003. dismissing the case filed against him was not valid
because only the vice-mayor signed it.
The municipal vice-mayor set the case for hearing on 3
DECISION October 2003.[11] Since complainants had no counsel, The Ruling of the Ombudsman
CARPIO, J.: the hearing was reset to a later date. When the case
The Case was called again for hearing, complainants counsel In its 21 September 2004 Decision,[21] the Ombudsman
manifested that complainants would like to withdraw found Rodriguez guilty of dishonesty and oppression. It
This is a petition for review[1] of the 8 May 2006 the administrative complaint filed in the sangguniang imposed on Rodriguez the penalty of dismissal from the
Decision[2] of the Court of Appeals in CA-G.R. SP No. bayan. On 29 October 2003, complainants filed a service with forfeiture of all benefits, disqualification to
00528 setting aside for lack of jurisdiction the 21 motion[12] to withdraw the complaint lodged in hold public office, and forfeiture of civil service
September 2004 Decision[3] of the Ombudsman the sangguniang bayan on the ground that they eligibilities. Rodriguez filed a motion for
(Visayas) in OMB-V-A-03-0511-H. wanted to prioritize the complaint filed in the reconsideration.[22] In its 12 January 2005 Order,[23] the
Ombudsman. Rodriguez filed a comment[13] praying Ombudsman denied the motion for reconsideration. In
The Antecedent Facts that the complaint be dismissed on the ground of its 8 March 2005 Order,[24] the Ombudsman directed
forum shopping, not on the ground complainants the mayor of Binalbagan, Negros Occidental to
On 26 August 2003, the Ombudsman in Visayas stated. In their opposition,[14]complainants admitted implement the penalty of dismissal against Rodriguez.
received a complaint[4] for abuse of authority, they violated the rule against forum shopping and
dishonesty, oppression, misconduct in office, and claimed they filed the complaint in the sangguniang Rodriguez filed in the Court of Appeals a petition for
neglect of duty against Rolson Rodriguez, punong bayan without the assistance of counsel. In his 4 review with prayer for the issuance of a temporary
barangay in Brgy. Sto. Rosario, Binalbagan, Negros November 2003 Resolution,[15] the municipal vice- restraining order.
Occidental. On 1 September 2003, the sangguniang mayor dismissed the case filed in the sangguniang
bayan of Binalbagan, Negros Occidental, through vice- bayan. The Ruling of the Court of Appeals
mayor Jose G. Yulo, received a similar
complaint[5] against Rodriguez for abuse of authority, In its 29 January 2004 order,[16] the Ombudsman In its 8 May 2006 Decision,[25] the Court of Appeals set
dishonesty, oppression, misconduct in office, and directed both parties to file their respective verified aside for lack of jurisdiction the Decision of the
neglect of duty. position papers. Rodriguez moved for reconsideration Ombudsman and directed the sangguniang bayan to
of the order citing the pendency of his motion to proceed with the hearing on the administrative case.
In its 8 September 2003 notice,[6] the municipal vice- dismiss.[17] In its 11 March 2004 order,[18] the The appellate court reasoned that the sangguniang
mayor required Rodriguez to submit his answer within Ombudsman stated that a motion to dismiss was a bayan had acquired primary jurisdiction over the
15 days from receipt of the notice. On 23 September prohibited pleading under Section 5 (g) Rule III of person of Rodriguez to the exclusion of the
2003, Rodriguez filed a motion to dismiss[7] the case Administrative Order No. 17. The Ombudsman Ombudsman. The Court of Appeals relied on Section 4,
filed in the sangguniang bayan on the ground that the reiterated its order for Rodriguez to file his position Rule 46 of the Rules of Court, to wit:
allegations in the complaint were without factual basis paper.
and did not constitute any violation of law. In a Sec. 4. Jurisdiction over person of
compliance[8] dated 22 October 2003, Rodriguez alleged In his position paper, Rodriguez insisted that respondent, how acquired. The court
complainants violated the rule against forum shopping. the sangguniang bayan still continued to exercise shall acquire jurisdiction over the
jurisdiction over the complaint filed against him. He person of the respondent by the

LOCGOV CASES | MEETING 12 Page 6


service on him of its order or complaints in two disciplining authorities exercising The primary jurisdiction of the Ombudsman to
resolution indicating its initial action concurrent jurisdiction. investigate any act or omission of a public officer or
on the petition or by his voluntary employee applies only in cases cognizable by
submission to such jurisdiction. The Issues the Sandiganbayan. In cases cognizable by regular
courts, the Ombudsman has concurrent jurisdiction
The appellate court noted that the sangguniang The issues submitted for resolution are (1) whether with other investigative agencies of
bayan served on Rodriguez a notice, requiring the latter complainants violated the rule against forum shopping government.[27] Republic Act No. 8249, otherwise
to file an answer, on 8 September 2003 while the when they filed in the Ombudsman and known as An Act Further Defining the Jurisdiction of
Ombudsman did so two days later or on 10 September the sangguniang bayanidentical complaints against the Sandiganbayan, limits the cases that are cognizable
2003. Rodriguez; and (2) whether it was the sangguniang by the Sandiganbayan to public officials occupying
bayan or the Ombudsman that first acquired positions corresponding to salary grade 27 and
Petitioner Ombudsman contends that upon the filing of jurisdiction. higher. The Sandiganbayanhas no jurisdiction over
a complaint before a body vested with jurisdiction, that private respondent who, as punong barangay, is
body has taken cognizance of the complaint. Petitioner The Courts Ruling occupying a position corresponding to salary grade 14
cites Blacks Law Dictionary in defining what to take under Republic Act No. 6758, otherwise known as the
cognizance means to wit, to acknowledge or exercise The petition has merit. Compensation and Position Classification Act of
jurisdiction. Petitioner points out it had taken 1989.[28]
cognizance of the complaint against Rodriguez before a Paragraph 1, Section 13 of Article XI of the Constitution
similar complaint was filed in the sangguniang provides: Under Republic Act No. 7160, otherwise known as the
bayan against the same respondent. Petitioner Local Government Code, the sangguniang
maintains summons or notices do not operate to vest in Sec. 13. The Ombudsman shall have the following panlungsod or sangguniang bayan has disciplinary
the disciplining body jurisdiction over the person of the powers, functions, and duties: authority over any elective barangay official, to wit:
respondent in an administrative case. Petitioner
concludes that consistent with the rule on concurrent (1) Investigate on its own, or on complaint by any SEC. 61. Form and Filing of Administrative Complaints.
jurisdiction, the Ombudsmans exercise of jurisdiction person, any act or omission of any public official, A verified complaint against any erring elective official
should be to the exclusion of the sangguniang bayan. employee, office, or agency, when such act or omission shall be prepared as follows:
appears to be illegal, unjust, improper, or inefficient.
Private respondent Rolson Rodriguez counters that Section 15 of Republic Act No. 6770, otherwise known xxxx
when a competent body has acquired jurisdiction over as the Ombudsman Act of 1989, states:
a complaint and the person of the respondent, other (c) A complaint against any elective barangay official
bodies are excluded from exercising jurisdiction over Sec. 15. Powers, Functions, and Duties. The shall be filed before the sangguniang
the same complaint. He cites Article 124 of the Ombudsman shall have the following powers, panlungsod or sangguniang bayan concerned whose
Implementing Rules and Regulations of Republic Act functions, and duties: decision shall be final and executory.
No. 7160,[26] which provides that an elective official
may be removed from office by order of the proper (1) Investigate and prosecute on its own or on Clearly, the Ombudsman has concurrent jurisdiction
court or the disciplining authority whichever first complaint by any person, any act or omission of any with the sangguniang bayan over administrative cases
acquires jurisdiction to the exclusion of the other. public officer or employee, office or agency, when such against elective barangay officials occupying positions
Private respondent insists the sangguniang bayan first act or omission appears to be illegal, unjust, improper, below salary grade 27, such as private respondent in
acquired jurisdiction over the complaint and his person. or inefficient. It has primary jurisdiction over cases this case.
He argues jurisdiction over the person of a respondent cognizable by the Sandiganbayan and, in the exercise
in an administrative complaint is acquired by the of this primary jurisdiction, it may take over, at any The facts in the present case are analogous to those
service of summons or other compulsory processes. stage, from any investigatory agency of Government, in Laxina, Sr. v. Ombudsman,[29] which likewise involved
Private respondent stresses complainants violated the the investigations of such cases. identical administrative complaints filed in both the
rule against forum shopping when they filed identical Ombudsman and the sangguniang panlungsod against

LOCGOV CASES | MEETING 12 Page 7


a punong barangay for grave misconduct. The Court WHEREFORE, we GRANT the petition. We SET
held therein that the rule against forum shopping ASIDE the 8 May 2006 Decision of the Court of Appeals
applied only to judicial cases or proceedings, not to in CA-G.R. SP No. 00528. We AFFIRM the 21 September
administrative cases.[30] Thus, even if complainants filed 2004 Decision of the Ombudsman (Visayas) in OMB-V-
in the Ombudsman and the sangguniang A-03-0511-H.
bayan identical complaints against private respondent,
they did not violate the rule against forum shopping No pronouncement as to costs.
because their complaint was in the nature of an
administrative case. SO ORDERED.

In administrative cases involving the concurrent


jurisdiction of two or more disciplining authorities, the
body in which the complaint is filed first, and which
opts to take cognizance of the case, acquires
jurisdiction to the exclusion of other tribunals
exercising concurrent jurisdiction.[31] In this case, since
the complaint was filed first in the Ombudsman, and
the Ombudsman opted to assume jurisdiction over the
complaint, the Ombudsmans exercise of jurisdiction is
to the exclusion of the sangguniang bayanexercising
concurrent jurisdiction.

It is a hornbook rule that jurisdiction is a matter of law.


Jurisdiction, once acquired, is not lost upon the
instance of the parties but continues until the case is
terminated.[32] When herein complainants first filed the
complaint in the Ombudsman, jurisdiction was already
vested on the latter. Jurisdiction could no longer be
transferred to the sangguniang bayan by virtue of a
subsequent complaint filed by the same complainants.

As a final note, under Section 60 of the Local


Government Code, the sangguniang bayan has no
power to remove an elective barangay official. Apart
from the Ombudsman, only a proper court may do
so.[33] Unlike the sangguniang bayan, the powers of the
Ombudsman are not merely recommendatory. The
Ombudsman is clothed with authority to directly
remove[34] an erring public official other than members
of Congress and the Judiciary who may be removed
only by impeachment.[35]

LOCGOV CASES | MEETING 12 Page 8


[G.R. No. 125498. February 18, 1999] On 14 August 1993, petitioners received a Notice Project Engineer, respectively, of Philwood
CONRADO B. RODRIGO, JR., ALEJANDRO A. FACUNDO of Disallowance dated 21 June 1993 from the Provincial Construction.
and REYNALDO G. MEJICA, petitioners, vs. THE Auditor of Pangasinan, Atty. Agustin Chan, Jr., who
HONORABLE SANDIGANBAYAN (First Division), found that as per COA (Commission on Audit) On 10 June 1995, Acting Ombudsman Francisco
OMBUDSMAN and PEOPLE OF THE evaluation of the electrification project, only 60.0171% Villa approved the filing of an information against
PHILIPPINES, respondents. of the project (equivalent to P291,915.07) was actually petitioners for violation of Section 3 (e) of Republic Act
DECISION accomplished. Of the two units of generator No. 3019[6] before the Sandiganbayan.
KAPUNAN, J.: supposedly purchased, only one second-hand unit was On 28 July 1995, petitioners filed a motion for
delivered. The same generator broke down after only reinvestigation before
Petitioners Conrado B. Rodrigo and Reynaldo G. two nights of operation. In addition, instead of 40
Mejica are the Mayor and Municipal Planning and the Sandiganbayan. The Sandiganbayan granted said
wooden posts, only 27 were installed. The powerhouse motion in an Order dated 22 April 1996.
Development Coordinator, respectively, of San Nicolas, was only 65.635% completed.The Provincial Auditor
Pangasinan, while petitioner Alejandro A. Facundo is thus disallowed the amount of P160,910.46. On 7 November 1995, the Office of the Special
the former Municipal Treasurer of the same Prosecutor issued a memorandum recommending that
municipality. The graph below serves to illustrate the conflicts the charges against petitioners be maintained. The
between Mejicas report and the COAs: Ombudsman approved said memorandum.
On 15 June 1992, the Municipality of San Nicolas,
represented by Mayor Rodrigo, entered into an Percentage Petitioners thereafter filed before
agreement with Philwood Construction, represented by the Sandiganbayan a motion to quash the information
Larry Lu, for the electrification of Barangay Caboloan, Accomplished alleging, as grounds therefor that (1) the facts alleged
San Nicolas, for the sum of P486,386.18, requiring: Amount paid P452,825.53 93.0090% (accdg. to in the information did not constitute an offense, and (2)
Mejicas the same information charged more than one
1. Installation of the two (2) units diesel power By Municipality report) offense. Petitioners, however, did not elaborate on
generator (20) KVA, 220 W, Battery start and other Cost of Actual P291,915.07 60.0171% (accdg. to these grounds. They instead faulted the Provincial
accessories); COA Auditor for instituting the complaint against them
report) notwithstanding the pendency of their opposition to
Accomplishment
2. Installation of 24 rolls feeder lines with nos. 6, 8 and the notice of disallowance. They also argued that the
Amount P160,910.46 33.08% (difference) evidence against them did not establish the element of
ten wires;
damage nor the presence of any conspiracy between
Disallowed them.
3. Installation of 40 units 4 x 4 wooden post with
accessories; and In September 1993, petitioners requested the The Sandiganbayan denied said motion in an
Provincial Auditor to lift the notice of Order dated 18 March 1996.
4. Construction of powerhouse with concrete disallowance[2] and to re-inspect the
foundation double throw safety switches (double project.[3] Petitioners reiterated their plea in a letter to On 18 March 1996, the prosecution moved to
pole, 250 amperes capacity of 220 V with fuse).[1] the Provincial Auditor dated 3 November suspend petitioners pendente lite. Petitioners opposed
1993,[4] attaching therewith a Certificate of Acceptance the motion on the ground that
and Completion[5] signed by Clemente Arquero, Jr., the Sandiganbayan lacked jurisdiction over them. In a
On 2 September 1992, Mejica, the Planning and
Barangay Captain of Caboloan, and Eusebio Doton, Resolution dated 2 July 1996, the Sandiganbayan ruled
Development Coordinator of San Nicolas, prepared an
President of the Cabaloan Electric Cooperative. The that it had jurisdiction over petitioners and ordered the
Accomplishment Report stating that the Caboloan
Provincial Auditor, however, allegedly did not act on suspension of petitioners pendente lite.
Power Generation project was 97.5%
accomplished. Said report was supposedly approved by petitioners requests. Petitioners thus filed before this Court the instant
mayor Rodrigo and confirmed by Larry Lu. On the basis On 10 January 1994, the Provincial Auditor filed a petition for certiorari under Rule 65, praying that the
of said report, payment of P452,825.53 was effected by criminal complaint for estafa before the Ombudsman Court annul: (a) the order of
the Municipal Treasurer, petitioner Facundo, to against petitioners. Likewise impleaded were Larry Lu the Sandiganbayan denying petitioners motion to
Philwood Construction. and Ramil Ang, President and General Manager, and quash, and (b) the resolution of the same court

LOCGOV CASES | MEETING 12 Page 9


upholding its jurisdiction over petitioners. Petitioners THE PRECIPITATE SANDIGANBAYAN ORDER OF It shall be the responsibility of the auditor to exercise
likewise prayed that this Court issue a temporary SUSPENSION IS A LEGAL ERROR AS THE SAME sound judgment in evaluating the written explanation
restraining order to enjoin the Sandiganbayan from EVIDENTLY THE LACK OF THE REQUIRED COLD of the accountable/responsible/liable officer concerned
proceeding with the case. NEUTRALITY OF AN IMPARTIAL TRIBUNAL VIOLATING for the purpose of lifting the suspension or extending
PETITIONERS CONSTITUTIONAL RIGHTS UNDER the time to answer beyond the ninety (90) day period
On 28 August 1998, the court resolved to issue THE DUE PROCESS CLAUSE AND BILL OF RIGHTS.[7] prior to its conversion into a
the temporary restraining order prayed for. disallowance. (Underscoring supplied.)
Petitioners allege the following grounds in The first ground raises two issues: (1) whether
support of their petition: petitioners right to due process was violated by the The aforequoted provision should be read in
filing of the complaint against them by the Provincial conjunction with Section 82 of the State Audit
I Auditor, and (2) whether the Ombudsman committed Code,[9] which states that:
grave abuse of discretion in filing the information
THE SANDIGANBAYAN ERRED IN ALLOWING against petitioners. The second questions the (a) charge of suspension which is not satisfactorily
THE LITIGATION OF THE CRIMINAL INFORMATION jurisdiction of the Sandiganbayan over petitioners. The explained within ninety days after receipt or
FOR CONSPIRACY IN VIOLATING SECTION 3(E) OF THE third and fourth grounds are related to the first and are notice by the accountable officer concerned shall
ANTI- GRAFT ACT (R.A.3019) WHEN THE NOTICE subsumed thereunder. become a disallowance, unless the Commission or
OF DISALLOWANCE STILL PENDS WITH THE PROVINCIAL auditor concerned shall, in writing and for good
AUDITOR UNDER PETITIONER PROTEST SUPPORTED After a meticulous scrutiny of petitioners
cause shown, extend the time for answer beyond
BY CERTIFICATE OF COMPLETION AND ACCEPTANCE OF arguments, we find the petition devoid of merit.
ninety days.
THE REQUIRED ELEMENT OF 'CAUSING UNDUE INJURY I
TO ANY PARTY, INCLUDING THE GOVERNMENT
At this point, it may be useful to distinguish
AND GROSS NEGLIGENCE. Petitioners contend that the institution by the
between a disallowance and a
Provincial Auditor of the complaint despite the
suspension. A disallowance is the disapproval of a
II pendency of their opposition to the notice of
credit or credits to an account/accountable officers
disallowance violates their right to due process. They
accountability due to non-compliance with law or
submit that the issuance of a notice of disallowance
THE SANDIGANBAYAN HAS NO JURISDICTION TO regulations.[10] Thus, the auditor may disallow an
against (them) compels the provincial auditor to either
PROCEED AGAINST ALL THE PETITIONERS AND ALL THE expenditure/transaction which is unlawful or
accept a settlement or adjudicate and decide on the
PROCEEDINGS THEREIN, PARTICULARLY THE ORDER OF improper.[11]
written explanation for the purpose of lifting/settling
SUSPENSION FROM OFFICE PENDENTE LITE, ARE NULL
the suspension or extending the time to answer beyond A suspension, on the other hand, is the
AND VOID AB INITIO.
the ninety (90) day period prior to its conversion into a deferment of action to debit/credit the
disallowance.[8] account/accountable officers accountability pending
III
compliance with certain requirements.[12] A notice of
The italicized portion above is an excerpt from
suspension is issued on transactions or accounts which
THE ONGOING PROCEEDINGS BEFORE Section 44.6.4 of the State Audit Manual, which states
could otherwise have been settled except for some
THE SANDIGANBAYAN IS A CLEAR VIOLATION OF THE in full:
requirements, like lack of supporting documents or
CONSTITUTIONAL RIGHTS OF THE PETITIONERS UNDER certain signatures. It is also issued on transactions or
THE DUE PROCESS CLAUSEAS IT WAS PRECEDED BY Sec. 44.6.4. Auditors Responsibility re Evaluation of accounts the legality/propriety of which the auditor
HASTY, MALICIOUS, SHAM AND HASTY PRELIMINARY Disallowance. It shall be the responsibility of the doubts but which he may later allow after satisfactory
INVESTIGATION INEVITABLY EXPOSING THEM TO A auditor to exercise professional judgment in evaluating, or valid justification is submitted by the parties
PROLONGED ANXIETY, AGGRAVATION, EXPENSES, AND on the basis of the facts and circumstances of each case concerned.[13]
HUMILIATION OF A PUBLIC TRIAL. as well as the pertinent provisions of applicable laws,
rules and regulations, the grounds for a charge or As stated in Section 82, supra, however, the
IV suspension/disallowance of an account or transaction. suspension shall become a disallowance if the charge of
suspension is not satisfactorily explained within ninety
days after receipt or notice by the accountable officer

LOCGOV CASES | MEETING 12 Page 10


concerned." The ninety-day period within which the Section 56 imposes upon the Provincial Auditor Petitioners argue that their opposition to the
accountable officer may answer the charge of the duty to file a complaint before the Tanodbayan disallowance, supported as it is by a certificate of
suspension may nevertheless be extended by the (now the Ombudsman) when, from the evidence acceptance and completion, would betray the absence
Commission or the auditor for good cause shown. obtained during the audit, he is convinced that criminal of the elements of evident bad faith or negligence, and
prosecution is warranted. The Provincial Auditor need damage. They likewise claim that the evidence does not
Clearly, petitioners misinterpreted Section not resolve the opposition to the notice of disallowance establish conspiracy among them.
44.6.4. First, petitioners were not charged and the motion for re-inspection pending in his office
with suspension but disallowance. Second, the written before he institutes such complaint so long as there are The presence or absence of the elements of the
explanation referred to in said section is for the sufficient grounds to support the same. The right to crime, however, is evidentiary in nature and is a matter
purpose of lifting the suspension or extending the time due process of the respondents to the complaint, of defense, the truth of which can be best passed upon
to answer beyond the ninety (90) day period prior to its insofar as the criminal aspect of the case is concerned, after a full-blown trial on the merits.[15] The same
conversion into a disallowance, not for contesting a is not impaired by such institution. The respondents applies to the alleged absence of any conspiracy
disallowance, as petitioners wrongfully assert. Section will still have the opportunity to confront the between the accused.
44.6.4., therefore, finds no application in this case. accusations contained in the complaint during the This Court, moreover, has maintained a consistent
On the other hand, respondents correctly invoke preliminary investigation. They may still raise the same policy of non-interference in the determination of the
Sections 55 and 56 of Commission on Audit Circular No. defenses contained in their motion to lift the Ombudsman regarding the existence of probable cause,
85-156-B, which respectively provide: disallowance, as well as other defenses, in the provided there is no grave abuse in the exercise of such
preliminary investigation. Should the Provincial Auditor discretion.[16] In a recent decision,[17] this Court,
later reverse himself and grant respondents motions, or quoting Young vs. Office of the Ombudsman,[18] stated
SECTION 55. REPORTING FRAUD/UNLAWFUL
should the COA, or this Court, subsequently absolve the rationale for this rule:
ACTIVITIES
them from liability during the pendency of the
preliminary investigation, the respondents may ask the
If after evaluation of the findings, the auditor is ... The rule is based not only upon respect for the
prosecuting officer to take cognizance of such
convinced that the evidence sufficiently discloses the investigatory and prosecutory powers granted by the
decision. The prosecuting officer may then accord such
fraud and other unlawful activities and identifies the Constitution to the Office of the Ombudsman but upon
decision its proper weight.
perpetrators thereof, he shall prepare the sworn practicality as well. Otherwise, the functions of the
statements of the examining witnesses and/or other It bears stressing that the exoneration of court will be grievously hampered by innumerable
witnesses and make a report to the Manager/Regional respondents in the audit investigation does not mean petitions assailing the dismissal of investigatory
Director concerned, attaching thereto copies of the the automatic dismissal of the complaint against proceedings conducted by the Office of the
pertinent affidavits and other supporting documents. them. The preliminary investigation, after all, is Ombudsman with regard to complaints filed before it,
independent from the investigation conducted by the in much the same way that the courts would be
COA, their purposes distinct from each other. The first extremely swamped if they could be compelled to
SECTION 56. INSTITUTION OF CRIMINAL ACTION
involves the determination of the fact of the review the exercise of discretion on the part of the
commission of a crime; the second relates to the fiscals or prosecuting attorneys each time they decide
If criminal prosecution is warranted, the Regional to file an information in court or dismiss a complaint by
administrative aspect of the expenditure of public
Director/Manager concerned with respect to National a private complainant.
funds.[14]
Government Agencies/government Owned or
Controlled Corporations or Provincial/City Auditors Accordingly, we hold that the Ombudsman did
Petitioners have failed to establish any such abuse
with respect to local government units shall prepare a not err in entertaining the complaint filed by the
on the part of the Ombudsman.
letter-complaint and file the same with the Tanodbayan Provincial Auditor against petitioners, nor
or the local deputized Tanodbayan prosecutor within the Sandiganbayan in allowing trial to proceed, despite III
ten (10) days from receipt of the report from the the pendency of petitioners motions before the
examining auditor, attaching thereto copies of the auditor. Petitioners next question the jurisdiction of
sworn statements or affidavits of witnesses and other the Sandiganbayan. They contend that Mayor Rodrigo
pertinent documents. II occupies a position of Grade 24 and is, therefore,
beyond the original and exclusive jurisdiction of
theSandiganbayan.

LOCGOV CASES | MEETING 12 Page 11


Before the passage of Republic Act No. 7975[19] on whether in a permanent, acting or interim capacity, at (4) Chairmen and members of Constitutional
30 March 1995, the pertinent portions of section 4 of the time of the commission of the offense: Commissions, without prejudice to the provisions of the
Presidential Decree No. 1606,[20] as amended by Constitution; and
Presidential Decree No. 1861,[21] read as follows: (1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise (5) All other national and local officials classified as
SEC. 4. Jurisdiction. The Sandiganbayan shall exercise: classified as grade 27 and higher, of the Compensation Grade 27 and higher under the Compensation and
and Position Classification Act of 1989 (Republic Act No. Position Classification Act of 1989.
(a) Exclusive original jurisdiction in all cases 6758), specifically including:
involving: b. Other offenses or felonies committed by the public
(a) Provincial governors, vice-governors, members of officials and employees mentioned in subsection (a) of
(1) Violations of Republic Act No. 3019, as amended, the sangguniang panlalawigan and provincial this section in relation to their office.
otherwise known as the Anti-Graft and Corrupt treasurers, assessors, engineers, and other provincial
Practices Act, Republic Act No. 1379, and Chapter II, department heads; c. Civil and criminal cases filed pursuant to and in
Section 2, Title VII of the Revised Penal Code; connection with Executive Order Nos. 1, 2, 14 and 14-A.
(b) City mayors, vice-mayors, members of
(2) Other offenses or felonies committed by public the sangguniang panlungsod, city treasurers, assessors, In cases where none of the principal accused are
officers and employees in relation to their office, engineers, and other city department heads. occupying positions corresponding to salary grade 27 or
including those employed in government-owned or higher, as prescribed in the said Republic Act No. 6758,
controlled corporations, whether simple or complexed (c) Officials of the diplomatic service occupying the or PNP officers occupying the rank of superintendent or
with other crimes, where the penalty prescribed by law position of consul and higher; higher, or their equivalent, exclusive jurisdiction
is higher than prision correccional or imprisonment for thereof shall be vested in the proper Regional Trial
six (6) years, or a fine of P6,000.00; PROVIDED, (d) Philippine army and air force colonels, naval Court, Metropolitan Trial Court, Municipal Trial Court,
HOWEVER, that offenses or felonies mentioned in this captains, and all officers of higher rank; and Municipal Circuit Trial Court, as the case may be,
paragraph where the penalty prescribed by law does pursuant to their respective jurisdictions as provided in
not exceed prision correccional or imprisonment for six Batas Pambansa Blg. 129.
(e) PNP chief superintendent and PNP officers of higher
(6) years or a fine of P6,000.00 shall be tried by the
rank;
proper Regional Trial Court, Metropolitan Trial Court, xxx
Municipal Trial Court and Municipal Circuit Trial Court.
(f) City and provincial prosecutors and their assistants, Then Associate, now Chief Justice, Hilario Davide
and officials and prosecutors in the Office of the explained the effects of these amendments in People
xxx.
Ombudsman and special prosecutor; vs. Magallanes:[22]
Section 2 of R.A. No. 7975 subsequently redefined
the jurisdiction of the Anti-Graft Court such that the (g) Presidents, directors or trustees, or managers of As a consequence of these amendments,
pertinent portions of Section 4 of P.D. No. 1606 now government-owned or controlled corporations, state the Sandiganbayan partly lost its exclusive original
reads: universities or educational institutions or foundations; jurisdiction in cases involving violations of R.A. No.
3019, as amended,[23] as amended; R.A. No. 1379,[24]and
Chapter II, Section 2, Title VII of the Revised Penal
Sec. 4. Jurisdiction. -- the Sandiganbayan shall exercise (2) Members of Congress and officials thereof classified
Code,[25] it retains only cases where the accused are
original jurisdiction in all cases involving: as Grade 27 and up under the Compensation and
those enumerated in subsection a, Section 4 above
Position Classification Act of 1989;
and, generally, national and local officials classified as
a. Violations of Republic Act No. 3019, as amended, Grade 27 and higher under the Compensation and
otherwise known as the Anti-Graft and Corrupt (3) Members of the judiciary without prejudice to the Position Classification Act of 1989 (R.A. No.
Practices Act, Republic Act No. 1379, and Chapter II, provisions of the Constitution; 6758). Moreover, its jurisdiction over other offenses or
Section 2, Title VII of the Revised Penal Code, where felonies committed by public officials and employees in
one or more of the principal accused are officials relation to their office is no longer determined by the
occupying the following positions in the government, prescribed penalty, viz., that which is higher
LOCGOV CASES | MEETING 12 Page 12
than prision correccional or imprisonment for six years the Regional Trial Court or the Municipal Trial Court in City Government Department Head III
or a fine of P6,000.00; it is enough that they are their respective localities, as the case may be. City Trial Court Judge
committed by those public officials and employees Clerk of the Commission
enumerated in subsection a, Section 4 above. However, To distinguish the big fish from the small fry, Commission Member I
it retains its exclusive original jurisdiction over civil and Congress deemed the 27th Grade as the demarcation Court Attorney VI
criminal cases filed pursuant to or in connection with between those who should come under the jurisdiction Court of Appeals Reporter II
E.O. Nos. 1,[26] 2,[27] 14,[28] and 14-A.[29] of the Sandiganbayan and those within the regular Deputy Administrator I
courts. (While H.B. No. 9825 originally intended only Deputy Commissioner I
The apparent intendment of these amendments is Deputy Executive Director III
officials of Grade 28 and above as within the exclusive
to ease the dockets of the Sandiganbayan and to allow Deputy Insurance Commissioner
and original jurisdiction of the Sandiganbayan, the
the Anti-Graft Court to focus its efforts on the trial of Director III
resulting law included officials of Grade 27.) Thus,
those occupying higher positions in government, the Executive Clerk of Court II
officials occupying positions of Grade 27 and above,
proverbial big fish. Section 4, as amended, freed Executive Director II
charged with crimes referred to in Section 4 a. and b.,
the Sandiganbayan from the task of trying cases Government Corporate Attorney III
are within the original and exclusive jurisdiction of the
involving lower-ranking government officials, imposing Graft Investigation Officer II
Sandiganbayan; those below come under the
such duty upon the regular courts instead. The present Municipal Mayor I
jurisdiction of the regular courts.
structure is also intended to benefit these officials of Professor IV
lower rank, especially those residing outside Metro Although some positions of Grade 27 and above Project Manager III
Manila, charged with crimes related to their office, who are stated by name in Section 4 a., the position of Prosecutor II
can ill-afford the expenses of a trial in Metro Manila. As Municipal Mayor is not among them. Nevertheless, Provincial Agrarian Reform Adjudicator
the Explanatory Note of House Bill No. 9825[30] states: Congress provided a catchall in Section 4 a. (5), thus: Public Attorney IV
Regional Treasurer
One is given the impression that only lowly government (5) All other national and local officials classified as Register of Deeds IV
workers or the so-called small fry are expediently tried Grade 27 and higher under the Compensation and Sangguniang Panlalawigan Member
and convicted by the Sandiganbayan. The reason for Position Classification Act of 1989. Sangguniang Panlungsod Member II
this is that at present, the Sandiganbayanhas the Scientist II
exclusive and original jurisdiction over graft cases Solicitor II
Such a catchall is necessary, for it would be impractical,
committed by all officials and employees of the Special Prosecution Officer II
if not impossible, for Congress to list down each
government, irrespective of rank and position, from the State Counsel IV
position created or will be created pertaining to Grades
lowest-paid janitor to the highly-placed government SUC President I
27 and above.
official. This jurisdiction of the Sandiganbayan must be SUC Vice-President III
modified in such a way that only those occupying high At present, Volume III of the 1997 edition of the
positions in the government and the military (the big Index of Occupational Services, Position Titles and Earlier, in the 1989 version of the same Index, the
fishes) may fall under its exclusive and original Salary Grades, which was prepared by the Department Municipal Mayor was also assigned a Salary Grade of
jurisdiction. In this was, the Sandiganbayan can devote of Budget and Management (DBM) pursuant to 27. It appears, therefore, that petitioner Mayor comes
its time to big time cases involving the big fishes in the Republic Act No. 6758,[31] otherwise known as the within the exclusive and original jurisdiction of the
government. The regular courts will be vested with the Compensation and Position Classification Act of 1989, Sandiganbayan.
jurisdiction of cases involving less-ranking officials lists the following positions under Salary Grade 27, Petitioners, however, claim that at the time of the
(those occupying positions corresponding to salary including the position of Municipal Mayor I: commission of the alleged crime on or about 2
grade twenty-seven (27) and below and PNP members
Assistant Commissioner of Internal Revenue September 1992, Mayor Rodrigo, the highest public
with a rank lower than Senior Superintendent. This set-
Assistant Regional Cabinet Secretary ranking public official impleaded in this case, was
up will prove more convenient to people in the
Assistant Regional Executive Secretary receiving a monthly salary of P10,441.00. Such amount
provinces. They will no longer have to travel to Manila
Board Member I 6758 is supposedly equivalent to a fourth step
to file their complaint or to defend themselves. They
Chairman, Police Regional Appellate Board increment in Grade 24 under the Salary Schedule
can already file their complaint or their defense before prescribed in Section 7 of R.A. No. 6758: *
Chief of Mission, Class II

LOCGOV CASES | MEETING 12 Page 13


SEC. 7. Salary Schedule. The Department of Budget and substantive differences in duties and responsibilities, President of the 32
Management is hereby directed to implement the and qualification requirements of the positions." Senate
Salary Schedule prescribed below: Speaker of the 32
To give life to this policy, as well as the
House of
constitutional prescription to (take) into account the
Salary Representatives
nature of the responsibilities pertaining to, and the
Schedu Chief Justice of 32
qualifications required for the positions of government
le the Supreme
officials and employees, Congress adopted the scheme
Grade 1st 2nd 3rd 4th 5th 6th 7th 8th Court
employed in P.D. No. 985 for classifying positions with
Xxx Senator 31
comparable responsibilities and qualifications for the
24 10,13 10,23 10,33 10,44 10,64 10,65 10,76 10,86 purpose of according such positions similar Member of the 31
5 6 9 2 6 2 8 6 salaries. This scheme is known as the Grade, defined in House of
Xxx P.D. No. 985 as: Representatives
Associate Justices 31
of the Supreme
Petitioners conclude that Mayor Rodrigo, at the time of Includ[ing] all classes of positions which, although
Court
the commission of the alleged crime, was occupying a different with respect to kind or subject matter of
Chairman of a
Grade 24 position and, thus, not within the work, are sufficiently equivalent as to level of difficulty
Constitutional 31
Sandiganbayans original and exclusive jurisdiction, as and responsibilities and level of qualification
Commissionunder
defined in Section 2 of R.A. No. 7975. requirements of the work to warrant the inclusion of
Article IX, 1987
such classes of positions within one range of basic
Constitution
This is a simplistic, and altogether incorrect, compensation.[33]
interpretation of the law. Member of a
Constitutional 30
The Grade is therefore a means of grouping
Section 5, Article IX-C of the Constitution provides Commission
positions sufficiently equivalent as to level of difficulty
that: under Article IX,
and responsibilities and level of qualification
1987 Constitution
requirements of the work so that they may be lumped
The Congress shall provide for the standardization of together in one range of basic compensation.
compensation of government officials and employees,
including those in government-owned or controlled Thus, Congress, under Section 8 of R.A. No. 6758, The Department of Budget and Management is hereby
corporation with original charters, taking into account fixed the Salary Grades[34] of officials holding authorized to determine the officials who are of
the nature of the responsibilities pertaining to, and the constitutional positions, as follows: equivalent rank to the foregoing Officials, where
qualifications required for their positions. applicable, and may be assigned the same Salary
SEC. 8. Salaries of Constitutional Officials and their Grades based on the following guidelines:
This provision is not unique to the 1987 Equivalent. Pursuant to Section 17, Article XVIII of the
Constitution. The 1973 Constitution, in Section 6, Constitution, the salary of the following officials shall xxx
Article XII thereof, contains a very similar provision be in accordance with the Salary Grades indicated
pursuant to which then President Marcos, in the hereunder: As indicated in the aforequoted section, Congress
exercise of his legislative powers, issued Presidential delegated the rest of this tedious task (of fixing Salary
Decree No. 985.[32] Grades) to the DBM, subject to the standards contained
Salary
in R.A. No. 6758, by authorizing the DBM to determine
However, with the advent of the new Grade
the officials who are of equivalent rank to the foregoing
Constitution, and in compliance therewith, Congress officials, where applicable, and to assign them the same
enacted R.A. No. 6758. Section 2 thereof declares it the President of the 33 Salary Grades subject to a set of guidelines found in
policy of the State to provide equal pay for substantially Philippines said section.[35]
equal work and to base differences in pay upon Vice-President of 32
the Philippines For positions below those mentioned under
Section 8, Section 9 directs the DBM to prepare the
LOCGOV CASES | MEETING 12 Page 14
Index of Occupational Services guided by (a) the For For ignore the constitutional and statutory policies behind
Benchmark Position prescribed in Section 9,[36] and (b) Provinces/CitiesMunicipalities said law.
the following factors: Special 100%
Cities Petitioner mayors position having been classified
(1) the education and experience required to 1stClass 100% 90% as Grade 27 in accordance with R.A. No. 6758, and
perform the duties and responsibilities of the 2ndClass 95% 85% having been charged with violation of Section 3 (e) of
position; 3rdClass 90% 80% R.A. No. 3019, petitioner is subject to the jurisdiction of
4thClass 85% 75% the Sandiganbayan, as defined by Section 4 a. of P.D.
(2) nature and complexity of the work to be No. 1606, as amended by Section 2 of R.A. No. 7975. By
performed; 5thClass 80% 70%
6thClass 75% 65% virtue of the same Section 4 a., as amended, his co-
(3) the kind of supervision received; accused are also subject to the Anti-Graft Courts
jurisdiction.
(4) mental and/or physical strain required in the
completion of the work; SEC. 19. Funding Source. The funding sources for the WHEREFORE, the petition is
amounts necessary to implement this Act shall be as hereby DISMISSED and the Temporary Restraining
(5) nature and extent of internal and external follows: Order issued by this Court on 28 August 1996 LIFTED.
relationships;
SO ORDERED.
(6) kind of supervision exercised; (a) x x x
Davide, Jr., C.J., (Chairman), Melo, and Pardo,
(7) decision-making responsibility; (b) For local government units, the amount shall be JJ., concur.
(8) responsibility for accuracy of records and charged against their respective funds. Local
reports; government units which do not have adequate or
sufficient funds shall only partially implement the
(9) accountability for funds, properties and established rates as may be approved by the Joint
equipment; and Commission under Section 8 of Presidential Decree No.
1188: Provided, That any partial implementation shall
(10) hardship, hazard and personal risk involved in
be uniform and proportionate for all positions in each
the job.
local government unit: Provided further, That savings
Pursuant to such authority, the DBM drafted the from National Assistance to Local Government Units
1989 Index of Occupational Services, Position Titles and (NALGU) funds may be used for this purpose.
Salary Grades, later revised in 1997. In both versions,
the position of Municipal Mayor was assigned a Salary x x x. (Underscoring supplied.)
Grade 27.
Thus, a local government officials actual salary
That petitioner received a salary less than that
may be less than what the Salary Schedule under
prescribed for such Grade is explained by Sections 10
Section 7 prescribes, depending on the class and
and 19 (b) of R.A. No. 6758, which respectively provide:
financial capability of his or her respective local
government unit. This circumstance, however, has no
SEC. 10. Local Government Units (LGUs). -- The rates of bearing on such officials Grade. As the foregoing
pay in LGUs shall be determined on the basis of the discussion shows, on officials salary is determined by
class and financial capability of each the Grade accorded his position, andultimately by the
LGU: Provided, That such rates of pay shall not exceed nature of his position the level of difficulty and
the following percentages of the rates in the salary responsibilities and level of qualification requirements
schedule prescribed under Section 7 hereof: of the work. To give credence to petitioners argument
that Mayor Rodrigos salary determines his Grade would
be to misconstrue the provisions of R.A. No. 6758, and
LOCGOV CASES | MEETING 12 Page 15
[G.R. Nos. 122297-98. January 19, 2000] Diamante and this offense was committed in relation to The trial of both criminal cases before the
the office of the said public officers. Sandiganbayan has not begun.
CRESCENTE Y. LLORENTE, JR., petitioner,
vs. SANDIGANBAYAN and PEOPLE OF THE "CONTRARY TO LAW. On May 16, 1995, Congress enacted Republic Act No.
PHILIPPINES, respondents. 7975,[8] amending Section 4 of Presidential Decree No.
"Manila, August 6, 1993. 1606,[9] providing:
DECISION
(s/t) GUALBERTO J. DE LA LLANA "SEC. 4. Jurisdiction The Sandiganbayan shall exercise
PARDO, J.: "Special Prosecution Officer III"[4] original jurisdiction in cases involving:

The case before the Court is a special civil action On February 2, 1994, the three accused were arraigned "a. Violations of Republic Act No. 3019, as amended,
for certiorari[1] assailing the jurisdiction of the before the Sandiganbayan and pleaded not otherwise known as the Anti-Graft and Corrupt
Sandiganbayan over the criminal cases against then guilty. Practices Act, Republic Act 1379, and Chapter II, Section
municipal mayor Crescente Y. Llorente, Jr. for violations 2, Title VII of the Revised Penal Code, where one or
of Republic Act No. 3019, as amended. more of the principal accused are officials occupying
On March 31, 1995, the Office of the
the following positions in the government, whether in a
Ombudsman[5] filed with the Sandiganbayan another
permanent, acting or interim capacity, at the time of
Petitioner Crescente Y. Llorente, Jr. was elected information[6] against petitioner for violation of Section
the commission of the offense:
municipal mayor of Sindangan, Zamboanga in 1988 and 3 (f), Republic Act No. 3019, as amended, committed as
1992. On May 8, 1995, he was a candidate for follows:
congressman, second district of Zamboanga del Norte, "(1) Officials of the executive branch occupying the
and was duly elected. positions of regional director or higher, otherwise
"That on or about July 5, 1993, and for sometime
classified as Grade "27" and higher, of the
subsequent thereto, in Sindangan, Zamboanga del
Compensation and Position Classification Act of 1989
On August 6, 1993, the Office of the Special Norte, Philippines, and within the jurisdiction of this
(Republic Act No. 6758), specifically including:
Prosecutor[2] filed with the Sandiganbayan an Honorable Court, the above-named accused, a public
information[3] against Crescente Y. Llorente, Jr., officer, being then the Municipal Mayor of Sindangan,
municipal mayor of Sindangan, Zamboanga del Norte, Zamboanga del Norte, with grave abuse of authority, "(a) Provincial governors, vice governors, members of
P/Sgt. Juanito Caboverde and Jose Dy for violation of did then and there wilfully, unlawfully and criminally the sangguniang panlalawigan, and provincial
Section 3 (e), Republic Act No. 3019, as amended, refuse to issue Mayors permit to the ice plant and treasurers, assessors, engineers, and other provincial
committed as follows: resawmill/box factory of R. F. Diamante and family, department heads;
without sufficient justification, after due demand and
"That on or about June 12, 1989, in the Municipality of payment of license fees were made, said refusal to "(b) City mayors, vice mayors, members of
Sindangan, Zamboanga del Norte, and within the grant Mayors permit being not only personal but for the sangguniang panglungsod, city treasurers,
jurisdiction of this Honorable Court, accused Crescente the purpose of giving undue advantage to similar assessors, engineers, and other city department heads;
Y. Llorente, Jr., Municipal Mayor of Sindangan, businesses in town and as an act of discriminating
Zamboanga del Norte and P/Sgt. Juanito Cadoverde of against the interest of the complainant to the latters "(c) Officials of the diplomatic service occupying the
the defunct Integrated National Police and as such damage and prejudice. position of consul and higher;
public officers and the other accused Jose Dy, a private
individual, conspiring with each other and acting with "CONTRARY TO LAW. "(d) Philippine army and air force colonels, naval
evident bad faith, did then and there, willfully, captains, and all other officials of higher rank;
unlawfully and criminally seized (sic) 930 sawn "Manila, Philippines, March 31, 1995
knockdown wooden boxes owned by Godofredo M.
"(e) PNP chief superintendent and PNP officers of
Diamante without any search and seizure warrant and
"(s/t) DANIEL B. JOVACON, JR. higher rank;
without issuing any receipt of seizure thereby causing
"Special Prosecution Officer I"[7]
undue damage and injury to said Godofredo M.

LOCGOV CASES | MEETING 12 Page 16


"(f) City and provincial prosecutors and their assistants, transfer Criminal Case No. 19763 to the Regional Trial We have resolved this issue in recent cases ruling that
and officials and prosecutors in the Office of the Court, Sindangan, Zamboanga. the Sandiganbayan has jurisdiction over violations of
Ombudsman and special prosecutor; Republic Act No. 3019, as amended, against municipal
On the same date, petitioner filed with the mayors.[18]
"(g) Presidents, directors, or trustees, or managers of Sandiganbayan, First Division, a motion to refer
government-owned or controlled corporations, state Criminal Case No. 22655 to the Regional Trial Court, There is no merit to petitioners averment that the
universities or educational institutions of foundations. Sindangan, Zamboanga. salary received by a public official dictates his salary
grade. "On the contrary, it is the officials grade that
"(2) Members of Congress and officials thereof Petitioner averred that the enactment of Republic Act determines his or her salary, not the other way
classified as Grade "27" and up under the No. 7975 divested the Sandiganbayan of its jurisdiction around."[19] "To determine whether the official is within
Compensation and Position Classification Act of 1989; over criminal cases against municipal mayors for the exclusive jurisdiction of the Sandiganbayan,
violations of Republic Act No. 3019, as amended, who therefore, reference should be made to Republic Act
receive salary less than that corresponding to Grade 27, No. 6758 and the Index of Occupational Services,
"(3) Members of the judiciary without prejudice to the
pursuant to the Index of Occupational Services Position Titles and Salary Grades. An officials grade is
provisions of the Constitution;
prepared by the Department of Budget and not a matter of proof, but a matter of law which the
Management (DBM). court must take judicial notice."[20]
"(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of the
On September 7, 1995, the Sandiganbayan, First Section 444 (d) of the Local Government Code provides
Constitution; and
Division[11] denied the motion to refer Criminal Case No. that "the municipal mayor shall receive a minimum
22655 to the Regional Trial Court. On October 10, 1995, monthly compensation corresponding to Salary Grade
"(5) All other national and local officials classified as twenty-seven (27) as prescribed under Republic Act No.
the Sandiganbayan denied petitioners motion for
Grade "27" and higher under the Compensation and 6758 and the implementing guidelines issued pursuant
reconsideration.[12]
Position Classification Act of 1989. thereto." Additionally, both the 1989 and 1997 versions
of the Index of Occupational Services, Position Titles
On September 14, 1995, Sandiganbayan, Third
"b. Other offenses or felonies committed by the public and Salary Grades list the municipal mayor under Salary
Division[13] also denied the motion to transfer Criminal
officials and employees mentioned in subsection (a) of Grade 27.[21] Consequently, the cases against petitioner
Case No. 19763 to the Regional Trial Court.
this section in relation to their office. as municipal mayor for violations of Republic Act No.
3019, as amended, are within the exclusive jurisdiction
Hence, petitioner filed these petitions for certiorari.[14] of the Sandiganbayan.
"c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-A.
On December 27, 1995, the Court consolidated the two WHEREFORE, we hereby DISMISS the consolidated
cases.[15] petitions at bar, for lack of merit.
"In cases where none of the principal accused are
occupying positions corresponding to salary grade "27"
or higher, as prescribed in the said Republic Act No. On February 23, 1997, Congress enacted Republic Act No costs.
6758, or PNP officers occupying the rank of No. 8249, an act redefining the jurisdiction of
superintendent or higher, or their equivalent, exclusive Sandiganbayan.[16]
SO ORDERED.
jurisdiction thereof shall be vested in the proper
Regional Trial Court, Metropolitan Trial Court, On September 1, 1999, we gave due course to the
Davide, Jr., C. J., (Chairman), Puno,
Municipal Trial Court, and Municipal Circuit Trial Court, petitions.[17]
Kapunan, and Ynares-Santiago, JJ., concur.2
as the case may be, pursuant to their respective
jurisdiction as provided in Batas Pambansa Blg. The issue raised in these two cases is whether or not
129."[10] Republic Act No. 7975 divested the Sandiganbayan of
its jurisdiction over violations of Republic Act No. 3019,
On July 10, 1995, petitioner filed with the as amended, against municipal mayors.
Sandiganbayan, Third Division, a motion to dismiss or

LOCGOV CASES | MEETING 12 Page 17


EN BANC through its law department filed the required of a recall election, that is, during the second year of his
G.R. No. 123169 November 4, 1996 comment. Petitioner thereafter filed a reply. 3 term of office. Thus, subscribing to petitioner's
DANILO E. PARAS, petitioner, interpretation of the phrase regular local election to
vs. include the SK election will unduly circumscribe the
Petitioner's argument is simple and to the point. Citing
COMMISSION ON ELECTIONS, respondent. novel provision of the Local Government Code on
Section 74 (b) of Republic Act No. 7160, otherwise
RESOLUTION recall, a mode of removal of public officers by initiation
known as the Local Government Code, which states
that "no recall shall take place within one (1) year from of the people before the end of his term. And if the SK
FRANCISCO, J.:
the date of the official's assumption to office or one (1) election which is set by R.A No. 7808 to be held every
year immediately preceding a regular local election", three years from May 1996 were to be deemed within
Petitioner Danilo E. Paras is the incumbent Punong the purview of the phrase "regular local election", as
petitioner insists that the scheduled January 13, 1996
Barangay of Pula, Cabanatuan City who won during the erroneously insisted by petitioner, then no recall
recall election is now barred as the Sangguniang
last regular barangay election in 1994. A petition for his election can be conducted rendering inutile the recall
Kabataan (SK) election was set by Republic Act No.
recall as Punong Barangay was filed by the registered provision of the Local Government Code.
7808 on the first Monday of May 1996, and every three
voters of the barangay. Acting on the petition for recall,
years thereafter. In support thereof, petitioner
public respondent Commission on Elections (COMELEC)
cites Associated Labor Union v. Letrondo-Montejo, 237 In the interpretation of a statute, the Court should start
resolved to approve the petition, scheduled the
SCRA 621, where the Court considered the SK election with the assumption that the legislature intended to
petition signing on October 14, 1995, and set the recall
as a regular local election. Petitioner maintains that as enact an effective law, and the legislature is not
election on November 13,
the SK election is a regular local election, hence no presumed to have done a vain thing in the enactment
1995. 1 At least 29.30% of the registered voters signed
recall election can be had for barely four months of a statute. 5 An interpretation should, if possible, be
the petition, well above the 25% requirement provided
separate the SK election from the recall election. We do avoided under which a statute or provision being
by law. The COMELEC, however, deferred the recall
not agree. construed is defeated, or as otherwise expressed,
election in view of petitioner's opposition. On
nullified, destroyed, emasculated, repealed, explained
December 6, 1995, the COMELEC set anew the recall
The subject provision of the Local Government Code away, or rendered insignificant, meaningless,
election, this time on December 16, 1995. To prevent
provides: inoperative or nugatory. 6
the holding of the recall election, petitioner filed before
the Regional Trial Court of Cabanatuan City a petition
for injunction, docketed as SP Civil Action No. 2254-AF, Sec. 74. Limitations on Recall. — (a) Any elective local It is likewise a basic precept in statutory construction
with the trial court issuing a temporary restraining official may be the subject of a recall election only once that a statute should be interpreted in harmony with
order. After conducting a summary hearing, the trial during his term of office for loss of confidence. the Constitution. 7 Thus, the interpretation of Section
court lifted the restraining order, dismissed the petition 74 of the Local Government Code, specifically
and required petitioner and his counsel to explain why paragraph (b) thereof, should not be in conflict with the
(b) No recall shall take place within one (1) year from
they should not be cited for contempt for Constitutional mandate of Section 3 of Article X of the
the date of the official's assumption to office or one (1)
misrepresenting that the barangay recall election was Constitution to "enact a local government code which
year immediately preceding a regular local election.
without COMELEC approval. 2 shall provide for a more responsive and accountable
local government structure instituted through a system
[Emphasis added] of decentralization with effective mechanism of recall,
In a resolution dated January 5, 1996, the COMELEC, for
initiative, and referendum . . . ."
the third time, re-scheduled the recall election an It is a rule in statutory construction that every part of
January 13, 1996; hence, the instant petition the statute must be interpreted with reference to the
for certiorari with urgent prayer for injunction. On Moreover, petitioner's too literal interpretation of the
context,i.e., that every part of the statute must be law leads to absurdity which we cannot countenance.
January 12, 1996, the Court issued a temporary considered together with the other parts, and kept
restraining order and required the Office of the Thus, in a case, the Court made the following
subservient to the general intent of the whole admonition:
Solicitor General, in behalf of public respondent, to enactment. 4 The evident intent of Section 74 is to
comment on the petition. In view of the Office of the subject an elective local official to recall election once
Solicitor General's manifestation maintaining an We admonish against a too-literal reading of the law as
during his term of office. Paragraph (b) construed
opinion adverse to that of the COMELEC, the latter this is apt to constrict rather than fulfill its purpose and
together with paragraph (a) merely designates the
defeat the intention of its authors. That intention is
period when such elective local official may be subject
LOCGOV CASES | MEETING 12 Page 18
usually found not in "the letter that killeth but in the
spirit that vivifieth". . . 8

The spirit, rather than the letter of a law determines its


construction; hence, a statute, as in this case, must be
read according to its spirit and intent.

Finally, recall election is potentially disruptive of the


normal working of the local government unit
necessitating additional expenses, hence the
prohibition against the conduct of recall election one
year immediately preceding theregular local election.
The proscription is due to the proximity of the next
regular election for the office of the local elective
official concerned. The electorate could choose the
official's replacement in the said election who certainly
has a longer tenure in office than a successor elected
through a recall election. It would, therefore, be more
in keeping with the intent of the recall provision of the
Code to construe regular local election as one referring
to an election where the office held by the local
elective official sought to be recalled will be contested
and be filled by the electorate.

Nevertheless, recall at this time is no longer possible


because of the limitation stated under Section 74 (b) of
the Code considering that the next regular election
involving the barangay office concerned is barely seven
(7) months away, the same having been scheduled on
May 1997. 9

ACCORDINGLY, the petition is hereby dismissed for


having become moot and academic. The temporary
restraining order issued by the Court on January 12,
1996, enjoining the recall election should be as it is
hereby made permanent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo,


Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima,
Jr., Panganiban and Torres, Jr., JJ., concur.

LOCGOV CASES | MEETING 12 Page 19


G.R. No. 126576 March 5, 1997 Cagayan and then to the main office of COMELEC in Government Code of 1991 which provides that "no
Manila, for approval. recall shall take place within one (1) year . . .
MAYOR RICARDO M. ANGOBUNG, petitioner, immediately preceding a regular local election," we
vs. Acting on the petition, Deputy Executive Director for ruled that for the time bar to apply, the approaching
COMMISSION ON ELECTIONS EN BANC, and ATTY. Operations Pio Jose Joson submitted to the regular local election must be one where the position
AURORA S. DE ALBAN, respondents. COMELEC En Banc, a Memorandum 4 dated October 8, of the official to be recalled, is to be actually contested
1996 recommending approval of the petition for recall and filled by the electorate. Thus, in the instant case
filed by private respondent and its signing by other where the time bar is being invoked by petitioner
qualified voters in order to garner at least 25% of the mayor in view of the approaching Barangay Elections in
total number of registered voters as required by May 1997, there can be no application of the one year
HERMOSISIMA, JR., J.: bar, hence no invalidity may be ascribed to Resolution
Section 69(d) of the Local Government Code of 1991.
No. 96-2951 on this ground.
Before us on certiorari is a petition seeking to annul
In turn acting on the abovementioned Memorandum of
and set aside Resolution No. 96-2951 1 dated October We, however, find petitioner's second ground to be
Deputy Executive Director Joson, the COMELEC en
15, 1996 issued by public respondent Commission on impressed with merit.
bancissued the herein assailed Resolution No. 96-2951.
Elections (COMELEC) which (1) approved the Petition
for Recall filed and signed by only one registered voter
Petitioner now attacks the aforementioned resolution Before the enactment of the 1991 Local Government
— herein private respondent Ma. Aurora Siccuan de
as being unconstitutional and therefore invalid, on two Code, the recall of public officials voted for in popular
Alban, against petitioner — incumbent Mayor Ricardo
main grounds: (1) that the resolution approved the elections, was governed by Sections 54 to 59 of Batas
Angobung; (2) set the further signing of said petition by
Petition for Recall albeit same was signed by just one Pambansa Blg. 337, otherwise known as the Local
the rest of the registered voters of Tumauini, Isabela on
person in violation of the statutory 25% minimum Government Code of 1983. Pursuant to Section 59
November 9, 1996; and (3) in case the said petition is
requirement as to the number of signatures supporting thereof, which states that "the Commission on
signed by at least 25% of the total number of registered
any petition for recall; and (2) that the resolution Elections shall conduct and supervise the process of
votes in Tumauini, Isabela, scheduled the recall election
scheduled the recall election within one (1) year from and election on recall . . . and, in pursuance thereof,
on December 2, 1996.
the May 12, 1997 Barangay Elections. promulgate the necessary rules and regulations," the
COMELEC promulgated Resolution No. 2272 Sections 4
On October 25, 1996, this court issued a Temporary and 5 of which provide as follows:
Restraining Order 2 enjoining public respondent In at least three (3) urgent motions, private respondent
COMELEC from implementing and enforcing Resolution has sought the lifting of the Temporary Restraining
Order issued last October 25, 1996 on the twin grounds Sec. 4. How instituted. — The recall of an elective
No. 96-2951.
(1) that the issue of the one-year bar on recall elections provincial, city or municipal official shall be commenced
has been resolved in the case of Paras v. COMELEC 5, by the filing of a duly verified notice of recall containing
The facts of this case are not disputed. the address and precinct number of the voter filing the
promulgated on November 4, 1996; and (2) that the
procedure prescribed by Resolution No. 96-2951 notice, and the name of the official sought to be
Petitioner won as the duly elected Mayor of the involving petition signing upon initiation of even just recalled, his position, and the ground(s) for the recall.
Municipality of Tumauini, Isabela in the local elections one person, is no different from that provided for in Each notice shall refer to only one official.
of 1995. He garnered 55% of all the votes cast. Private COMELEC Resolution No. 2272 which was upheld as
respondent de Alban was also a candidate in said constitutional in the 1991 cases of Sanchez, et The notice shall be filed in triplicate with the local
elections. al. v. COMELEC6 and Evardone v. COMELEC 7. Election Registrar if the recall involves a city or
municipal official, or with the Provincial Election
Sometime in early September, 1996, private Private respondent is correct in saying that in the light Supervisor if it involves a provincial official, one copy of
respondent filed with the Local Election Registrar of of our pronouncement in Paras v. COMELEC 8, the recall which shall be posted upon receipt thereof on the
Tumauini, Isabela, a Petition for Recall 3 against election scheduled on December 2, 1996 in the instant bulletin board in the city/municipal hall.
petitioner. On September 12, 1996, petitioner received case cannot be said to be barred by the May 12, 1997
a copy of this petition. Subsequently said petition was Barangay Elections. In construing the meaning of the If the recall involves a provincial official, two additional
forwarded to the Regional Office in Tuguegarao, term, "regular local election" in Section 74 of the Local copies of the notice shall also be furnished by the voter
LOCGOV CASES | MEETING 12 Page 20
filing the notice to the Election Registrar of each city decrees, executive orders, proclamations, letters of We therefore rule that Resolution No. 2272
and municipality in the province, one copy of which instructions and other executive issuances not promulgated by respondent COMELEC is valid and
shall be posted upon receipt thereof on the bulletin inconsistent with this Constitution shall remain constitutional. Consequently, the respondent COMELEC
board in the city/municipal hall. operative until amended, repealed, or revoked. had the authority to approve the petition for recall and
set the date for the signing of said petition. 14
In every case, the voter filing the notice of recall shall Considering that the present local government code
furnish a copy thereof to the official sought to be (BP 337) is still in effect, respondent COMELEC's In Sanchez and Evardone, the COMELEC-prescribed
recalled, the Commission on Elections in Manila and promulgation of Resolution No. 2272 is therefore valid procedure of (1) allowing the recall petition to be filed
the Election Records and Statistics Department of the and constitutional, the same having been issued by at least one person or by less than 25% of the total
Commission. pursuant to Sec. 59 of BP 337. It reads: number of registered voters and then (2) inviting voters
to sign said petition on a date set for that purpose, was
Sec. 5. Schedule and place of signing of the petition. — Sec. 59. Supervision by the Commission on Elections. — never put to issue. As this is the crux of the present
The Election Registrar shall submit to the Commission The Commission on Elections shall conduct and constitutional challenge, the proper time has come for
on Elections, not later than ten days from filing of the supervise the process of and election on recall . . . and, this court to issue a definitive ruling on the matter.
notice of recall, the schedule of the signing of the in pursuance thereof, promulgate the necessary rules
petition to recall for approval and funding . . . 9 and regulations. 12 Apropos for starters is the following chronicle of the
evolution of the mechanism of recall as a mode of
In the case of Sanchez v. COMELEC 10, petitioners We reiterated the foregoing ruling in the case removing a public officer by direct action of the people,
therein contended that the aforegoing "Resolution No. of Evardone v. essayed in the case of Garcia v. COMELEC 15:
2272 is unconstitutional there being no legislative COMELEC 13 in this wise:
enactment yet on [the] mechanism of recall as Recall is a mode of removal of a public officer by the
mandated under Sec. 3, Art. X of the Constitution". 11 It Article XVIII, Section 3 of the 1987 Constitution people before the end of his term of office. The
is true, as private respondent asseverates, that we expressly provides that all existing laws not inconsistent people's prerogative to remove a public officer is an
upheld the constitutionality of Resolution No. 2272, but with the 1987 Constitution shall remain operative, until incident of their sovereign power and in the absence of
not because we found nothing constitutionally infirm amended, repealed or revoked. Republic Act No. 7160 constitutional restraint, the power is implied in all
about the procedure of allowing the initiatory recall providing for the Local Government Code of 1991, governmental operations. Such power has been held to
petition to be filed by only one person. The issue approved by the President on 10 October 1991, be indispensable for the proper administration of
in Sanchez was not this questioned procedure but the specifically repeals B.P. Blg. 337 as provided in Sec. 534, public affairs. Not undeservedly, it is frequently
legal basis for the exercise by the COMELEC of its rule- Title Four of said Act. But the Local Government Code described as a fundamental right of the people in a
making power in the alleged absence of a grant of such of 1991 will take effect only on 1 January 1992 and representative democracy.
power by an enabling statute on recall. Thus we ruled: therefore the old Local Government Code (B.P. Blg.
337) is still the law applicable to the present case. Recall as a mode of removal of elective local officials
While it is true that Sec. 3, Art. X of the Constitution made its maiden appearance in section 2 of Article XI
mandates the Congress to enact a local government xxx xxx xxx entitled Local Government, viz.:
code providing among others for an effective
mechanism of recall, nothing in said provision could be Sec. 2. The Batasang Pambansa shall enact a local
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for
inferred the repeal of BP 337, the local government government code which may not thereafter be
the mechanism for recall of local elective officials.
code existing prior to the adoption of the 1987 amended except by a majority vote of all its Members,
Section 59 expressly authorizes the respondent
Constitution. Sec. 3, Art. X of the Constitution merely defining a more responsive and accountable local
COMELEC to conduct and supervise the process of and
provides that the local government code to be enacted government structure with an effective system of recall
election on recall and in the exercise of such powers,
by Congress shall be "more responsive" than the one ...
promulgate the necessary rules and regulations. . . .
existing at present. Until such time that a more
Thus, pursuant to the rule-making power vested in
responsive and effective local government code is
respondent COMELEC, it promulgated Resolution No. The Batasang Pambansa then enacted BP 337 entitled,
enacted, the present code shall remain in full force and
2272 on 23 May 1990. "The Local Government Code of 1983. Section 54 of its
effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws,
Chapter 3 provided only one mode of initiating the
LOCGOV CASES | MEETING 12 Page 21
recall elections of local election officials, i.e., by petition petition must be filed, not by one person only, but by at reveals the vigilance of lawmakers against the abuse of
of at least twenty-five percent (25%) of the total least 25% of the total number of registered voters. This the power of recall. For instance, the Supreme Court of
number of registered voters in the local government is understandable, since the signing of the petition is Illinois held in the case of In Re Bower 19 that:
unit concerned . . . . statutorily required to be undertaken "before the
election registrar or his representative, and in the [t]he only logical reason which we can ascribe for
Our legal history does not reveal any instance when this presence of a representative of the official sought to be requiring the electors to wait one year before
power of recall as provided by BP 337 was exercised by recalled, and in a public place in the . . . municipality . . . petitioning for a recall election is to prevent premature
our people. " 17. Hence, while the initiatory recall petition may not action on their part in voting to remove a newly elected
yet contain the signatures of at least 25% of the total official before having had sufficient time to evaluate
number of registered voters, the petition must contain the soundness of his political policies and decisions. We
In February, 1986, however, our people more than
the names of at least 25% of the total number of view the statutory provision requiring the number of
exercised their right of recall for they resorted to
registered voters in whose behalf only one person may petition signers to equal at least 45% of the total votes
revolution and they booted out of office the highest
sign the petition in the meantime. case in the last general election for mayor as a further
elective officials of the land. The successful use of
people power to remove public officials who have attempt to insure that an official will not have to
forfeited the trust of the electorate led to its firm We cannot sanction the procedure of the filing of the defend his policies against frivolous attacks launched by
institutionalization of the 1987 Constitution. Its Article recall petition by a number of people less than the a small percentage of disenchanted electors. 20
XIII expressly recognized the Role and Rights of People's foregoing 25% statutory requirement, much less, the
Organizations . . . . filing thereof by just one person, as in the instant case, Along the same lines, the Supreme Court of Colorado
since this is indubitably violative of clear and held in the case of Bernzen, v. City of Boulder 21 that:
categorical provisions of subsisting law.
Section 3 of its Article X also reiterated the mandate for
Congress to enact a local government code which "shall [t]he framers, by requiring that a recall petition contain
provide for a more responsive and accountable local Our legislators did not peg the voter requirement at the signatures of at least 25% of all votes cast in the last
government structure instituted through a system of 25% out of caprice or in a vacuum. They knew that this election for all candidates for the position which the
decentralization with effective mechanisms of recall, is the requirement under a majority of the constitutions person sought to be recalled occupies, assured that a
initiative and referendum . . . . In response to this and recall statutes in various American states to the recall election will not be held in response to the
constitutional call, Congress enacted R.A. 7160, same extent that they were aware of the rationale wishes of a small and unrepresentative minority.
otherwise known as the Local Government Code of therefor. While recall was intended to be an effective However, once at least 25% of the electorate have
1991, which took effect on January 1, 1992." 16 and speedy remedy to remove an official who is not expressed their dissatisfaction, the constitution
giving satisfaction to the electorate regardless of reserves the recall power to the will of the
whether or not he is discharging his full duty to the best electorate. 22
Section 69 (d) of the Local Government Code of 1991
of his ability and as his conscience dictates 18 it is a
expressly provides that "recall of any elective . . .
power granted to the people who, in concert, desire to
municipal . . . official may also be validly initiated upon And in the case of Wallace v. Tripp 23, the Supreme
change their leaders for reasons only they, as a
petition of at least twenty-five percent (25%) of the Court of Michigan echoed the foregoing posturings in
collective, can justify. In other words, recall must be
total number of registered voters in the local this wise:
pursued by the people, not just by one disgruntled
government unit concerned during the election in
loser in the elections or a small percentage of
which the local official sought to be recalled was Much of what has been said to justify a limit upon recall
disenchanted electors. Otherwise, its purposes as a
elected". The law is plain and unequivocal as to what clearly not provided or contemplated by the
direct remedy of the people shall be defeated by the ill
initiates recall proceedings: only a petition of at least Constitution has revealed fears about an irresponsible
motives of a few among them whose selfish resort to
25% of the total number of registered voters, may electorate . . . . A much cited Nebraska case pertaining
recall would destabilize the community and seriously
validly initiate recall proceedings. We take careful note to a Nebraska recall statute provides some answers
disrupt the running of government.
of the phrase, "petition of at least twenty-five percent which are equally applicable to the Michigan
(25%)" and point out that the law does not state that constitutional right of recall:
the petition must be signed by at least 25% of the A scrutiny of the rationale underlying the time bar
registered voters; rather, the petition must be "of" or provisions and the percentage of minimum voter
requirement in American recall statutes, unmistakably . . . Doubtless the provision requiring 30 per cent of the
by, at least 25% of the registered voters, i.e., the
electors to sign the petition before the council [is]
LOCGOV CASES | MEETING 12 Page 22
compelled to act was designed to avoid such a circumvention of the explicit 25% minimum voter
contingency. The Legislature apparently assumed that requirement in the initiation of the recall process.
nearly one-third of the electorate would not entail
upon the taxpayers the cost of an election unless the WHEREFORE, premises considered, the PETITION
charges made approved themselves to their FOR CERTIORARI is hereby GRANTED. COMELEC
understanding and they were seriously dissatisfied with Resolution No. 96-2951 is hereby DECLARED NULL and
the services of the incumbent of the office. 24 VOID and accordingly SET ASIDE.

In the instant case, this court is confronted with a The RESTRAINING ORDER heretofore issued is hereby
procedure that is unabashedly repugnant to the made permanent.
applicable law and no less such to the spirit underlying
that law. Private respondent who is a lawyer, knows
Costs against private respondent.
that Section 69 (d) of the Local Government Code
plainly provides that recall is validly initiated by a
petition of 25% of the total number of registered SO ORDERED.
voters. Notwithstanding such awareness, private
respondent proceeded to file the petition for recall Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero,
with only herself as the filer and initiator. She claims in Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
her petition that she has, together with many others in Francisco, Panganiban and Torres, Jr., JJ., concur.
Tumauini, Isabela, lost confidence in the leadership of
petitioner. But the petition does not bear the names of
all these other citizens of Tumauini who have
reportedly also become anxious to oust petitioner from
the post of mayor. There is no doubt that private
respondent is truly earnest in her cause, and the very
fact that she affixed her name in the petition shows
that she claims responsibility for the seeming affront to
petitioner's continuance in office. But the same cannot
be said of all the other people whom private
respondent claims to have sentiments similar to hers.
While the people are vested with the power to recall
their elected officials, the same power is accompanied
by the concomitant responsibility to see through all the
consequences of the exercise of such power, including
rising above anonymity, confronting the official sought
to be recalled, his family, his friends, and his
supporters, and seeing the recall election to its ultimate
end. The procedure of allowing just one person to file
the initiatory recall petition and then setting a date for
the signing of the petition, which amounts to inviting
and courting the public which may have not, in the first
place, even entertained any displeasure in the
performance of the official sought to be recalled, is not
only violative of statutory law but also tainted with an
attempt to go around the law. We can not and must
not, under any and all circumstances, countenance a
LOCGOV CASES | MEETING 12 Page 23
[G.R. No. 140560. May 4, 2000] Sometime during the second week of May 1999, the prohibited period; (4) the election case,[2] filed by
chairs of several barangays in Pasay City gathered to Wenceslao Trinidad in this Court, seeking the
JOVITO O. CLAUDIO, petitioner, vs. COMMISSION ON discuss the possibility of filing a petition for recall annulment of the proclamation of petitioner Claudio as
ELECTIONS, DEPARTMENT OF BUDGET AND against Mayor Claudio for loss of confidence. On May mayor of Pasay City, should first be decided before
MANAGEMENT, COMMISSION ON AUDIT and 19, 1999, at the residence of barangay chair Benjamin recall proceedings against petitioner could be filed; and
RICHARD ADVINCULA, respondents. Lim, Jr. in Barangay 11, Zone 4, Pasay City, several (5) the recall resolution failed to obtain the majority of
barangay chairs formed an ad hoc committee for the all the members of the PRA, considering that 10 were
purpose of convening the PRA. Richard Advincula, actually double entries, 14 were not duly accredited
[G.R. No. 140714. May 4, 2000]
private respondent in G.R. No. 140560 and petitioner in members of the barangays, 40 sangguniang kabataan
G.R. No. 140714, was designated chair. officials had withdrawn their support, and 60 barangay
PREPARATORY RECALL ASSEMBLY OF PASAY CITY, chairs executed affidavits of retraction. Slx
herein represented by its Chairman, RICHARD
On May 29, 1999, 1,073 members of the PRA composed
ADVINCULA, petitioner, vs. THE COMMISSION ON
of barangay chairs, kagawads, and sangguniang In its resolution of October 18, 1999, the COMELEC
ELECTIONS, DEPARTMENT OF BUDGET AND
kabataan chairs of Pasay City, adopted Resolution No. granted the petition for recall and dismissed the
MANAGEMENT, COMMISSION ON AUDIT and HON.
01, S-1999, entitled RESOLUTION TO INITIATE THE oppositions against it. On the issue of whether the PRA
JOVITO O. CLAUDIO, respondents.
RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY was constituted by a majority of its members, the
CITY FOR LOSS OF CONFIDENCE. In a letter dated June COMELEC held that the 1,073 members who attended
DECISION 29, 1999, Advincula, as chair of the PRA, invited the the May 29, 1999 meeting were more than necessary
Mayor, Vice-Mayor, Station Commander, and thirteen to constitute the PRA, considering that its records
MENDOZA, J.: Calrky (13) Councilors of Pasay City to witness the formal showed the total membership of the PRA was 1,790,
submission to the Office of the Election Officer on July while the statistics of the Department of Interior and
These are petitions arising from the proceedings 2, 1999 of the petition for recall. Mesm Local Government (DILG) showed that the total
initiated by the Preparatory Recall Assembly of Pasay membership of the PRA was 1,876. In either case, since
City (PRA) in the Commission on Elections in E.M. No. As scheduled, the petition for recall was filed on July 2, only a majority is required to constitute the PRA,
99-005 entitled IN THE MATTER OF THE PREPARATORY 1999, accompanied by an affidavit of service of the clearly, a majority had been obtained in support of the
RECALL ASSEMBLY RESOLUTION NO. 01, S-1999 petition on the Office of the City Mayor. Pursuant to recall resolution. Based on the verification made by
ADOPTED ON 29 MAY 1999 FOR THE RECALL OF the rules of the COMELEC, copies of the petition were election officer Ligaya Salayon, the COMELEC found the
MAYOR JOVITO CLAUDIO OF PASAY CITY. G.R. No. posted on the bulletin boards of the local COMELEC signatures of 958 members of the PRA sufficient. On
140560 is a petition for certiorari and prohibition, office, the City Hall, the Police Department, the public whether the pendency of the case questioning the
seeking the nullification of the resolution,[1] dated market at Libertad St. and Taft Avenue, and at the proclamation of petitioner was a prejudicial question
October 18, 1999, of the COMELEC giving due course to entrance of the Sta. Clara Church on P. Burgos St., all in which must first be decided before any recall election
the petition for the recall of petitioner Jovito O. Claudio Pasay City. Subsequently, a verification of the could be held, the COMELEC ruled that it was not and
as mayor of Pasay City. On the other hand, G.R. No. authenticity of the signatures on the resolution was that petitioner was merely using the pendency of the
140714 is a petition for mandamus filed by the PRA, conducted by Ligaya Salayon, the election officer for case to delay the recall proceedings. Finally, on
represented by its Chair, Richard Advincula, to compel Pasay City designated by the COMELEC. whether the petition for recall violated the bar on recall
the COMELEC to set the date for the holding of recall within one year from the elective official's assumption
elections in Pasay City pursuant to the aforecited of office, the COMELEC ruled in the negative, holding
Oppositions to the petition were filed by petitioner
resolution of the COMELEC. that recall is a process which starts with the filing of the
Jovito O. Claudio, Rev. Ronald Langub, and Roberto L.
petition for recall. Since the petition was filed on July 2,
Angeles, alleging procedural and substantive defects in
The facts are as follows: 1999, exactly one year and a day after petitioner
the petition, to wit: (1) the signatures affixed to the
Claudio's assumption of office, it was held that the
resolution were actually meant to show attendance at
petition was filed on time.
Jovito O. Claudio, petitioner in G.R. No. 140560, was the PRA meeting; (2) most of the signatories were only
the duly elected mayor of Pasay City in the May 11, representatives of the parties concerned who were
1998 elections. He assumed office on July 1, 1998. sent there merely to observe the proceedings; (3) the Hence, these petitions. Oral arguments were held in
convening of the PRA took place within the one-year these cases in Baguio City on April 4, 2000, after which

LOCGOV CASES | MEETING 12 Page 24


the Court, by the vote of 8 to 6 of its (1) refers to the election itself by means of which voters
members,[3] resolved to dismiss the petition in G.R. No. decide whether they should retain their local official or
140560 for lack of showing that the COMELEC On Whether the Word "Recall" in Paragraph (b) of 74 elect his replacement. Several reasons can be cited in
committed a grave abuse of discretion. On the other of the Local Government Code Includes the Convening support of this conclusion.
hand, the Court unanimously dismissed the petition in of the Preparatory Recall Assembly and the Filing by it
G.R. No. 140714 on the ground that the issue raised of a Recall Resolution First, 74 deals with restrictions on the power of recall. It
therein had become moot and academic. is in fact entitled "Limitations on Recall." On the other
Petitioner contends that the term "recall" in 74(b) hand, 69 provides that "the power of recall ...shall be
We now proceed to explain the grounds for our refers to a process, in contrast to the term "recall exercised by the registered voters of a local
resolution. election" found in 74(a), which obviously refers to an government unit to which the local elective official
election. He claims that "when several barangay belongs." Since the power vested on the electorate is
In its Resolution No. 3121, dated March 9, 2000, the chairmen met and convened on May 19, 1999 and not the power to initiate recall proceedings[6] but the
COMELEC set the date of the recall elections in Pasay unanimously resolved to initiate the recall, followed by power to elect an official into office, the limitations in
City on April 15, 2000. Consequently, the petition the taking of votes by the PRA on May 29, 1999 for the 74 cannot be deemed to apply to the entire recall
for mandamus in G.R. No. 140714 to compel the purpose of adopting a resolution to initiate the recall of proceedings. In other words, the term "recall" in
COMELEC to fix a date for the recall elections in Pasay Jovito Claudio as Mayor of Pasay City for loss of paragraph (b) refers only to the recall election,
City is no longer tenable. We are thus left with only confidence, the process of recall began" and, since May excluding the convening of the PRA and the filing of a
petitioner Claudio's action for certiorari and 29, 1999 was less than a year after he had assumed petition for recall with the COMELEC, or the gathering
prohibition. office, the PRA was illegally convened and all of the signatures of at least 25 % of the voters for a
proceedings held thereafter, including the filing of the petition for recall.
The bone of contention in this case is 74 of the Local recall petition on July 2, 1999, were null and void. Slxsc
Government Code (LCG)[4] which provides: Scslx Thus, there may be several PRAs held (as in the case of
The COMELEC, on the other hand, maintains that the Bataan Province in 1993) or petitions for recall filed
process of recall starts with the filing of the petition for with the COMELEC - there is no legal limit on the
Limitations on Recall. - (a) Any elective local official may
recall and ends with the conduct of the recall election, number of times such processes may be resorted to.
be the subject of a recall election only once during his
and that, since the petition for recall in this case was These are merely preliminary steps for the purpose of
term of office for loss of confidence.
filed on July 2, 1999, exactly one year and a day after initiating a recall. The limitations in 74 apply only to the
petitioner's assumption of office, the recall was validly exercise of the power of recall which is vested in the
(b) No recall shall take place within one (1) year from registered voters. It is this - and not merely, the
initiated outside the one-year prohibited period.
the date of the official's assumption to office or one (1) preliminary steps required to be taken to initiate a
year immediately preceding a regular local election. recall - which paragraph (b) of 74 seeks to limit by
Both petitioner Claudio and the COMELEC thus agree
providing that no recall shall take place within one year
that the term "recall" as used in 74 refers to a process.
As defined at the hearing of these cases on April 4, from the date of assumption of office of an elective
They disagree only as to when the process starts for
2000, the issues are: local official.
purposes of the one-year limitation in paragraph (b) of
74.
WHETHER, under Section 74 of the Local Government Indeed, this is the thrust of the ruling in Garcia v.
Code of 1991 (R.A. No. 7160) ... COMELEC[7] where two objections were raised against
We can agree that recall is a process which begins with
the legality of PRAs: (1) that even the power to initiate
the convening of the preparatory, recall assembly or
A. The word "recall" in paragraph (b) covers a process recall proceedings is the sole prerogative of the
the gathering of the signatures at least 25% of the
which includes the convening of the Preparatory Recall electorate which cannot be delegated to PRAs, and (2)
registered voters of a local government unit, and then
Assembly and its approval of the recall resolution. that by vesting this power in a PRA, the law in effect
proceeds to the filing of a recall resolution or petition
unconstitutionally authorizes it to shorten the term of
with the COMELEC, the verification of such resolution
B. The term "regular local election" in the last clause of office of incumbent elective local officials. Both
or petition, the fixing of the date of the recall election,
paragraph (b) includes the election period for that objections were dismissed on the ground that the
and the holding of the election on the scheduled
regular election or simply the date of such election. holding of a PRA is not the recall itself. With respect to
date.[5] However, as used in paragraph (b) of 74, "recall"
LOCGOV CASES | MEETING 12 Page 25
the first objection, it was held that it is the power to elective local official. Hence, in this case, as long as the always easy to determine when criticism of his
recall and not the power to initiate recall that the election is held outside the one-year period, the performance is politically motivated and when it is not.
Constitution gave to the people. With respect to the preliminary proceedings to initiate a recall can be held The only safeguard against the baneful and enervating
second objection, it was held that a recall resolution even before the end of the first year in office of a local effects of partisan politics is the good sense and self
"merely sets the stage for the official concerned before official. restraint of the people and its leaders against such
the tribunal of the people so he can justify why he shortcomings of our political system. A respite from
should be allowed to continue in office. [But until] the It cannot be argued that to allow recall proceedings to partisan politics may, have the incidental effect of
people render their sovereign judgment, the official be initiated before the official concerned has been in providing respite from partisanship, but that is not
concerned remains in office . . . ." Sdaadsc office for one-year would be to allow him to be judged really the purpose of the limitation on recall under the
without sufficient basis. As already stated, it is not the law. The limitation is only intended to provide a
If these preliminary proceedings do not produce a holding of PRA nor the adoption of recall resolutions sufficient basis for evaluating and judging the
decision by the electorate on whether the local official that produces a judgment on the performance of the performance of an elected local official.
concerned continues to enjoy the confidence of the official concerned; it is the vote of the electorate in the
people, then, the prohibition in paragraph (b) against Election that does. Therefore, as long as the recall In any event, it is argued that the judgments of PRAs
the holding of a recall, except one year after the election is not held before the official concerned has are not "as politically unassailable as recalls initiated
official's assumption of office, cannot apply to such completed one year in office, he will not be judged on directly by the people." Justice Puno cites the
proceedings. his performance prematurely.Rtcspped "embarrassing repudiation by the people of [Kaloocan
City's] Preparatory Recall Assembly" when, instead of
The second reason why the term "recall" in paragraph Third, to construe the term "recall" in paragraph (b) as ousting Mayor Rey Malonzo, they reelected him.
(b) refers to recall election is to be found in the purpose including the convening of the PRA for the purpose of
of the limitation itself. There are two limitations in discussing the performance in office of elective local Two points may be made against this argument.
paragraph (b) on the holding of recalls: (1) that no officials would be to unduly restrict the constitutional
recall shall take place within one year from the date of right of speech and of assembly of its members. The One is that it is no disparagement of the PRA that in the
assumption of office of the official concerned, and (2) people cannot just be asked on the day of the election ensuing election the local official whose recall is sought
that no recall shall take place within one year to decide on the performance of their officials. The is actually reelected. Laws converting municipalities
immediately preceding a regular local election. crystallization and formation of an informed public into cities and providing for the holding of plebiscites
opinion takes time. To hold, therefore, that the first during which the question of cityhood is submitted to
The purpose of the first limitation is to provide a limitation in paragraph (b) includes the holding of the people for their approval are not always approved
reasonable basis for judging the performance of an assemblies for the exchange of ideas and opinions by the people. Yet, no one can say that Congress is not
elective local official. In the Bower case[8] cited by this among citizens is to unduly curtail one of the most a good judge of the will of the voters in the locality. In
Court in Angobung v. COMELEC,[9] it was held that "The cherished rights in a free society. Indeed, it is wrong to the case of recall elections in Kaloocan City, had it been
only logical reason which we can ascribe for requiring assume that such assemblies will always eventuate in a shown that the PRA was resorted to only because those
the electors to wait one year before petitioning for a recall election. To the contrary, they may result in the behind the move to oust the incumbent mayor failed to
recall election is to prevent premature action on their expression of confidence in the incumbent. obtain the signatures of 25% of the voters of that city
part in voting to remove a newly elected official before to a petition for his recall, there may be some
having had sufficient time to evaluate the soundness of Our esteemed colleague Justice Puno says in his dissent plausibility for the claim that PRAs are not as good a
his policies and decisions." The one-year limitation was that the purpose of the one-year period in paragraph gauge of the people's will as are the 25 % of the voters.
reckoned as of the filing of a petition for recall because (b) is to provide the local official concerned a "period of
the Municipal Code involved in that case expressly repose" during which "[his] attention should not be Indeed, recalls initiated directly by 25% of the
provided that "no removal petition shall be filed against distracted by any impediment, especially by registered voters of a local government unit cannot be
any officer or until he has actually held office for at disturbance due to political partisanship." more representative of the sentiments of the people
least twelve months." But however the period of Unfortunately, the law cannot really provide for a than those initiated by PRAs whose members represent
prohibition is determined, the principle announced is period of honeymoon or moratorium in politics. From the entire electorate in the local government unit.
that the purpose of the limitation is to provide a the day an elective official assumes office, his acts Voters who directly initiate recalls are just as
reasonable basis for evaluating the performance of an become subject to scrutiny and criticism, and it is not

LOCGOV CASES | MEETING 12 Page 26


vulnerable to political maneuverings or manipulations Code includes the Election Period for that Regular second limitation in paragraph (b) includes the
as are those composing PRAs. Korte Election or Simply the Date of Such Election "election period" would emasculate even more a vital
right of the people.
The other point regarding Justice Punos claim is that Petitioner contends, however, that the date set by the
the question here is not whether recalls initiated by COMELEC for the recall election is within the second To recapitulate the discussion in parts 1 and 2, 74
25% of the voters are better. The issue is whether the period of prohibition in paragraph (b). He argues that imposes limitations on the holding of recall elections.
one-year period of limitation in paragraph (b) includes the phrase "regular local elections" in paragraph (b) First, paragraph (a) prohibits the holding of such
the convening of the PRA. Given that question, will does not only mean "the day of the regular local election more than once during the term of office of an
convening the PRA outside this period make it any election" which, for the year 2001 is May 14, but the elective local official. Second, paragraph (b) prohibits
more representative of the people, as the petition filed election period as well, which is normally at least forty the holding of such election within one year from the
by 25 % of the registered voters is claimed to be? five (45) days immediately before the day of the date the official assumed office. And third, paragraph
election. Hence, he contends that beginning March 30, (b) prohibits the holding of a recall election within one
To sum up, the term "recall" in paragraph (b) refers to 2000, no recall election may be held. Sclaw year immediately preceding a regular local election. As
the recall election and not to the preliminary succinctly stated in Paras v.
proceedings to initiate recall - This contention is untenable. COMELEC,[12] "[p]aragraph (b) construed together with
paragraph (a) merely designates the period when such
elective local official may be subject to recall election,
1. Because 74 speaks of limitations on "recall" which, The law is unambiguous in providing that "[n]o recall
that is, during the second year of office."
according to 69, is a power which shall be exercised by shall take place within . . . one (1) year immediately
the registered voters of a local government unit. Since preceding a regular local election." Had Congress
the voters do not exercise such right except in an intended this limitation to refer to the campaign (3)
election, it is clear that the initiation of recall period, which period is defined in the Omnibus Election
proceedings is not prohibited within the one-year Code,[10] it could have expressly said so. On Whether the Recall RESOLUTION was Signed by a
period provided in paragraph (b); Majority of the PRA and Duly Verified
Moreover, petitioner's interpretation would severely
2. Because the purpose of the first limitation in limit the period during which a recall election may be Petitioner alleges other grounds for seeking the
paragraph (b) is to provide voters a sufficient basis for held. Actually, because no recall election may be held annulment of the resolution of the COMELEC ordering
judging an elective local official, and final judging is not until one year after the assumption of office of an the holding of a recall election. He contends that a
done until the day of the election; and elective local official, presumably on June 30 following majority of the signatures of the members of the PRA
his election, the free period is only the period from July was not obtained because 74 members did not really
3. Because to construe the limitation in paragraph (b) 1 of the following year to about the middle of May of sign the recall resolution. According to petitioner, the
as including the initiation of recall proceedings would the succeeding year. This is a period of only nine 74 merely signed their names on pages 94-104 of the
unduly curtail freedom of speech and of assembly months and 15 days, more or less. To construe the resolution to signify their attendance and not their
guaranteed in the Constitution. second limitation in paragraph (b) as including the concurrence. Petitioner claims that this is shown by the
campaign period would reduce this period to eight word "Attendance" written by hand at the top of the
months. Such an interpretation must be rejected, page on which the signatures of the 74 begin.
As the recall election in Pasay City is set on April 15,
because it would devitalize the right of recall which is
2000, more than one year after petitioner assumed
designed to make local government units" more This contention has no basis. To be sure, this claim is
office as mayor of that city, we hold that there is no bar
responsive and accountable." Sclex being raised for the first time in this case. It was not
to its holding on that date.
raised before the COMELEC, in which the claim made
Indeed, there is a distinction between election period by petitioner was that some of the names in the
(2)
and campaign period. Under the Omnibus Election petition were double entries, that some members had
Code,[11] unless otherwise fixed by the COMELEC, the withdrawn their support for the petition, and that
On Whether the Phrase "Regular Local Election" in the election period commences ninety (90) days before the Wenceslao Trinidad's pending election protest was a
Same Paragraph (b) of 74 of the Local Government day of the election and ends thirty (30) days thereafter. prejudicial question which must first be resolved before
Thus, to follow petitioner's interpretation that the the petition for recall could be given due course. The
LOCGOV CASES | MEETING 12 Page 27
order of the COMELEC embodying the stipulations of Panganiban, J., joined the dissents of JJ. Puno and
the parties and defining the issues to be resolved does Kapunan. Xsc
not include the issue now being raised by
petitioner. Xlaw Pardo, and De Leon, Jr., JJ., join the dissent of J. Puno.

Although the word "Attendance" appears at the top of


the page, it is apparent that it was written by mistake
because it was crossed out by two parallel lines drawn
across it. Apparently, it was mistaken for the
attendance sheet which is a separate document. It is
absurd to believe that the 74 members of the PRA who
signed the recall resolution signified their attendance at
the meeting twice. It is more probable to believe that
they signed pages 94-104 to signify their concurrence in
the recall resolution of which the pages in question are
part.

The other point raised by petitioner is that the recall


petition filed in the COMELEC was not duly verified,
because Atty. Nelson Ng, who notarized it, is not
commissioned as notary public for Pasay City but for
Makati City. As in the case of the first claim, this issue
was not raised before the COMELEC itself. It cannot,
therefore, be raised now.

WHEREFORE, G.R. No. 140560 is DISMISSED for lack of


merit, while the petition in G.R. No. 140714 is
DISMISSED for having been rendered moot and
academic.

SO ORDERED. MENDOZA, J

Davide, Jr., C.J., Bellosillo, Quisumbing, Buena,


Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Melo, and Purisima, JJ., on leave.

Puno, J., see dissenting opinion.

Vitug, J., reiterate his separate opinion in the resolution


of 5 Apr. 2000.

Kapunan, J., see attached separate and dissenting


opinion.

LOCGOV CASES | MEETING 12 Page 28


FIRST DIVISION In his defense, respondent claimed that one of his SEC. 7. Prohibited Acts and Transactions. In
duties as punong barangay was to hear complaints addition to acts and omissions of public officials and
WILFREDO M. CATU, A.C. No. 5738 referred to the barangays Lupong Tagapamayapa. As employees now prescribed in the Constitution and
Complainant, such, he heard the complaint of Regina and Antonio existing laws, the following shall constitute prohibited
Present: PUNO, C.J., Chairperson, against Elizabeth and Pastor. As head of the Lupon, he acts and transactions of any public official ands
SANDOVAL-GUTIERREZ, - v e r s u s - CORONA, AZCUNA performed his task with utmost objectivity, without employee and are hereby declared to be unlawful:
and LEONARDO-DE CASTRO, JJ. ATTY. VICENTE G. bias or partiality towards any of the parties. The
RELLOSA, parties, however, were not able to amicably settle their xxx xxx xxx
Respondent. Promulgated: dispute and Regina and Antonio filed the ejectment
February 19, 2008 case. It was then that Elizabeth sought his legal (b) Outside employment and other activities
assistance. He acceded to her request. He handled her related thereto. Public officials and employees during
x-------------------------------------------- case for free because she was financially distressed and their incumbency shall not:
- - - - - - -x he wanted to prevent the commission of a patent
RESOLUTION injustice against her. xxx xxx xxx
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a The complaint was referred to the Integrated Bar of the (2) Engage in the private practice of
lot[1] and the building erected thereon located at 959 Philippines (IBP) for investigation, report and profession unless authorized by the Constitution or
San Andres Street, Malate, Manila. His mother and recommendation. As there was no factual issue to law, provided that such practice will not conflict or
brother, Regina Catu and Antonio Catu, contested the thresh out, the IBPs Commission on Bar Discipline (CBD) tend to conflict with their official functions; xxx
possession of Elizabeth C. Diaz-Catu[2] and Antonio required the parties to submit their respective position (emphasis supplied)
Pastor[3] of one of the units in the building. The latter papers. After evaluating the contentions of the parties, According to the IBP-CBD, respondents
ignored demands for them to vacate the premises. the IBP-CBD found sufficient ground to discipline violation of this prohibition constituted a breach of
Thus, a complaint was initiated against them in respondent.[7] Canon 1 of the Code of Professional Responsibility:
the Lupong Tagapamayapa of Barangay 723, Zone 79
of the 5th District of Manila[4] where the parties reside. According to the IBP-CBD, respondent CANON 1. A LAWYER SHALL UPHOLD THE
admitted that, as punong barangay, he presided over CONSTITUTION, OBEY THE LAWS OF THE
Respondent, as punong barangay of Barangay the conciliation proceedings and heard the complaint LAND, PROMOTE RESPECT FOR LAW AND LEGAL
723, summoned the parties to conciliation of Regina and Antonio against Elizabeth and Pastor. PROCESSES. (emphasis supplied)
meetings.[5] When the parties failed to arrive at an Subsequently, however, he represented Elizabeth and For these infractions, the IBP-CBD
amicable settlement, respondent issued a certification Pastor in the ejectment case filed against them by recommended the respondents suspension from the
for the filing of the appropriate action in court. Regina and Antonio. In the course thereof, he prepared practice of law for one month with a stern warning that
and signed pleadings including the answer with the commission of the same or similar act will be dealt
Thereafter, Regina and Antonio filed a complaint for counterclaim, pre-trial brief, position paper and notice with more severely.[9] This was adopted and approved
ejectment against Elizabeth and Pastor in the of appeal. By so doing, respondent violated Rule 6.03 of by the IBP Board of Governors.[10]
Metropolitan Trial Court of Manila, Branch 11. the Code of Professional Responsibility:
Respondent entered his appearance as counsel for the We modify the foregoing findings regarding
defendants in that case. Because of this, complainant Rule 6.03 A lawyer shall not, after leaving the transgression of respondent as well as the
filed the instant administrative complaint,[6] claiming government service, accept engagement or recommendation on the imposable penalty.
that respondent committed an act of impropriety as a employment in connection with any matter in which he
lawyer and as a public officer when he stood as counsel intervened while in said service. RULE 6.03 OF THE CODE OF PROFESSIONAL
for the defendants despite the fact that he presided RESPONSIBILITY APPLIES ONLY TO FORMER
over the conciliation proceedings between the litigants Furthermore, as an elective official, GOVERNMENT LAWYERS
as punong barangay. respondent contravened the prohibition under Section Respondent cannot be found liable for
7(b)(2) of RA 6713:[8] violation of Rule 6.03 of the Code of Professional

LOCGOV CASES | MEETING 12 Page 29


Responsibility. As worded, that Rule applies only to a (2) Appear as counsel in any criminal case local chief executives. This is because they are required
lawyer who has left government service and in wherein an officer or employee of the national or local to render full time service. They should therefore
connection with any matter in which he intervened government is accused of an offense committed in devote all their time and attention to the performance
while in said service. In PCGG v. Sandiganbayan,[11] we relation to his office; of their official duties.
ruled that Rule 6.03 prohibits former government
lawyers from accepting engagement or employment in (3) Collect any fee for their appearance in On the other hand, members of
connection with any matter in which [they] had administrative proceedings involving the local the sangguniang panlalawigan, sangguniang
intervened while in said service. government unit of which he is an official; and panlungsod or sangguniang bayan may practice their
professions, engage in any occupation, or teach in
Respondent was an incumbent punong (4) Use property and personnel of the schools except during session hours. In other words,
barangay at the time he committed the act complained Government except when the sanggunian member they may practice their professions, engage in any
of. Therefore, he was not covered by that provision. concerned is defending the interest of the Government. occupation, or teach in schools outside their session
hours. Unlike governors, city mayors and municipal
SECTION 90 OF RA 7160, NOT SECTION (c) Doctors of medicine may practice their mayors, members of the sangguniang
7(B)(2) OF RA 6713, GOVERNS THE PRACTICE OF profession even during official hours of work only on panlalawigan, sangguniang
PROFESSION OF ELECTIVE LOCAL GOVERNMENT occasions of emergency: Provided, That the officials panlungsod or sangguniang bayan are required to hold
OFFICIALS concerned do not derive monetary compensation regular sessions only at least once a week.[14] Since the
Section 7(b)(2) of RA 6713 prohibits public therefrom. law itself grants them the authority to practice their
officials and employees, during their incumbency, from professions, engage in any occupation or teach in
engaging in the private practice of their profession This is a special provision that applies schools outside session hours, there is no longer any
unless authorized by the Constitution or law, provided specifically to the practice of profession by elective need for them to secure prior permission or
that such practice will not conflict or tend to conflict local officials. As a special law with a definite scope authorization from any other person or office for any of
with their official functions. This is the general law (that is, the practice of profession by elective local these purposes.
which applies to all public officials and employees. officials), it constitutes an exception to Section 7(b)(2)
For elective local government officials, Section of RA 6713, the general law on engaging in the private While, as already discussed, certain local
90 of RA 7160[12] governs: practice of profession by public officials and elective officials (like governors, mayors, provincial
employees. Lex specialibus derogat generalibus.[13] board members and councilors) are expressly subjected
SEC. 90. Practice of Profession. (a) All to a total or partial proscription to practice their
governors, city and municipal mayors are prohibited Under RA 7160, elective local officials of profession or engage in any occupation, no such
from practicing their profession or engaging in any provinces, cities, municipalities and barangays are the interdiction is made on the punong barangay and the
occupation other than the exercise of their functions as following: the governor, the vice governor and members of the sangguniang barangay.Expressio unius
local chief executives. members of thesangguniang panlalawigan for est exclusio alterius.[15] Since they are excluded from
provinces; the city mayor, the city vice mayor and the any prohibition, the presumption is that they are
(b) Sanggunian members may practice their members of the sangguniang panlungsod for cities; the allowed to practice their profession. And this stands to
professions, engage in any occupation, or teach in municipal mayor, the municipal vice mayor and the reason because they are not mandated to serve full
schools except during session hours: Provided, members of the sangguniang bayan for municipalities time. In fact, the sangguniang barangay is supposed to
That sanggunian members who are members of the and the punong barangay, the members of hold regular sessions only twice a month.[16]
Bar shall not: the sangguniang barangay and the members of
the sangguniang kabataan for barangays. Accordingly, as punong barangay, respondent
(1) Appear as counsel before any court in any was not forbidden to practice his profession. However,
civil case wherein a local government unit or any office, Of these elective local officials, governors, city he should have procured prior permission or
agency, or instrumentality of the government is the mayors and municipal mayors are prohibited from authorization from the head of his Department, as
adverse party; practicing their profession or engaging in any required by civil service regulations.
occupation other than the exercise of their functions as

LOCGOV CASES | MEETING 12 Page 30


A LAWYER IN GOVERNMENT SERVICE WHO IS and promote respect for it. To underscore the primacy violating his oath as a lawyer and Canons 1 and 7 and
NOT PROHIBITED TO PRACTICE LAW MUST SECURE and importance of this duty, it is enshrined as the first Rule 1.01 of the Code of Professional Responsibility. He
PRIOR AUTHORITY FROM THE HEAD OF HIS canon of the Code of Professional Responsibility. is therefore SUSPENDED from the practice of law for a
DEPARTMENT period of six months effective from his receipt of this
A civil service officer or employee whose In acting as counsel for a party without first securing resolution. He is sternly WARNED that any repetition of
responsibilities do not require his time to be fully at the the required written permission, respondent not only similar acts shall be dealt with more severely.
disposal of the government can engage in the private engaged in the unauthorized practice of law but also
practice of law only with the written permission of the violated civil service rules which is a breach of Rule 1.01 Respondent is strongly advised to look up and take to
head of the department concerned.[17] Section 12, Rule of the Code of Professional Responsibility: heart the meaning of the word delicadeza.
XVIII of the Revised Civil Service Rules provides:
Rule 1.01 A lawyer shall not engage in unlawful, Let a copy of this resolution be furnished the Office of
Sec. 12. No officer or employee shall engage directly in dishonest, immoral or deceitful conduct. (emphasis the Bar Confidant and entered into the records of
any private business, vocation, or profession or be supplied) respondent Atty. Vicente G. Rellosa. The Office of the
connected with any commercial, credit, agricultural, or Court Administrator shall furnish copies to all the
industrial undertaking without a written permission courts of the land for their information and guidance.
from the head of the Department: Provided, That this For not living up to his oath as well as for not complying
prohibition will be absolute in the case of those officers with the exacting ethical standards of the legal SO ORDERED.
and employees whose duties and responsibilities profession, respondent failed to comply with Canon 7
require that their entire time be at the disposal of the of the Code of Professional Responsibility:
Government; Provided, further, That if an employee is
granted permission to engage in outside activities, time CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD
so devoted outside of office hours should be fixed by THE INTEGRITY AND THE DIGNITY OF THE LEGAL
the agency to the end that it will not impair in any way PROFESSION AND SUPPORT THE ACTIVITIES OF THE
the efficiency of the officer or employee: And provided, INTEGRATED BAR. (emphasis supplied)
finally, that no permission is necessary in the case of
investments, made by an officer or employee, which do Indeed, a lawyer who disobeys the law
not involve real or apparent conflict between his disrespects it. In so doing, he disregards legal ethics and
private interests and public duties, or in any way disgraces the dignity of the legal profession.
influence him in the discharge of his duties, and he shall
not take part in the management of the enterprise or Public confidence in the law and in lawyers
become an officer of the board of directors. (emphasis may be eroded by the irresponsible and improper
supplied) conduct of a member of the bar.[18] Every lawyer should
act and comport himself in a manner that promotes
As punong barangay, respondent should public confidence in the integrity of the legal
have therefore obtained the prior written permission profession.[19]
of the Secretary of Interior and Local Government
before he entered his appearance as counsel for A member of the bar may be disbarred or
Elizabeth and Pastor. This he failed to do. suspended from his office as an attorney for violation
of the lawyers oath[20] and/or for breach of the ethics of
The failure of respondent to comply with Section 12, the legal profession as embodied in the Code of
Rule XVIII of the Revised Civil Service Rules constitutes Professional Responsibility.
a violation of his oath as a lawyer: to obey the laws.
Lawyers are servants of the law, vires legis, men of the WHEREFORE, respondent Atty. Vicente G. Rellosa is
law. Their paramount duty to society is to obey the law hereby found GUILTY of professional misconduct for

LOCGOV CASES | MEETING 12 Page 31


G.R. No. 105909 June 28, 1994 fee as may accrue until final determination of the case; represents the taxes due under the judgment to the
(4) sanitary inspection fee in the amount of P1,010.00 municipality and over which judgment the law firm of
MUNICIPALITY OF PILILLA, RIZAL, petitioner, for the period from 1975 to 1984, plus the amount of Atty. Mendiola had registered two liens for alleged
vs. this fee that may accrue until final determination of the consultancy services of 25% and attorneys' fees of 25%
HON. COURT OF APPEALS, HON. ARTURO A. MARAVE, case; and (5) the costs of suit. 2 which, when quantified and added, amount to more
as Presiding Judge, Regional Trial Court, Branch 78, than P12 million.
Morong, Rizal, and PHILIPPINE PETROLEUM On June 3, 1991, in G.R. No. 90776 this Court affirmed On January 28,1992, the trial court denied the
CORPORATION, respondents. the aforesaid judgment, with the modification that aforesaid motion for reconsideration. 5
business taxes accruing prior to 1976 are not to be paid
Felix E. Mendiola for petitioner. by PPC because the same have prescribed, and that On February 18, 1992, Atty. Mendiola, again ostensibly
storage fees are not also to be paid by PPC since the in behalf of herein petitioner municipality, filed a
storage tanks are owned by PPC and not by the petition forcertiorari with us, which petition we
Makalintal, Barot, Torres & Ibarra for respondent
municipality and, therefore, cannot be the bases of a referred to the Court of Appeals for proper disposition
Philippine Petroleum Corporation.
charge for service by the municipality. 3 This judgment and was docketed therein as CA-G.R. SP No. 27504. 6 On
became final and executory on July 13, 1991 and the March 2, 1992, respondent PPC filed a motion
REGALADO, J.: records were remanded to the trial court for execution. questioning Atty. Mendiola's authority to represent
petitioner municipality. 7 Consequently, on March 31,
Petitioner questions and seeks the nullification of the On October 14, 1991, in connection with the execution 1992 respondent Court of Appeals dismissed the
resolution of respondent Court of Appeals in CA-G.R. of said judgment, Atty. Felix E. Mendiola filed a motion petition for having been filed by a private counsel in
SP. No. 27504 dated March 31, 1992, dismissing the in behalf of plaintiff municipality with the Regional Trial violation of law and jurisprudence, but without
petition for having been filed by a private counsel, as Court, Branch 78, Morong, Rizal* for the examination prejudice to the filing of a similar petition by the
well as its succeeding resolution dated June 9, 1992, of defendant corporation's gross sales for the years Municipality of Pililla through the proper provincial or
denying petitioner's motion for reconsideration. 1 1976 to 1978 and 1984 to 1991 for the purpose of municipal legal officer. 8 Petitioner filed a motion for
computing the tax on business imposed under the Local reconsideration which was denied by the Court of
The records show that on March 17, 1989, the Regional Tax Code, as amended. On October 21, 1991, Appeals in its resolution of June 9, 1992. 9
Trial Court of Tanay, Rizal, Branch 80, rendered defendant corporation filed a manifestation to the
judgment in Civil Case No. 057-T in favor of plaintiff, effect that on October 18, 1991, Pililla Mayor Petitioner is once again before us with the following
now herein petitioner Municipality of Pililla, Rizal, Nicomedes Patenia received from it the sum of assignment of errors:
against defendant, now herein private respondent P11,457,907.00 as full satisfaction of the above-
Philippine Petroleum Corporation (PPC, for short), mentioned judgment of the Supreme Court, as 1. It is an error for the Court of Appeals to consider
ordering therein defendant to pay said plaintiff (1) the evidence by the release and quitclaim documents private respondent's new issue raised for the first time
amount of P5,301,385.00 representing the tax on executed by said mayor. Accordingly, on October 31, on appeal, as it could no longer be considered on
business due from the defendant under Section 9(A) of 1991 the court below issued an order denying plaintiff appeal, because it was never been (sic) raised in the
Municipal Tax Ordinance No. 1 of said municipality for municipality's motion for examination and execution of court below.
the period from 1979 to 1983, inclusive, plus such judgment on the ground that the judgment in question
amount of tax as may accrue until final determination had already been satisfied. 4
2. It is an error for the Court of Appeals in dismissing
of the case; (2) storage permit fee in the amount of
(sic) the instant petition with alternative remedy of
P3,321,730.00 due from the defendant under Section Thereafter, on November 21, 1991 Atty. Mendiola filed filing similar petition as it is a departure from
10, paragraph Z(13) a motion for reconsideration of the court's aforesaid established jurisprudence.
(b-1-c) of the same municipal tax ordinance for the order of October 31, 1991, claiming that the total
period from 1975 to 1986, inclusive, plus the amount of liability of defendant corporation to plaintiff
said fee that may accrue until final determination of the 3. It is an error for the Court of Appeals to rule that the
municipality amounted to P24,176,599.00, while the
case; (3) mayor's permit fee due from the defendant filing of the instant petition by the private counsel is in
amount involved in the release and quitclaim executed
under Section 10, paragraph (P) (2) of said municipal violation of law and jurisprudence. 10
by Mayor Patenia was only P12,718,692; and that the
tax ordinance from 1975 to 1984, inclusive, in the said mayor could not waive the balance which
amount of P12,120.00, plus such amount of the same We find the present petition devoid of merit.
LOCGOV CASES | MEETING 12 Page 32
The Court of Appeals is correct in holding that Atty. appeal, hence the appearance of herein private counsel into a compromise agreement with herein private
Mendiola has no authority to file a petition in behalf of is without authority of law. respondent with regard to the execution of the
and in the name of the Municipality of Pililla. The judgment in its favor and thereafter filed personally
matter of representation of a municipality by a private The submission of Atty. Mendiola that the exception is with the court below two pleadings
attorney has been settled in Ramos vs. Court of broad enough to include situations wherein the entitled and constitutive of a "Satisfaction of
Appeals, et al., 11 and reiterated in Province of Cebu provincial fiscal refuses to handle the case cannot be Judgment" and a "Release and Quitclaim". 20
vs. Intermediate Appellate Court, et al., 12 where we sustained. The fiscal's refusal to represent the
ruled that private attorneys cannot represent a municipality is not a legal justification for employing A client, by appearing personally and presenting a
province or municipality in lawsuits. the services of private counsel. Unlike a practicing motion by himself, is considered to have impliedly
lawyer who has the right to decline employment, a dismissed his lawyer. Herein counsel cannot pretend to
Section 1683 of the Revised Administrative Code fiscal cannot refuse to perform his functions on be authorized to continue representing the
provides: grounds not provided for by law without violating his municipality since the latter is entitled to dispense with
oath of office. Instead of engaging the services of a his services at any time. Both at common law and
Section 1683. Duty of fiscal to represent provinces and special attorney, the municipal council should request under Section 26, Rule 138 of the Rules of Court, a
provincial subdivisions in litigation. — The provincial the Secretary of Justice to appoint an acting provincial client may dismiss his lawyer at any time or at any stage
fiscal shall represent the province and any municipality fiscal in place of the provincial fiscal who has declined of the proceedings, and there is nothing
or municipal district thereof in any court, except in to handle and prosecute its case in court, pursuant to to prevent a litigant from appearing before the court to
cases whereof original jurisdiction is vested in the Section 1679 of the Revised Administrative Code. 17 conduct his own litigation. 21
Supreme Court or in cases where the municipality or
municipal district in question is a party adverse to the It is also significant that the lack of authority of herein The client has also an undoubted right to compromise a
provincial government or to some other municipality or counsel, suit without the intervention of his lawyer. 22 Even the
municipal district in the same province. When the Atty. Mendiola, was even raised by the municipality lawyers' right to fees from their clients may not be
interests of a provincial government and of any political itself in its comment and opposition to said counsel's invoked by the lawyers themselves as a ground for
division thereof are opposed, the provincial fiscal shall motion for execution of his lien, which was filed with disapproving or holding in abeyance the approval of a
act on behalf of the province. the court a quo by the office of the Provincial compromise agreement. The lawyers concerned can
Prosecutor of Rizal in behalf of said municipality. 18 enforce their rights in the proper court in an
When the provincial fiscal is disqualified to serve any appropriate proceeding in accordance with the Rules of
municipality or other political subdivision of a province, The contention of Atty. Mendiola that private Court, but said rights may not be used to prevent the
a special attorney may be employed by its council. 13 respondent cannot raise for the first time on appeal his approval of the compromise agreement. 23
lack of authority to represent the municipality is
Under the above provision, complemented by Section untenable. The legality of his representation can be The apprehension of herein counsel that it is impossible
3, Republic Act No. 2264, the Local Autonomy questioned at any stage of the proceedings. In the that the municipality will file a similar petition,
Law, 14 only the provincial fiscal and the municipal cases hereinbefore cited, 19 the issue of lack of considering that the mayor who controls its legislative
attorney can represent a province or municipality in authority of private counsel to represent a municipality body will not take the initiative, is not only conjectural
their lawsuits. The provision is mandatory. The was only raised for the first time in the proceedings for but without factual basis. Contrary to his pretensions,
municipality's authority to employ a private lawyer is the collection of attorney's fees for services rendered in there is presently a manifestation and motion pending
expressly limited only to situations where the provincial the particular case, after the decision in that case had with the trial court filed by the aforesaid municipal
fiscal is disqualified to represent it. 15 become final and executory and/or had been duly mayor for the withdrawal of the "Satisfaction of
executed. Judgment" and the "Release and
Quitclaim"24 previously filed in the case therein as
For the aforementioned exception to apply, the fact
Furthermore, even assuming that the representation of earlier mentioned.
that the provincial fiscal was disqualified to handle the
municipality's case must appear on the municipality by Atty. Mendiola was duly authorized,
record. 16 In the instant case, there is nothing in the said authority is deemed to have been revoked by the WHEREFORE, the petition at bar is DENIED for lack of
records to show that the provincial fiscal is disqualified municipality when the latter, through the municipal merit and the judgment of respondent Court of Appeals
to act as counsel for the Municipality of Pililla on mayor and without said counsel's participation, entered is hereby AFFIRMED.SO ORDERED.

LOCGOV CASES | MEETING 12 Page 33


G.R. No. 99425 March 3, 1997 over a commercial arcade to be constructed in the municipality, is adopting the entire proceedings
municipality of Baliuag, Bulacan. participated in/undertaken by Atty. Romanillos.
ANTONIO C. RAMOS, ROSALINDA M. PEREZ, NORMA
C. CASTILLO and BALIUAG MARKET VENDORS On April 27, 1980, during the hearing on the On September 19, 1990 respondent Judge issued the
ASSOCIATION, INC., petitioners, petitioners' motion for the issuance of preliminary Order now being assailed which, as already stated,
vs. injunction, was issued by the court a quo on May 9, denied petitioners' motion to disqualify Atty.
COURT OF APPEALS, HON. CAMILO O. MONTESA, JR., 1990. Romanillos as counsel for respondent municipality and
in his capacity as Presiding Judge of the Regional Trial to declare null and void the proceeding participated in
Court of Bulacan, Branch 19, and MUNICIPALITY OF Meanwhile, on May 3, 1990, the provincial Fiscal and by Atty. Romanillos; and on the other hand, granted
BALIUAG, respondents. the Provincial Attorney, Oliviano D. Regalado, filed an Atty. Regalado's motion "to formally adopt the entire
Answer in (sic) behalf of respondent municipality. proceedings including the formal offer of evidence". In
support of his foregoing action, respondent Judge
reasoned:
At the pre-trial conference scheduled on May 28, 1990,
PANGANIBAN, J.: Atty. Roberto B. Romanillos appeared, manifesting that
he was counsel for respondent municipality. On the "Petitioners" motion for the disqualification of Atty.
same date, and on June 15, 1990, respectively, Atty. Romanillos as respondent municipality's counsel is
Who has the legal authority to represent a municipality
Romanillos filed a motion to dissolve injunction and a deemed moot and academic in view of his withdrawal
in law-suits? If an unauthorized lawyer represents a
motion to admit an Amended Answer with motion to as counsel of said municipality pursuant to a joint
municipality what is the effect of his participation in the
dismiss. motion dated August 22, 1990, although he shall
proceedings? Parenthetically, does a motion to
remain as counsel on record of private respondent
withdraw the appearance of the unauthorized counsel
Kristi Corporation. Atty. Oliviano Regalado under the
have to comply with Rule 15 of the Rules of Court On June 18, 1990, Provincial Attorney Oliviano D.
same joint motion moved for the adoption of the entire
regarding notice and hearing of motions? Regalado appeared as collaborating counsel of Atty.
proceedings conducted by collaborating counsel, Atty.
Romanillos. The Provincial Fiscal did not appear. It was
Romanillos.
These questions are answered by this Court in resolving Atty. Romanillos who submitted the Reply to
this petition for review under Rule 45 of the Rules of petitioners' Opposition to respondents' motion to
dissolve injunction. It was also Atty. Romanillos who It is noted that Atty. Romanillos initially entered his
Court of the Decision 1 of public
submitted a written formal offer of evidence on July 17, appearance as collaborating counsel of the Provincial
respondent 2 in CA-G.R. SP No. 23594 promulgated on
1990 for respondent municipality. Prosecutor and the Provincial Attorney when he filed a
March 15, 1991, which denied due course to and
motion to dissolve injunction under motion dated May
dismissed the petition therein. Also assailed is the
30, 1990 and since then despite his active participation
Resolution 3 of public respondent promulgated on May During the hearing on August 10, 1990, petitioners
in the proceedings, the opposing counsel has never
9, 1991, which denied the motion for reconsideration questioned the personality of Atty. Romanillos to
questioned his appearance until after he made a formal
for lack of merit. appear as counsel of (sic) the respondent municipality,
offer of evidence for the respondents. The
which opposition was reiterated on August 15, 1990,
acquiescence of petitioners' counsel of (sic) his
The Facts and was put in writing in petitioners' motion of August
appearance is tantamount to a waiver and petitioners
20, 1990 to disqualify Atty. Romanillos from appearing
are, therefore, estopped to question the same. In all
as counsel for respondent municipality and to declare
The facts as found by public respondent are the pleadings made by Atty. Romanillos, it was clearly
null and void the proceedings participated in and
undisputed, to with: 4 indicated that he was appearing as the collaborating
undertaken by Atty. Romanillos.
counsel of the Provincial Attorney Besides, petitioners'
On April 18, 1990, petitioners Antonio C. Ramos, counsel failed to submit their comment and/or
Meanwhile, Atty. Romanillos and Atty. Regalado filed a objection to the said joint motion of respondents'
Rosalinda M. Perez, Norma C. Castillo, and the Baliuag
joint motion dated August 22, 1990 stating, among counsel as directed by the Court within the
Market Vendors Association, Inc. filed a petition before
others, that Atty. Romanillos was withdrawing as reglementary period. By virtue of these circumstances,
the court a quo docketed as Civil Case No. 264-M-9 for
counsel for respondent municipality and that Atty. all the proceedings attended to and participated in by
the Declaration of Nullity of Municipal Ordinances No.
Regalado, as his collaborating counsel for respondent
91 (1976) and No. 7 (1990) and the contract of lease

LOCGOV CASES | MEETING 12 Page 34


said collaborating counsel is a fait accompli and the The issues raised by petitioners in their Memorandum VI-3 The respondent court acted in excess of its
Court finds no cogent justification to nullify the same." are: 5 jurisdiction and in grave abuse of discretion when it
acted and granted the respondent's JOINT MOTION
Petitioner's motion for reconsideration of the foregoing 1) Under present laws and jurisprudence, can a dated August 22, 1990 (annex "H") which, as a rule, is a
Order was denied by respondent Judge in his Order municipality be represented in a suit against it by a mere worthless piece of paper which the respondent
dated October 19, 1990, the second Order now being private counsel? judge/court has no authority to act upon, considering
assailed. Respondent Judge reiterated the observations that said motion was filed in court in patent violation of
which he made in the Order of September 19, 1990 or without complying with the mandatory
2) If not, what is the status of the proceedings
that Atty. Romanillos, while actively handling the said requirements provided for by Sections 4 and of Rule 15
undertaken by an unauthorized private counsel;
case was merely appearing as the collaborating counsel and Section 26 of Rule 138 of the Rules of Court.
of both the Provincial Prosecutor and the Provincial
3) Can the provincial attorney of a province act as
Attorney of Bulacan; that Atty. Romanillos' appearance Public respondent did not give due course to the
counsel of a municipality in a suit;
was "never impugned by petitioners" and was only petition "because it does not prima facie show
questioned after his (Atty. Romanillos') submission of justifiable grounds for the issuance
the formal offer of evidence for respondent; and that 4) Can the provincial attorney adopt with legal effect of certiorari." 7 Public respondent adds that: 8
therefore, said court proceedings "is (sic) a fait the proceedings undertaken by an unauthorized private
accompli". Respondent Judge went on to say that the counsel of (sic) a municipality;
Considering the foregoing jurisprudence, the logical
declaration of nullity of said proceedings and the re- conclusion is that the Provincial Attorney of Bulacan
taking of the same evidence by the same parties is (sic) 5) May a court act on an alleged motion which violates has now the authority to represent the municipality of
"apparently an exercise in futility". He added that in the Sections 4 and 5 of Rule 15 and section 26, Rule 128 of Baliuag in its law suits.
absence of untimely objection by petitioners to Atty. the Rules of Court.
Romanillos' appearance as the collaborating counsel,
It follows that respondent Judge was correct in ruling in
petitioners are guilty of laches for having slept on (sic) Petitioners contend that the assailed Decision which the assailed Order of October 19, 1990 that even
their rights and are estopped as their acquiescence may affirmed the Orders of the trial court is void for being assuming, arguendo, that the proceedings by the
be considered as waiver of such right. Furthermore, violative of the following laws: 6 court a quo which had been participated in by Atty.
according to respondent Judge, assuming that the
Romanillos are legally objectionable, this was legally
proceedings had been "tainted with frailness to render VI-1 The respondent court violated Section 1683 of the remedied by the formal adoption by the provincial
the same legally objectionable", the same as been Revised Administrative Code; Section 3, paragraph 3 (a) Attorney, Atty. Regalado, of the said proceedings,
"legally remedied" by its formal adoption upon motion of Republic Act No. 2264, otherwise known as the Local considering that the provincial attorney is not
of the Provincial Attorney (sic), Atty. Regalado, who is Autonomy Act; and Section 35, Book IV, Title III, disqualified from representing the municipality of
not disqualified to appear as counsel for the Chapter 12, Administrative Code of 1987 (Executive Baliuag in civil cases.
municipality of Baliuag, for the reason that by virtue of Order No. 292) when it authorized Atty. Oliviano D.
Section 19 of R.A. No. 5185 (The Decentralization Act of Regalado, the Provincial Attorney of Bulacan, to appear
1967), the authority to act as legal officer/adviser for In the second place, the record discloses that Atty.
as counsel for respondent Municipality of Baliuag. Romanillos had appeared as counsel for respondent
(sic) civil cases of the province of Bulacan, of which the
municipality of Baliuag is a political subdivision, has municipality of Baliuag in collaboration with the
VI-2 The respondent court violated Section 1683 of the Provincial Prosecutor and the Provincial Attorney , as
been transferred from the Provincial Fiscal (now
Revised Administrative Code; Section 3, paragraph 3 (a) shown in the motion to dissolve injunction dated may
Provincial Prosecutor) of Bulacan to the Provincial
of Republic Act No. 2264, otherwise known as the Local 28, 1990 which Atty. Romanillos had filed for
Attorney thereof.
Autonomy Act; Section 35, Book IV, Title III, Chapter 12, respondent municipality. Accordingly and pursuant to
Executive Order No. 292, otherwise known as the the aforecited provisions of law, it cannot correctly be
As earlier stated, the Court of Appeals dismissed the Administrative Code of 1987; and Article 1352 of the said that respondent Judge had acted with grave abuse
petition and denied the motion for reconsideration. New Civil Code, when it denied the petitioners' motion of discretion when he allowed Atty. Romanillos to act
Hence this recourse. to declare the proceedings undertaken or participated as private counsel and Atty. Regalado, Provincial
in by said Atty. Roberto B. Romanillos, as private Attorney of Bulacan, to appear as counsel for
The Issues counsel of respondent Municipality, null and void. respondent Municipality of Baliuag. Perforce, it also

LOCGOV CASES | MEETING 12 Page 35


cannot be correctly said that respondent Judge violated contrary to the spirit of the law to limit the sphere of cases whereof (sic) original jurisdiction is vested in the
the aforecited provisions when he denied petitioners' authority of the Provincial Attorney to the province Supreme Court or in cases where the municipality or
motion to declare null and void the proceedings only. 11 municipal district in question is a party adverse to the
undertaken by and participated in by Atty. Romanillos provincial government or to some other municipality or
as private counsel of the municipality of Baliuag. The different allegations boil down to three main municipal district in the same province. When the
issues: (1) Who is authorized to represent a interests of a provincial government and of any political
At any rate, even granting, only for the sake of municipality in a civil suit against it? (2) What is the division thereof are opposed, the provincial fiscal shall
argument, that Atty. Romanillos' appearance as counsel effect on the proceedings when a private counsel act on behalf of the province.
for the municipality could not be legally authorized represents a municipality? Elsewise stated, may be the
under the aforesaid provisions of law, the fact that proceedings be validated by a provincial attorney's When the provincial fiscal is disqualified to serve any
Atty. Regalado as Provincial Attorney of Baliuag had adoption of the actions made by a private counsel? (3) municipality or other political subdivision of a province
formally adopted the proceedings participated in by Does a motion of withdrawal of such unauthorized a special attorney may be employed by its council. 17
Atty. Romanillos as counsel for the municipality of appearance, and adoption of proceedings participated
Baliuag had served, as already stated, to cure such a in by such counsel have to comply with Sections 4 and Under the above provision, complemented by Section
defect. 5 12 of Rule 15 of the Rules of Court? 3, Republic Act No. 2264, the Local Autonomy
Law, 18only provincial fiscal and the municipal attorney
Thirdly, We are likewise unable to see grave abuse of The Court's Ruling can represent a province or municipality in their
discretion in respondent Judge's actuation in granting lawsuits. The provision is mandatory. The municipality's
the joint motion filed by Atty. Romanillos and Atty. We affirm the Decision and Resolution of public authority to employ a private lawyer is expressly
Regalado for the withdrawal of the former as private respondent. limited only to situations where the provincial fiscal is
counsel of respondent municipality, and the adoption disqualified to represent it. 19
by the latter of the proceedings participated
First Issue: Who is Authorized to Represent
in/undertaken by the former, including the formal offer For the aforementioned exception to apply, the fact
a Municipality in its Lawsuits?
of evidence submitted by the former. that the provincial fiscal was disqualified to handle the
municipality's case must appear on record. 20 In the
In the recent case of Municipality of Pililla, Rizal
Public respondent likewise found that the "joint motion instant case, there is nothing in the records to show
vs. Court of Appeals, 13 this Court, through Mr. Justice
does not partake of the nature of an adversarial motion that the provincial fiscal is disqualified to act as counsel
Florenz D. Regalado, set in clear-cut terms the answer
which would have rendered non-compliance with for the Municipality of Pililla on appeal, hence the
to the question of who may legally represent a
Sections 4 and 5 of Rule 15 of the Rules of Court fatal to appearance of herein private counsel is without
municipality in a suit for or against it, thus: 14
the motion." 9 It is to be emphasized that petitioners authority of law.
"sought the disqualification of Atty. Romanillos . . .
(Thus,) what petitioners had sought to (be) achieve(d) . . . The matter of representation of a municipality by a
The provincial fiscal's functions as legal officer and
in their said motion was in fact what Atty. Romanillos private attorney has been settled in Ramos vs.Court of
adviser for the civil cases of a province and corollarily,
had sought . . . in the joint motion dated August 22, Appeals, et al., 15 and reiterated in Province of Cebu
of the municipalities thereof, were subsequently
1990." 10 vs. Intermediate Appellate Court, et al., 16where we
transferred to the provincial attorney. 21
ruled that private attorneys cannot represent a
province or municipality in lawsuits.
Respondent municipality submits that Section 19 of RA The foregoing provisions of law and jurisprudence show
5185 is not meant to prohibit or prevent the Provincial that only the provincial fiscal, provincial attorney, and
Attorney to act as legal adviser and legal officer for Section 1683 of the Revised Administrative Code
municipal attorney should represent a municipality in
municipalities and municipal districts because such provides:
its lawsuits. Only in exceptional instances may a private
interpretations would be to say the least, absurd (sic). attorney be hired by a municipality to represent it in
In this jurisdiction, a province is composed of Sec. 1683. Duty of fiscal to represent provinces and lawsuits. These exceptions are enumerated in the case
municipalities and municipal districts, and therefore provincial subdivisions in litigation. — The provincial ofAlinsug vs. RTC Br. 58, San Carlos City, Negros
they are deemed included in the provisions of Section fiscal shall represent the province and any municipality Occidental, 22 to wit: 23
19 of Republic Act 5185. It is also impractical and or municipal district thereof in any court, except in

LOCGOV CASES | MEETING 12 Page 36


Indeed, it appears that the law allows a private counsel the provincial attorney." 24 This collaboration is Elementary fairness dictates that parties unaware of
to be hired by a municipality only when the municipality contrary to law and hence should not have been the unauthorized representation should not be held in
is an adverse party in a case involving the provincial recognized as legal. It has already been ruled in this estoppel just because they did not question on the spot
government or another municipality or city within the wise: the authority of the counsel for the municipality. The
province. This provision has its apparent origin in the rule on appearances of a lawyers is that
ruling in De Guia v. The Auditor General (44 SCRA 169, The fact that the municipal attorney and the fiscal are
March 29, 1979) where the Court held that the supposed to collaborate with a private law firm does (u)ntil the contrary is clearly shown, an attorney is
municipality's authority to employ a private attorney is not legalize the latter's representation of the presumed to be acting under authority of the litigant
expressly limited only to situations where the provincial municipality of Hagonoy in Civil Case No. 5095-M. whom he purports to represent. (Azotes v. Blanco, 78
fiscal would be disqualified to serve and represent it. While a private prosecutor is allowed in criminal cases, Phil. 739) His authority to appear for and represent
With Sec. 1683 of the old Administrative Code as legal an analogous arrangement is not allowed in civil cases petitioner in litigation, not having been questioned in
basis, the Court therein cited Enriquez, Sr. v. Gimenez wherein a municipality is the plaintiff. 25 the lower court, it will be presumed on appeal that
[107 Phil 932 (1960)] which enumerated instances counsel was properly authorized to file the complaint
when the provincial fiscal is disqualified to represent in and appear for his client. (Republic v. Philippine
As already stated, private lawyers may not represent
court a particular municipality; if and when original Resources Development Corporation, 102 Phil. 960) 28
municipalities on their own. Neither may they do so
jurisdiction of case involving the municipality is vested
even in collaboration with authorized government
in the Supreme Court, when the municipality is a party
lawyers. This is anchored on the principle that only Second Issue: Effect on Proceedings by Adoption
adverse to the provincial government or to some other
accountable public officers may act for and in behalf of of Unauthorized Representation
municipality in the same province, and when, in a case
public entities and that public funds should not be
involving the municipality, he, or his wife, or child, is
expanded to hire private lawyers. Would the adoption by Atty. Regalado of the
pecuniarily involved, as heir legatee, creditor or
otherwise. proceedings participated in by Atty. Romanillos validate
Petitioners cannot be held in estoppel for questioning such proceedings? We agree with public respondent
the legality of the appearance of Atty. Romanillos, that such adoption produces validity. Public respondent
Thereafter, in Ramos vs. Court of Appeals (108 SCRA
notwithstanding that they questioned the witnesses of stated the reasons 29 to which we agree:
728, October 30, 1981), the Court ruled that a
respondent municipality during the hearing of its
municipality may not be represented by a private law
motion to dissolve the preliminary Moreover, it does not appear that the adoption of
firm which had volunteered its services gratis, in
injunction. Municipality of Pililla, Rizal vs. Court of proceedings participated in or undertaken by Atty.
collaboration with the municipal attorney and the
Appeals 26 held that the legality of the representation of Romanillos when he was private counsel for the
fiscal, as such representations was violative of Sec.
an unauthorized counsel may be raised at any stage of respondent municipality of Baliuag — such as the
1683 of the old Administrative Code. This strict
the proceedings. This Court stated that: 27 proceedings on the motion to dissolve the injunction,
coherence to the letter of the law appears to have been
dictated by the fact that "the municipality should not be wherein petitioners had even cross-examined the
burdened with expenses of hiring a private lawyer" and The contention of Atty. Mendiola that private witnesses presented by Atty. Romanillos in support of
that the interests of the municipality would be best respondent cannot raise for the first time on appeal his said motion and had even started to present their
protected if a government lawyer handles its litigations. lack of authority to represent the municipality is witnesses to sustain their objection to the motion —
(Emphasis supplied.) untenable. The legality of his representation can be would have resulted in any substantial prejudice to
questioned at any stage of the proceedings. In the petitioners' interest. As Wee see it, to declare the said
cases hereinbefore cited, the issue of lack of authority proceedings null and void — notwithstanding the
None of the foregoing exceptions is present in this case.
of private counsel to represent a municipality was only formal adoption thereof by Atty. Regalado as Provincial
It may be said that Atty. Romanillos appeared for
raised for the first time in the proceedings for the Attorney of Bulacan in court — and to require trial
respondent municipality inasmuch as he was already
collection of attorney's fees for services rendered in the anew to cover the same subject matter, to hear the
counsel of Kristi Corporation which was sued with
particular case, after the first time in the proceedings same witnesses and to admit the same evidence
respondent municipality in this same case. The order of
for the collection of attorney's fees for services adduced by the same parties cannot enhance the
the trial court dated September 19, 1990, stated that
rendered in the particular case, after the decision in promotion of justice.
Atty. Romanillos "entered his appearance as
that case had become final and executory and/or had
collaborating counsel of the provincial prosecutor and
been duly executed.

LOCGOV CASES | MEETING 12 Page 37


This Court believes that conferring legitimacy to the disqualify Atty. Romanillos. In People vs. Leviste, 31 we
appearance of Atty. Romanillos would not cause ruled that:
substantial prejudice on petitioners. Requiring new trial
on the mere legal technicality that the municipality was While it is true any motion that does not comply with
not represented by a legally authorized counsel would the requirements of Rule 15 should not be accepted for
not serve the interest of justice. After all, this Court filing and, if filed, is not entitled to judicial cognizance,
does not see any injustice committed against this Court has likewise held that where a rigid
petitioners by the adoptions of the work of private application of the rule will result in a manifest failure or
counsel nor any interest of justice being served by miscarriage of justice, technicalities may be disregarded
requiring retrial of the case by the duly authorized legal in order to resolve the case. Litigations should, as much
representative of the town. as possible, be decided on the merits and not on
technicalities. As this Court held in Galvez vs. Court of
In sum, although a municipality may not hire a private Appeals, "an order of the court granting the motion to
lawyer to represent it in litigations, in the interest of dismiss despite the absence of a notice of hearing, or
substantial justice however, we hold that a municipality proof of service thereof, is merely an irregularity in the
may adopt the work already performed in good faith by proceedings . . . (which) cannot deprive a competent
such private lawyer, which work is beneficial to it (1) court of jurisdiction over the case." (Citations omitted).
provided that no injustice it thereby heaped on the
adverse party and (2) provided further that no It should be remembered that rules of procedure are
compensation in any guise is paid therefor by said but tools designed to facilitate the attainment of
municipality to the private lawyer. Unless so expressly justice, such that when rigid application of the rules
adopted, the private lawyers work cannot bind the tend to frustrate rather than promote substantial
municipality. justice, this Court is empowered to suspend their
operation. 32
Third Issue: "Joint Motion" Need Not Comply
with Rule 15 WHEREFORE, premises considered, the Petition is
DENIED and the assailed Decision and Resolution are
We also agree with the justification of public AFFIRMED. No costs.
respondent than a motion to withdraw the appearance
of an unauthorized lawyer is a non-adversarial motion SO ORDERED.
that need not comply with Section 4 Rule 15 as to
notice to the adverse party. The disqualification of Atty.
Narvasa, C.J., Davide, Melo and Francisco, JJ., concur.
Romanillos was what petitioners were really praying for
when they questioned his authority to appear for the
municipality. The disqualification was granted, thereby
serving the relief prayed for by petitioners. such being
the case, no "notice directed to the parties concerned
and served at least 3 days before the hearing
thereof" 30 need be given petitioners, the questioned
motion not being contentious. Besides, what
petitioners were questioning as to lack of authority was
remedied by the adoption of proceedings by an
authorized counsel, Atty. Regalado. The action of the
trial court allowing the motion of respondent
municipality effectively granted petitioners motion to

LOCGOV CASES | MEETING 12 Page 38


G.R. No. 111230 September 30, 1994 (A). Ibalik sa Bataan ang "Virgin Forests" — isang Leon, Vice Mayor and Presiding Officer of the
bundok na hindi nagagalw at punong-puno ng Sangguniang Bayan ng Morong, wrote a letter dated
ENRIQUE T. GARCIA, ET AL., petitioners, malalaking punong-kahoy at iba'-ibang halaman. June 11, 1993 to the Executive Director of COMELEC
vs. requesting the denial of " . . . the petition for a local
COMMISSION ON ELECTIONS and SANGGUNIANG (B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa initiative and/or referendum because the exercise will
BAYAN OF MORONG, BATAAN, respondents. Bataan. just promote divisiveness, counter productive and
futility." 5 We quote the letter,viz:
Alfonzo M. Cruz Law Offices for petitioners. (K). Isama ang mga lupain ng Bataan na nakapaloob sa
SBMA sa pagkukuenta ng salaping ipinagkakaloob ng The Executive Director
pamahalaang national o "Internal Revenue Allotment" COMELEC
(IRA) sa Morong, Hermosa at sa Lalawigan. Intramuros, Metro Manila
PUNO, J.:
(D). Payagang magtatag rin ng sariling "special S i r:
economic zones" ang bawat bayan ng Morong,
The 1987 Constitution is borne of the conviction that
Hermosa at Dinalupihan. In view of the petition filed by a group of proponents
people power can be trusted to check excesses of
headed by Gov. Enrique T. Garcia, relative to the
government. One of the means by which people power
(E). Ibase sa laki ng kanya-kanyang lupa ang conduct of a local initiative and/or referendum for the
can be exercised is thru initiatives where local
pamamahagi ng kikitain ng SBMA. annulment of Pambayang Kapasyahan Blg. 10, Serye
ordinances and resolutions can be enacted or repealed.
1993, may we respectfully request to deny the petition
An effort to trivialize the effectiveness of people's
referred thereto considering the issues raised by the
initiatives ought to be rejected. (G). Ibase rin ang alokasyon ng pagbibigay ng trabaho
proponents were favorably acted upon and endorsed
sa laki ng nasabing mga lupa.
to Congress and other government agencies by the
In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang Bayan of Morong.
Sangguniang Bayan ng Morong, Bataan agreed to the (H). Pabayaang bukas ang pinto ng SBMA na nasa
inclusion of the municipality of Morong as part of the Morong ng 24 na oras at bukod dito sa magbukas pa ng
For your information and guidance, we are
Subic Special Economic Zone in accord with Republic pinto sa hangganan naman ng Morong at Hermosa
enumerating hereunder the issues raised by the
Act upang magkaroon ng pagkakataong umunlad rin ang
petitioners with the corresponding actions undertaken
No. 7227. mga nasabing bayan, pati na rin ng iba pang bayan ng
by the Sangguniang Bayan of Morong, to wit:
Bataan.
On May 24, 1993, petitioners filed a petition 2 with the
ISSUES RAISED BY PROPONENTS
Sangguniang Bayan of Morong to annul Pambayang (I). Tapusin ang pagkokonkreto ng mga daang Morong-
Kapasyahan Blg. 10, Serye 1993. The petition states: Tala-Orani at Morong-Tasig-Dinalupihan para sa
kabutihan ng mga taga-Bataan at tuloy makatulong sa I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10,
pangangalaga ng mga kabundukan. Serye ng taong 1993.
I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang
Kapasyahan Blg. 10, Serye 1993 ng Sangguniang Bayan
para sa pag-anib ng Morong sa SSEZ na walang (J). Magkaroon ng sapat na representasyon sa II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ
kondisyon. pamunuan ng SBMA ang Morong, Hermosa at Bataan. kung:

II. Palitan ito ng isang Pambayang Kapasiyahan na aanib The municipality of Morong did not take any action on a) Ibabalik sa Morong ang pag-aaring Grande Island,
lamang ang Morong sa SSEZ kung ang mga sumusunod the petition within thirty (30) days after its submission. kabundukan at Naval Reservation;
na kondisyones ay ipagkakaloob, ipatutupad at Petitioners then resorted to their power of initiative
isasagawa para sa kapakanan at interes ng Morong at under the Local Government Code of 1991. 3 They b) Ibase sa aring Lupa ng LGU ang kikitain at mapapasok
Bataan: started to solicit the required number of signatures 4 to na manggagawa nila sa SSEZ;
cause the repeal of said resolution. Unknown to the
petitioners, however, the Honorable Edilberto M. de

LOCGOV CASES | MEETING 12 Page 39


c) Isama ang nasabing lupa sa pagkukuwenta ng "IRA" Payumo, when the Resolution of Concurrence to SBMA 5.01 For certiorari, conformably to Sec. 7, Art. IX of the
ng Morong, Hermosa at Dinalupihan; was submitted last April 6, 1993, order the priority Constitution, to set aside Comelec Resolution Nos. 93-
implementation of completion of Morong-Dinalupihan 1676 and 93-1623 (Annexes "E" and "H") insofar as it
d) Makapagtatag ng sariling "economic zones" ang (Tasik-Road) Project, including the Morong-Poblacion- disallowed the initiation of a local initiative to annul
Morong, Hermosa at Dinalupihan; Mabayo Road to DPWH. (Attached and marked as PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993
Annex "C"). including the gathering and authentication of the
required number of signatures in support thereof.
e) Pabayaan bukas ang pinto ng Morong patungong
SSEZ at magbukas ng dalawang (2) pinto pa; Based on the foregoing facts, the Sangguniang Bayan of
Morong had accommodated the clamor of the 5.01.1 As an administrative agency, respondent
petitioners in accordance with its limited powers over Comelec is bound to observe due process in the
(f) Konkretohin ang daang Morong papunta sa Orani at
the issues. However, the Sangguniang Bayan of Morong conduct of its proceedings. Here, the subject
Dinalupihan;
cannot afford to wait for amendments by Congress of resolutions, Annexes "E" and "H", were issued ex
R.A. 7227 that will perhaps drag for several months or parte and without affording petitioners and the other
g) Pumili ng SBMA Chairman na taga-ibang lugar. years, thereby delaying the development of Morong, proponents of the initiative the opportunity to be
Bataan. heard thereon. More importantly, these resolutions
ACTIONS UNDERTAKEN BY THE SB OF MORONG and/or directives were issued with grave abuse of
Henceforth, we respectfully reiterate our request to discretion. A Sangguniang Bayan resolution being an act
1. By virtue of R.A. 7227, otherwise known as the Bases deny the petition for a local initiative and/or of the aforementioned local legislative assembly is
Conversion Development Act of 1992, all actions of referendum because the exercise will just promote undoubtedly a proper subject of initiative. (Sec. 32, Art.
LGU's correlating on the above issues are merely divisiveness, counter productive and futility. VI, Constitution)
recommendatory in nature when such provisions were
already embodied in the statute. Thank you and more power. 5.02 For mandamus, pursuant to Sec. 3, Rule 65, Rules
of Court, to command the respondent Comelec to
2. Corollary to the notion, the Sangguniang Bayan of schedule forthwith the continuation of the signing of
Very truly yours,
Morong passed and approved Pambayang Kapasyahan the petition, and should the required number of
Blg. 18, Serye 1993, requesting Congress of the signatures be obtained, set a date for the initiative
(SGD.) EDILBERTO M. DE LEON within forty-five (45) days thereof.
Philippines to amend certain provisions of R.A. 7227,
Mun. Vice Mayor/Presiding Officer
wherein it reasserted its position embodied in
Pambayan Kapasyahan Blg. 08 and Blg. 12, Serye ng 5.02.1 Respondent Comelec's authority in the matter of
taong 1992, (Attached and marked as Annex "A:) which In its session of July 6, 1993, the COMELEC en banc local initiative is merely ministerial. It is duty-bound to
tackled the same issues raised by the petitioners resolved to deny the petition for local initiative on the supervise the gathering of signatures in support of the
particularly items a), b), c), e), and g). ground that its subject is "merely a resolution petition and to set the date of the initiative once the
(pambayang kapasyahan) and not an ordinance." 6 On required number of signatures are obtained.
July 13, 1993, the COMELEC en banc further resolved to
3. Item d) is already acted upon by BCDA Chairman
direct Provincial Election Supervisor, Atty. Benjamin N.
Arsenio Bartolome III in its letter to His Excellency If the required number of signatures is obtained, the
Casiano, to hold action on the authentication of
President Fidel V. Ramos, dated May 7, 1993 (Attached Comelec shall then set a date for the initiative during
signatures being gathered by petitioners. 7
and marked as Annex "B") with clarifying letter from which the proposition shall be submitted to the
BCDA Vice-Chairman Rogelio L. Singson regarding lands registered voters in the local government unit
on Mabayo and Minanga dated June 3, 1993 that only These COMELEC resolutions are sought to be set aside concerned for their approval within sixty (60) days from
lands inside the perimeter fence are envisioned to be in the petition at bench. The petition makes the the date of certification by the Comelec, as provided in
part of SBMA. following submissions: subsection (g) hereof, in case of provinces and cities,
forty-five (45) days in case of municipalities, and thirty
4. Item f), President Ramos in his marginal note over 5. This is a petition for certiorari and mandamus. (30) days in case of barangays. The initiative shall then
the letter request of Morong, Bataan Mayor Bienvenido be held on the date set, after which the results thereof
L. Vicedo, the Sangguniang Bayan and Congressman

LOCGOV CASES | MEETING 12 Page 40


shall be certified and proclaimed by the Comelec. (Sec. could have bridled the nation's downslide from Sec. 32. The Congress shall, as early as possible, provide
22, par. (h) R.A. 7160. democracy to authoritarianism to anarchy never saw for a system of initiative and referendum, and the
the light of day. exceptions therefrom, whereby the people can directly
Respondent COMELEC opposed the petition. Through propose and enact laws or approve or reject any act or
the Solicitor General, it contends that under the Local In February 1986, the people took a direct hand in the law or part thereof passed by the Congress or local
Government Code of 1991, a resolution cannot be the determination of their destiny. They toppled down the legislative body after the registration of a petition
subject of a local initiative. The same stance is assumed government of former President Marcos in a historic therefor signed by at least ten per centum of the total
by the respondent Sangguniang Bayan of Morong. 8 bloodless revolution. The Constitution was rewritten to number of registered voters, of which every legislative
embody the lessons of their sad experience. One of the district must be represented by at least three per
lessons is the folly of completely surrendering the centum of the registered voters thereto.
We grant the petition.
power to make laws to the legislature. The result, in the
perceptive words of Father Bernas, is that the new The COMELEC was also empowered to enforce and
The case at bench is of transcendental significance
Constitution became "less trusting of public officials administer all laws and regulations relative to the
because it involves an issue of first impression —
than the American Constitution." 11 conduct of an initiative and referendum. 14 Worthwhile
delineating the extent of the all important original
noting is the scope of coverage of an initiative or
power of the people to legislate. Father Bernas explains
For the first time in 1987, the system of people's referendum as delineated by section 32 Art. VI of the
that "in republican systems, there are generally two
initiative was thus installed in our fundamental law. To Constitution, supra — any act or law passed by
kinds of legislative power, original and derivative.
be sure, it was a late awakening. As early as 1898, the Congress or local legislative body.
Original legislative power is possessed by the sovereign
people. Derivative legislative power is that which has state of South Dakota has adopted initiative and
been delegated by the sovereign people to legislative referendum in its constitution 12 and many states have In due time, Congress respondent to the mandate of
bodies and is subordinate to the original power of the followed suit. 13 In any event, the framers of our 1987 the Constitution. It enacted laws to put into operation
people." 9 Constitution realized the value of initiative and the constitutionalized concept of initiative and
referendum as an ultimate weapon of the people to referendum. On August 4, 1989, it approved Republic
negate government malfeasance and misfeasance and Act No. 6735 entitled "An Act Providing for a System of
Our constitutional odyssey shows that up until 1987,
they put in place an overarching system. Thus, thru an Initiative and Referendum and Appropriating Funds
our people have not directly exercised legislative
initiative, the people were given the power to amend Therefor." Liberally borrowed from American
power, both the constituent power to amend or revise
the Constitution itself. Sec. 2 of Art. XVII provides: laws, 15 R.A. No. 6735, among others, spelled out the
the Constitution or the power to enact ordinary laws.
"Amendments to this Constitution may likewise be requirements 16 for the exercise of the power of
Section 1, Article VI of the 1935 Constitution delegated
directly proposed by the people through initiative upon initiative and referendum, the conduct of national
legislative power to Congress, thus "the legislative
a petition of at least twelve per centum of the total initiative and referendum; 17 procedure of local
power shall be vested in a Congress of the Philippines,
number of registered voters, of which every legislative initiative and referendum; 18 and their
which shall consist of a Senate and a House of
district must be represented by at least three per limitations. 19 Then came Republic Act No. 7160,
Representatives." Similarly, section 1, Article VIII of the
centum of the registered voters therein." Likewise, thru otherwise known as The Local Government Code of
1973 Constitution, as amended, provided that "the
an initiative, the people were also endowed with the 1991. Chapter 2, Title XI, Book I of the Code governed
Legislative power shall be vested in a Batasang
power to enact or reject any act or law by congress or the conduct of local initiative and referendum.
Pambansa." 10
local legislative body. Sections 1 and 32 of Article VI
provide: In light of this legal backdrop, the essential issue to be
Implicit in the set up was the trust of the people in
resolved in the case at bench is whether Pambayang
Congress to enact laws for their benefit. So total was
Sec. 1. The legislative power shall be vested in the Kapasyahan Blg. 10, serye 1993 of the Sangguniang
their trust that the people did not reserve for
Congress of the Philippines which shall consist of a Bayan of Morong, Bataan is the proper subject of an
themselves the same power to make or repeal laws.
Senate and a House of Representatives except to the initiative. Respondents take the negative stance as they
The omission was to prove unfortunate. In the 70's and
extent reserved to the people by the provisions on contend that under the Local Government Code of
until the EDSA revolution, the legislature failed the
initiative and referendum. 1991 only an ordinance can be the subject of initiative.
expectations of the people especially when former
They rely on section 120, Chapter 2, Title XI, Book I of
President Marcos wielded lawmaking powers under
xxx xxx xxx the Local Government Code of 1991 which provides:
Amendment No. 6 of the 1973 Constitution. Laws which
LOCGOV CASES | MEETING 12 Page 41
"Local Initiative Defined. — Local initiative is the legal Sec. 3. Definition of Terms — For purposes of this Act, on the disagreeing provisions between Senate Bill No.
process whereby the registered voters of a local the following terms shall mean; 17 and House Bill No. 21505 were being considered in
government unit may directly propose, enact, or the House of Representatives, viz:
amend any ordinance." (a) "Initiative" is the power of the people to propose
amendments to the Constitution or to propose and THE SPEAKER PRO TEMPORE. The Gentleman from
We reject respondents' narrow and literal reading of enact legislations through an election called for the Camarines Sur is recognized.
the above provision for it will collide with the purpose.
Constitution and will subvert the intent of the MR. ROCO. On the Conference Committee Report on
lawmakers in enacting the provisions of the Local There are three (3) systems of initiative, namely: the disagreeing provisions between Senate Bill No. 17
Government Code of 1991 on initiative and and the consolidated House Bill No. 21505 which refers
referendum. to the system providing for the initiative ad
a.1. Initiative on the Constitution which refers to a
petition proposing amendments to the Constitution. referendum, fundamentally, Mr. Speaker, we
The Constitution clearly includes not only ordinances consolidated the Senate and the House versions, so
but resolutions as appropriate subjects of a local both versions are totally intact in the bill. The Senators
a.2. Initiative on statutes which refers to a petition
initiative. Section 32 of Article VI provides in luminous ironically provided for local initiative and referendum
proposing to enact a national legislation; and
language: "The Congress shall, as early as possible, and the House of Representatives correctly provided
provide for a system of initiative and referendum, and for initiative and referendum on the Constitution and
the exceptions therefrom, whereby the people can a.3. Initiative on local legislation which refers to a on national legislation.
directly propose and enact laws or approve or petition proposing to enact a regional, provincial, city,
reject any act or law or part thereof passed by the municipal, or barangay law, resolution, or ordinance.
I move that we approve the consolidated bill.
Congress, or local legislative body . . ." An act includes a (Emphasis ours)
resolution. Black 20 defines an act as "an expression of
MR. ALBANO. Mr. Speaker.
will or purpose . . . it may denote something done . . . Similarly, its section 16 states: "Limitations Upon Local
as a legislature, including not merely physical acts, but Legislative Bodies — Any proposition on ordinance
also decrees, edicts, laws, judgments, resolves, awards, orresolution approved through the system of initiative THE SPEAKER PRO TEMPORE. What is the pleasure of
and determinations . . . ." It is basic that a law should be and referendum as herein provided shall not be the Minority Floor Leader?
construed in harmony with and not in violation of the repealed, modified or amended, by the local legislative
constitution. 21In line with this postulate, we held in In body concerned within six (6) months from the date MR. ALBANO. Will the distinguished sponsor answer
Re Guarina that "if there is doubt or uncertainty as to therefrom . . . ." On January 16, 1991, the COMELEC just a few questions?
the meaning of the legislative, if the words or also promulgated its Resolution No. 2300 entitled "In
provisions are obscure, or if the enactment is fairly Re Rules and Regulations Governing the Conduct of THE SPEAKER PRO TEMPORE. What does the sponsor
susceptible of two or more constructions, that Initiative on the Constitution, and Initiative and say?
interpretation will be adopted which will avoid the Referendum, on National and Local Laws." It likewise
effect of unconstitutionality, even though it may be recognized resolutions as proper subjects of initiatives.
MR. ROCO. Willingly, Mr. Speaker.
necessary, for this purpose, to disregard the more usual Section 5, Article I of its Rules states: "Scope of power
or apparent import of the language used." 22 of initiative — The power of initiative may be exercised
to amend the Constitution, or to enact a national THE SPEAKER PRO TEMPORE. The Gentleman will
legislation, a regional, provincial, city, municipal or please proceed.
The constitutional command to include acts (i.e.,
resolutions) as appropriate subjects of initiative was barangay law,resolution or ordinance."
MR. ALBANO. I heard the sponsor say that the only
implemented by Congress when it enacted Republic Act
There can hardly be any doubt that when Congress difference in the two bills was that in the Senate
No. 6735 entitled "An Act Providing for a System of
enacted Republic Act No. 6735 it intend resolutions to version there was a provision for local initiative and
Initiative and Referendum and Appropriating Funds
be proper subjects of local initiatives. The debates referendum, whereas the House version has none.
Therefor." Thus, its section 3(a) expressly includes
resolutions as subjects of initiatives on local confirm this intent. We quote some of the
legislations, viz: interpellations when the Conference Committee Report MR. ROCO. In fact, the Senate version provided purely
for local initiative and referendum, whereas in the
LOCGOV CASES | MEETING 12 Page 42
House version, we provided purely for national and Sec. 124. Limitations on Local Initiatives. (a) The power 5. Form of Initiative. Regarding the form of the
constitutional legislation. of local initiative shall not be exercised more than once measure, the section speaks only of "ordinance,"
a year. although the measure may be contained in a
MR. ALBANO. Is it our understanding, therefore, that resolution. If the registered voters can propose
the two provisions were incorporated.? (b) Initiative shall extend only to subjects or matters ordinances, why are they not allowed to propose
which are within the legal powers of the Sanggunians to resolutions too? Moreover, the wording of Sec. 125,
enact. below, which deals not only with ordinances but with
MR. ROCO. Yes, Mr. Speaker.
"any proposition" implies the inclusion of resolutions.
The discussion hereunder will also show support for the
MR. ALBANO. So that we will now have xxx xxx xxx
conclusion that resolutions may indeed be the subject
a complete initiative and referendum both in the of local initiative.
constitutional amendment and national legislation. This provision clearly does not limit the application of
local initiatives to ordinances, but to all "subjects or
We note that respondents do not give any reason why
MR. ROCO. That is correct. matters which are within the legal powers of the
resolutions should not be the subject of a local
Sanggunians to enact," which undoubtedly includes
initiative. In truth, the reason lies in the well known
resolutions. This interpretation is supported by Section
MR. ALBANO. And provincial as well as municipal distinction between a resolution and an ordinance —
125 of the same Code which provides: "Limitations
resolutions? i.e., that a resolution is used whenever the legislature
upon Sanggunians. — Any proposition or ordinance
wishes to express an opinion which is to have only a
approved through the system of initiative and
MR. ROCO. Down to barangay, Mr. Speaker. temporary effect while an ordinance is intended to
referendum as herein provided shall not be repealed,
permanently direct and control matters applying to
modified or amended by the sanggunian concerned
MR. ALBANO. And this initiative and referendum is in persons or things in general. 25 Thus, resolutions are not
within six (6) months from the date of the approval
consonance with the provision of the Constitution normally subject to referendum for it may destroy the
thereof . . . ." Certainly, the inclusion of the
whereby it mandates this Congress to enact the efficiency necessary to the successful administration of
word proposition is inconsistent with respondents'
enabling law, so that we shall have a system which can the business affairs of a city. 26
thesis that only ordinances can be the subject of local
be done every five years. Is it five years in the provision initiatives. The principal author of the Local
of the Constitution? Government Code of 1991, former Senator Aquilino In the case at bench, however, it can not be argued that
Pimentel, espouses the same view. In his commentaries the subject matter of the resolution of the municipality
MR. ROCO. That is correct, Mr. Speaker. For on the said law, he wrote, viz: 24 of Morong merely temporarily affects the people of
constitutional amendments to the 1987 Constitution, it Morong for it directs a permanent rule of conduct or
is every five years. 23 government. The inclusion of Morong as part of the
4. Subject Matter Of Initiative. All sorts of measures
Subic Special Economic Zone has far reaching
may be the subject of direct initiative for as long as
implications in the governance of its people. This is
Contrary to the submission of the respondents, the these are within the competence of the Sanggunian to
apparent from a reading of section 12 of Republic Act
subsequent enactment of the local Government Code enact. In California, for example, direct initiatives were
No. 7227 entitled "An Act Accelerating the Conversion
of 1991 which also dealt with local initiative did not proposed to enact a fishing control bill, to regulate the
of Military Reservations Into Other Productive Uses,
change the scope of its coverage. More specifically, the practice of chiropractors, to levy a special tax to secure
Creating the Bases Conversion and Development
Code did not limit the coverage of local initiatives to a new library, to grant a franchise to a railroad
Authority For This Purpose, Providing Funds Therefor
ordinances alone. Section 120, Chapter 2, Title IX Book I company, and to prevent discrimination in the sale of
and For Other Purposes." to wit:
of the Code cited by respondents merely defines the housing and similar bills.
concept of local initiative as the legal process whereby
the registered voters of a local government unit may Sec. 12. Subic Special Economic Zone. — Subject to the
Direct initiative on the local lever may, therefore, cover
directly propose, enact, or amend any ordinance. It concurrence by resolution of the sangguniang
all kinds of measures provided that these are within the
does not, however, deal with the subjects or matters panlungsod of the City of Olongapo and
power of the local Sanggunians to enact, subject of
that can be taken up in a local initiative. It is section the sangguniang bayan of the Municipalities of Subic,
course to the other requisites enumerated in the
124 of the same Code which does. It states: Morong and Hermosa, there is hereby created a Special
Section.
Economic and Free-port Zone consisting of the City of

LOCGOV CASES | MEETING 12 Page 43


Olongapo and the Municipality of Subic, Province of Economic Zone. In lieu of paying taxes, three percent referred to in Section 13 of this Act may also issue
Zambales, the lands occupied by the Subic Naval Base (3%) of the of the gross income earned by all working visas renewable every two (2) years to foreign
and its contiguous extensions as embraced, covered, businesses and enterprises within the Subic Special executives and other aliens possessing highly-technical
and defined by the 1947 Military Bases Agreement Economic Zone shall be remitted to the National skills which no Filipino within the Subic Special
between the Philippines and the United States of Government one percent (1%) each to the local Economic Zone possesses, as certified by the
America as amended, and within the territorial government units affected by the declaration of the Department of Labor and Employment. The names of
jurisdiction of the Municipalities of Morong and zone in proportion to their population area, and other aliens granted permanent residence status and working
Hermosa, Province of Bataan, hereinafter referred to a factors. In addition, there is hereby established a visas by the Subic Bay Metropolitan Authority shall be
as the Subic Special Economic Zone whose metes and development fund of one percent (1%) of the gross reported to the Bureau of Immigration and Deportation
bounds shall be delineated in a proclamation to be income earned by all businesses and enterprises within within thirty (30) days after issuance thereof.
issued by the President of the Philippines. Within thirty the Subic Special Economic Zone to be utilized for the
(30) days after the approval of this Act, each local development of municipalities outside the City of (h) The defense of the zone and the security of its
government unit shall submit its resolution of Olongapo and the Municipality of Subic, and other perimeters shall be the responsibility of the National
concurrence to join the Subic Special Economic Zone to municipalities contiguous to the base areas. Government in coordination with the Subic Bay
the Office of the President. Thereafter, the President of Metropolitan Authority. The Subic Bay Metropolitan
the Philippines shall issue a proclamation defining the In case of conflict between national and local laws with Authority shall provide and establish its own internal
metes and bounds of the zone as provided herein. respect to tax exemption privileges in the Subic Special security and fire fighting forces; and
Economic Zone, the same shall be resolved in favor of
The abovementioned zone shall be subject to the the latter; (i) Except as herein provided, the local government
following policies: units comprising the Subic Special Economic Zone shall
(d) No exchange control policy shall be applied and free retain their basic autonomy and identity. The cities
(a) Within the framework and subject to the mandate markets for foreign exchange, gold, securities and shall be governed by their respective charters and the
and limitations of the Constitution and the pertinent futures shall be allowed and maintained in the Subic municipalities shall operate and function in accordance
provisions of the Local Government Code, the Subic Special Economic Zone; with Republic Act No. 7160, otherwise known as the
Special Economic Zone shall be developed into a self- Local Government Code of 1991.
sustaining, industrial, commercial, financial and (e) The Central Bank, through the Monetary Board,
investment center to generate employment shall supervise and regulate the operations of banks In relation thereto, section 14 of the same law
opportunities in and around the zone and to attract and and other financial institutions within the Subic Special provides:
promote productive foreign investments; Economic Zone;
Sec. 14. Relationship with the Conversion Authority and
(b) The Subic Special Economic Zone shall be operated (f) Banking and finance shall be liberalized with the the Local Government Units. —
and managed as a separate customs territory ensuring establishment of foreign currency depository units of
free flow or movement of goods and capital within, into local commercial banks and offshore banking units of (a) The provisions of existing laws, rules and regulations
a exported out of the Subic Special Economic Zone, as foreign banks with minimum Central Bank regulation; to the contrary notwithstanding, the Subic Authority
well as provide incentives such as tax and duty-free
shall exercise administrative powers, rule-making and
importations of raw material, capital and equipment.
(g) Any investor within the Subic Special Economic Zone disbursement of funds over the Subic Special Economic
However, exportations or removal of goods from the
whose continuing investment shall not be less than Two Zone in conformity with the oversight function of the
territory of the Subic Special Economic Zone to the
hundred fifty thousand dollars ($250,000), his/her Conversion Authority.
other parts of the Philippine territory shall be subject to
spouse and dependent children under twenty-one (21)
customs duties and taxes under the Customs and Tariff
years of age, shall be granted permanent resident (b) In case of conflict between the Subic Authority and
Code and other relevant tax laws of the Philippines:
status within the Subic Special Economic Zone. They the local government units concerned on matters
shall have freedom of ingress and egress to and from affecting the Subic Special Economic zone other than
(c) The provision of existing laws, rules and regulations the Subic Special Economic Zone without any need of defense and security, the decision of the Subic
to the contrary notwithstanding, no taxes, local and special authorization from the Bureau of Immigration Authority shall prevail.
national, shall be imposed within the Subic Special and Deportation. The Subic Bay Metropolitan Authority
LOCGOV CASES | MEETING 12 Page 44
Considering the lasting changes that will be wrought in
the social, political, and economic existence of the
people of Morong by the inclusion of their municipality
in the Subic Special Economic Zone, it is but logical to
hear their voice on the matter via an initiative. It is not
material that the decision of the municipality of
Morong for the inclusion came in the form of a
resolution for what matters is its enduring effect on the
welfare of the people of Morong.

Finally, it cannot be gained that petitioners were


denied due process. They were not furnished a copy of
the letter-petition of Vice Mayor Edilberto M. de Leon
to the respondent COMELEC praying for denial of their
petition for a local initiative on Pambayang Kapasyahan
Blg. 10, Serye 1993. Worse, respondent COMELEC
granted the petition without affording petitioners any
fair opportunity to oppose it. This procedural lapse is
fatal for at stake is not an ordinary right but the
sanctity of the sovereignty of the people, their original
power to legislate through the process of initiative.
Ours is the duty to listen and the obligation to obey the
voice of the people. It could well be the only force that
could foil the mushrooming abuses in government.

IN VIEW WHEREOF, the petition is GRANTED and


COMELEC Resolution 93-1623 dated July 6, 1993 and
Resolution 93-1676 dated July 13, 1993 are ANNULLED
and SET ASIDE. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Regalado, Davide, Jr.,


Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan and Mendoza, JJ., concur.

Feliciano, Padilla, Bidin, JJ., are on leave.

LOCGOV CASES | MEETING 12 Page 45