Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

141616 March 15, 2001

CITY OF QUEZON, petitioner, vs. LEXBER INCORPORATED, respondent. YNARES-SANTIAGO, J.: Before us is a petition for review on certiorari assailing the October 18, 1999 decision of the Court of Appeals in CA-G.R. CV No. 595411 which affirmed in toto the January 26, 1998 decision of the Regional Trial Court of Quezon City in Civil Case No. Q-94-19405.2 Briefly stated, the facts are as follows On August 27, 1990, a Tri-Partite Memorandum of Agreement3 was drawn between petitioner City of Quezon, represented by its then Mayor Brigido R. Simon, Jr., respondent Lexber, Inc. and the then Municipality of Antipolo, whereby a 26,010 square meter parcel of land located in Antipolo4 was to be used as a garbage dumping site by petitioner and other Metro Manila cities or municipalities authorized by the latter, for a 5-year period commencing in January 1991 to December 1995. Part of the agreement was that the landowner, represented by respondent Lexber, shall be hired as the exclusive supplier of manpower, heavy equipment and engineering services for the dumpsite and shall also have the right of first refusal for contracting such services. This led to the drawing of the first negotiated contract5 between petitioner, represented by Mayor Simon, and respondent Lexber on September 10, 1990, whereby the latter was engaged to construct the necessary infrastructure at the dumpsite, designated as the Quezon City Sanitary Landfill, for the contract price of P4,381,069.00. Construction of said infrastructure was completed by respondent Lexber on November 25, 1991, and the contract price agreed upon was accordingly paid to it by petitioner. Meanwhile, on November 8, 1990, a second negotiated contract6 was entered into by respondent Lexber with petitioner, again represented by Mayor Simon, whereby it was agreed that respondent Lexber shall provide maintenance services in the form of manpower, equipment and engineering operations for the dumpsite for the contract price of P1,536,796.00 monthly. It was further agreed that petitioner shall pay respondent Lexber a reduced fee of fifty percent (50%) of the monthly contract price, or P768,493.00, in the event petitioner fails to dump the agreed volume of 54,000 cubic meters of garbage for any given month. On December 11, 1991, respondent was notified by petitioner, through the City Engineer, Alfredo Macapugay, Project Manager, Rene Lazaro and Mayor Simon to commence maintenance and dumping operations at the site starting on December 15, 1991.7 Respondent Lexber alleged that petitioner immediately commenced dumping garbage on the landfill site continuously from December 1991 until May 1992. Thereafter, petitioner ceased to dump garbage on the said site for reasons not made known to respondent Lexber. Consequently, even while the dumpsite remained unused, respondent Lexber claimed it was entitled to payment for its services as stipulated in the second negotiated contract.

On December 12, 1992, respondent's counsel sent a demand letter to petitioner demanding the payment of at least 50% of its service fee under the said contract, in the total amount of P9,989,174.00. In view of the idle state of the dumpsite for more than a year, respondent also sought a clarification from petitioner regarding its intention on the dumpsite project, considering the waste of equipment and manpower in the meantime, as well as its loss of opportunity for the property. Petitioner, this time acting through Mayor Ismael A. Mathay, Jr. who succeeded Mayor Simon in the interim, denied any liability under the contract on the ground that the same was invalid and unenforceable. According to Mayor Mathay, the subject contract was signed only by Mayor Simon and had neither the approval nor ratification of the City Council, and it lacked the required budget appropriation.
1wphi1.nt

Thus, a complaint for Breach of Contract, Specific Performance or Rescission of Contract and Damages was filed by respondent Lexber against petitioner on February 21, 1994 before the Regional Trial Court of Quezon City. Respondent Lexber averred that because petitioner stopped dumping garbage on the dumpsite after May 1992, Lexber's equipment and personnel were idle to its damage and prejudice. Respondent prayed that petitioner be ordered to comply with its obligations under the subject contract or, in the alternative, that the said contract be rescinded and petitioner be ordered to pay damages. On January 26, 1998, after trial on the merits, the lower court rendered judgment in favor of respondent, the dispositive portion of which states: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendant: 1. Ordering the defendant to pay the plaintiff the amount of SEVEN HUNDRED SIXTY EIGHT THOUSAND FOUR HUNDRED NINETY THREE PESOS (P768,493.00) per month starting December 15, 1991 until December 31, 1995 with legal interest starting December 16, 1992, the date defendant received plaintiffs extra-judicial demand, until defendant finally pays the entire amount; 2. Ordering defendant to pay costs of suit. The claims for attorney's fees and other damages are hereby denied for lack of merit. SO ORDERED.8 On appeal to the Court of Appeals, the said Judgment was affirmed in toto. With the denial of its Motion for Reconsideration on January 26, 2000, petitioner now comes to this Court with the instant petition arguing that the Court of Appeals gravely erred: (a) When it refused to hold that the second Negotiated Contract of November 8, 1990 is null and void ab initio, notwithstanding that the execution thereof was in violation of Secs. 85, 86 and 87 of the Auditing Code of the Philippines (PD 1445) and LOI 968. (b) When it refused to categorically hold that the said Negotiated Contract of November 8, 1990 required the prior approval of the City Council, notwithstanding the fact that the said contract would require the expenditure of public funds in the amount of P18,817,920.00 for one-year dumping operation, or the total amount of P94,089,600.00 for five years, and that it

is the City Council that is vested by the Local Government Code (BP Blg. 337) with the power to appropriate city funds to cover expenses of the City Government. (c) When it held that Petitioner started to dump garbage at the dumpsite and paid for such service, despite the fact that Respondent's evidence proved otherwise; furthermore, the Court of Appeals failed to cite any specific evidence to support said conclusions of fact. (d) When it held that the said Negotiated Contract of November 8, 1990 was ratified by the Petitioner by the aforesaid initial dumping of garbage and payment of services, overlooking the elementary doctrine that a void contract cannot be ratified. (e) When it wrongly applied an Executive Order and administrative resolution as the applicable law to govern the aforesaid contract, notwithstanding that the Auditing Code of the Philippines (PD 1445) and the Local Government Code (BP 337) then had not been repealed by any legislative enactment, nor could the said executive issuances repeal them. (f) When it held that the equities of the case should lean in favor of the respondent and thus failed to apply the doctrine that Government is not estopped to question the illegal acts of its officials. (g) When it wrongly applied the lmus case, not the Osmena case, to the present case.9 Petitioner's remonstrations can be reduced to two (2) essential arguments: First. That the second negotiated contract is null and void ab initio because its execution was done in violation of existing laws, more particularly Sections 85, 86 and 87 of Presidential Decree No. 1445 (otherwise known as the Auditing Code of the Philippines) and Section 177 (b) of Batas Pambansa Blg. 337 (also known as the Local Government Code of 1983); and Second. That the facts and evidence do not support the Court of Appeals, conclusion that, notwithstanding the lack of appropriation, subsequent acts of the petitioner constituted a ratification of the subject negotiated contract. The issue of whether or not the subject negotiated contract is null and void ab initio will be discussed first. Petitioner insists that the subject contract failed to comply with the mandatory requirements of Presidential Decree No. 1445, otherwise known as the Auditing Code of the Philippines. Section 85 thereof provides: Section 85. Appropriation before entering into contract. - (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor, the unexpected balance of which, free of other obligations, is sufficient to cover the proposed expenditure; (2) Notwithstanding this provision, contracts for the procurement of supplies and materials to be carried in stock may be entered into under regulations of the Commission provided that when issued, the supplies and materials shall be charged to the proper appropriation account. (Underscoring ours) Section 86 of PD 1445 also provides as follows:

Section 86. Certificate showing appropriation to meet contract. - Except in a case of a contract for personal service, for supplies for current consumption or to be carried in stock not exceeding the estimated consumption for three months, or banking transactions of government-owned or controlled banks, no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting official or the agency concerned shall have certified to the officer entering into obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure on account thereof, subject to verification by the auditor concerned. The certification signed by the proper accounting official and the auditor who verified it, shall be attached to and become an integral part of the proposed contract, and the sum so certified shall not thereafter be available for expenditure for any other purpose until the obligation of the government agency concerned under the contract is fully extinguished, (Underscoring ours) Petitioner stresses that failure to comply with the requirements underlined in Sections 85 and 86 of PD 1445 rendered the subject contract void, invoking Section 87 of PD 1445 which provides: Section 87. Void contract and liability of officer. - Any contract entered into contrary to the requirements of the two immediately preceding sections shall be void, and the officer or officers entering into the contract shall be liable to the government or other contracting party for any consequent damage to the same extent as if the transaction had been wholly between private parties. Is a contract entered into by the city mayor involving the expenditure of public funds by the local government without prior appropriation by the city council valid and binding? Petitioner insists that the answer is in the negative, arguing that there is no escaping the stringent and mandatory requirement of a prior appropriation, as well as a certification that funds are available therefor. If we are to limit our disquisition to the cited provisions of Presidential Decree No. 1445, or the Auditing Code of the Philippines, in conjunction with Section 177 (b) of Batas Pambansa Blg. 337, or the Local Government Code of 1983, which empowered the Sangguniang Panlungsod to "appropriate funds for expenses of the city government, and fix the salaries of its officers and employees according to law," there would be no debate that prior appropriation by the city council and a certification that funds are available therefor is indeed mandatorily required. There is no denying that Sections 85 and 86 of P.D. 1445 (Auditing Code of the Philippines) provide that contracts involving expenditure of public funds: 1) can be entered into only when there is an appropriation therefor; and 2) must be certified by the proper accounting official/agency that funds have been duly appropriated for the purpose, which certification shall be attached to and become an integral part of the proposed contact. However, the very same Presidential Decree No. 1445, which is the cornerstone of petitioner's arguments, does not provide that the absence of an appropriation law ipso facto makes a contract entered into by a local government unit null and void. Section 84 of the statute specifically provides: Revenue funds shall not be paid out of any public treasury or depository except in pursuance of an appropriation law or other specific statutory authority. (Underscoring ours)

Consequently, public funds may be disbursed not only pursuant to an appropriation law, but also in pursuance of other specific statutory authority, i.e., Section 84 of PD 1445. Thus, when a contract is entered into by a city mayor pursuant to specific statutory authority, the law, i.e., PD 1445 allows the disbursement of funds from any public treasury or depository therefor. It can thus be plainly seen that the law invoked by petitioner Quezon City itself provides that an appropriation law is not the only authority upon which public funds shall be disbursed. Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract without legal authority. The Local Government Code of 1983, or B.P. Blg. 337, which was then in force, specifically and exclusively empowered the city mayor to "represent the city in its business transactions, and sign all warrants drawn on the city treasury and all bonds, contracts and obligations of the city."10 Such power granted to the city mayor by B.P. Blg. 337 was not qualified nor restricted by any prior action or authority of the city council. We note that while the subsequent Local Government Code of 1991,11 which took effect after the execution of the subject contracts, provides that the mayor's representation must be "upon authority of the sangguniang panlungsod or pursuant to law or ordinance,"12 there was no such qualification under the old code. We must differentiate the provisions of the old Local Government Code of 1983, B.P. Blg. 337, which was then in force, from that of the Local Government Code of 1991, R.A. No.7160, which now requires that the mayor's representation of the city in its business transactions must be "upon authority of the sangguniang panlungsod or pursuant to law or ordinance" (Section 455 [vi]). No such prior authority was required under B.P. Blg. 337. This restriction, therefore, cannot be imposed on the city mayor then since the two contracts were entered into before R.A. No.7160 was even enacted. Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to support the contracts, neither does said law prohibit him from entering into contracts unless and until funds are appropriated therefor. In fact, it is his bounden duty to so represent the city in all its business transactions. On the other hand, the city council must provide for the "depositing, leaving or throwing of garbage"13 and to appropriate funds for such expenses.14{Section 177 [b]). It cannot refuse to so provide and appropriate public funds for such services which are very vital to the maintenance of cleanliness of the city and the good health of its inhabitants. By entering into the two contracts, Mayor Simon did not usurp the city council's power to provide for the proper disposal of garbage and to appropriate funds therefor. The execution of contracts to address such a need is his statutory duty, just as it is the city council's duty to provide for said services. There is no provision in B.P. Blg. 337, however, that prohibits the city mayor from entering into contracts for the public welfare, unless and until there is prior authority from the city council. This requirement was imposed much later by R.A. No. 7160, long after the contracts had already been executed and implemented. Even the very Charter of Quezon City,15 more particularly Section 9(f), Section 12(a) and Section 12(m) thereof, simply provide that the mayor shall exercise general powers and duties, such as signing "all warrants drawn on the city treasurer and all bonds, contracts, and obligations of the city,"16 even as it grants the City Council the power, by ordinance or resolution, "to make all appropriations for the expenses of the government of the city,"17 as well as "to prohibit the throwing or depositing of offal, garbage, refuse, or other offensive matter in the same, and to provide for its collection and disposition x x x."18 While the powers and duties of the Mayor and the City Council are clearly delineated, there is nothing in the cited provisions, nor even in the statute itself, that requires "prior authorization by the city council by proper enactment of an ordinance" before the City Mayor can enter into contracts.

Private respondent Lexber, asserts that the subject contract was entered into by Mayor Simon in behalf of the Quezon City government pursuant to specific statutory authority, more particularly the provisions of Executive Order No. 392. In accordance with Article XVIII, Section 8 of the 1987 Constitution, then President Corazon C. Aquino issued E.O. No. 392 constituting the Metropolitan Manila Authority (or MMA) to be composed of the heads of the four (4) cities and thirteen (13) municipalities comprising the Metropolitan Manila area. The said Executive Order empowered the MMA to "have jurisdiction over the delivery of basic urban services requiring coordination" in the Metropolitan area, including "sanitation and waste management."19 To fulfil this mandate, the MMA, through Resolution No. 17, Series of 1990, resolved that pursuant to Section 2 of E.O. No. 392, the: x x x LGUs remitting their contributions to the MMA within the prescribed period shall be entitled to a financial assistance in all amount equivalent to 20% of their remittances provided that the amount is used exclusively to augment the effective delivery of basic urban services requiring coordination. The Metropolitan Manila Council (or MMC) also issued Resolution No. 15, Series of 1991, authorizing the Chairman of the MMC to enter into a memorandum of agreement or (MOA) with any local chief executive in Metropolitan Manila for the purpose of managing garbage collection and disposal, among other basic urban services. Taking their cue from Executive Order No. 392 and the pertinent resolutions of the MMA and MMC, the then Mayors of Quezon City and the Municipality of Antipolo entered into a tripartite MOA with respondent Lexber, towards the establishment of the proposed Quezon City Landfill Disposal System. It is true that the first negotiated contract between Mayor Simon, Jr. and respondent Lexber, which provided for the necessary infrastructure of the dumpsite, was executed without prior authority or appropriation by the city council. Nevertheless, recognizing the necessity, if not the urgency, of the project, petitioner honored the said contract and paid respondent Lexber the contract price of P4,381,069.00.20 Respondent Lexber avers that immediately following the completion of the project in December 1991, petitioner in fact availed of the facilities by delivering and dumping garbage at the site in accordance with the stipulations in the second negotiated contract. And yet, after having spent millions of public funds to build the necessary infrastructure, as well as for site development of the sanitary landfill, petitioner, under the newly-installed administration of Mayor Ismael Mathay, Jr., refused to honor the second negotiated contract by: (1) discontinuing the city's use of the sanitary landfill; (2) refusing to pay respondent Lexber for services already rendered from December of 1991 to May of 1992; and (3) denying any liability under the second negotiated contract, on the grounds that the same was without prior authority of the city council, and that it was neither approved nor ratified by the said body. Moreover, Mayor Mathay, Jr. refused to pay its obligation to respondent Lexber since no provision therefor was made in the 1992/1993 annual city budget. The trial court ruled that while there may not have been prior authority or appropriation to enter into and implement the second negotiated contract, the project denominated as "Quezon City Landfill Disposal System" was duly supported by a Certificate of Availability of Funds dated April 4, 1991 signed by the Quezon City Auditor, Reynaldo P. Ventura, and Treasurer, Montano L. Diaz, stating as follows: Pursuant to the provisions of Section 86 of P.D. No. 1445, LOI 968 and Section 46 of P.D. No. 177, I hereby certify that funds have been duly appropriated and alloted under Advice of Allotment No. 1 and 2 dated March 31, 1991 and in the total amount of P2,620,169.00;

P11,783,399.00 covering the contract entered into with Lexber, Inc. with business address at 65 Panay Avenue, Quezon City said amount is available for expenditure on account thereof.21 The existence of said document led the trial court to conclude thus: However, a close examination of the Certificate of Availability of Funds dated December 3, 1990 shows that the appropriated amounts of P1,700,000.00, 2,641,922.00, and P40,000.00 totaled P4,381,922.00 and not P4,341,922.00, which amount is, in fact, P853.00 more than the contract price or Negotiated Contract dated September 10, 1990. This only shows that as of April 4, 1991, there was sufficient appropriation to cover at least for a period of three (3) months, in order to comply with the provisions of Section 86 of PD 1445. Moreover, any payment made will comply with the provision of Section 84 of PD 1445 which states that: "Revenue funds shall not be paid out of any public treasury or depository except in pursuance of an appropriation law or other specific statutory authority." In any case, the defendant city can easily make available the necessary funds at the beginning of the year in the general appropriation to cover the probable expenses which it would have to incur, considering that pursuant to Resolution No, 72, Series of 1990 of the Metropolitan Manila Authority, the Local Government Units are entitled to a financial assistance in an amount equivalent to 20% of their remittances provided that the amount is used exclusively to augment the effective delivery of basic services requiring coordination. In fact, the amount of FIVE MILLION PESOS (P5,000,000.00) has already been set aside in order to be available to augment garbage collection and disposal in Quezon City. It must be noted that the Negotiated Contract dated November 8, 1990 is not ipso facto absolutely null and void. The subject thereof is perfectly within the authority of the city government. It is pursuant to the Tripartite Agreement entered into between the plaintiff, the defendant, and the Municipality of Antipolo. The plaintiff was given the exclusive right to exercise acts stated in the two negotiated contracts, which are entered into to further carry out and implement the provisions of the Tripartite Agreement.22 The Court of Appeals affirmed the trial court's findings that the second negotiated contract was executed by virtue of a specific statutory authority, or pursuant to law, holding that: Executive Order No. 392 (constituting the Metropolitan Manila Authority, providing for its powers and functions and for other purposes) and pertinent Resolution No. 72, Series of 1990 of MMA, and Resolution No. 15, Series of 1991 of MMC, find application and therefore should govern the subject transactions. Worthy to stress at this point is the fact that pursuant to Sec. 1, E.O. 392, the then Metropolitan Manila Authority was tasked, among others, with the delivery of basic services in the Metropolitan Area, whose services include garbage collection and disposal. To carry out this mandate and effectively deliver other basic urban services requiring coordination of local government units, the Metropolitan Manila Authority through its Resolution No.72, Series of 1990, granted financial assistance to all local government units (LGUs) comprising Metropolitan Manila in an amount equivalent to 20% of their remittances as provided under E.O. 392. Likewise, the Metropolitan Manila Council, in its Resolution No. 15, Series of 1991, resolved to authorize the Chairman or the MMC to enter into memorandum of Agreement (MOA) with the Local Chief Executives in Metro Manila for the purpose of, among other things, the management of garbage collection and its disposal.

The foregoing authorities therefore fully clothed Mayor Brigido Simon, Jr. with the authority to enter and sign the subject contract for and in behalf of the city government even without express authority from the City Council.23 While it is true that the MMA has no legislative power, E.O. No. 392 specifically empowered the MMA to "have jurisdiction over the delivery of basic urban services requiring coordination," such as "sanitation and waste management."24 Said E.O. did not repeal pertinent provisions of B.P. 337, but specifically exempts the MMA from the application of E.O. 39225 (Section 11 of E.O. 392). There is no conflict as well with the provisions of P.D. No. 1445 because Sec. 84 thereof also recognizes appropriation by "other statutory authority." E.O. 392 and MMA Resolutions Nos. 72 and 15 allowed for direct coordination between the MMA and the covered local government units to expedite the effective delivery of basic services requiring coordination, such as collection and disposal of garbage. To this end, the MMA Resolutions (series of 1990) granted financial assistance to all covered local government units in an amount equivalent to 20% of their remittances to fund the delivery of said services, pursuant to the provisions of Sec. 7 of E.O. No. 392: "x x x city and municipal treasurers of the local government units comprising Metropolitan Manila shall continue to collect all revenues and receipts accruing to the Metropolitan Manila Commission and remit the same to the Authority; Provided that such income collections as well as the share of the authority from the regular sources of revenue in the General Fund of the city or municipality as local counterpart for the integrated basic services and developmental projects shall be treated as a trust fund in their account. Provided further that the remittance thereof shall be effected within the first thirty (30) days following the end of each month. x x x" There was, thus, no justifiable reason for petitioner not to allocate or appropriate funds at the start of each fiscal year considering that a trust fund had been established to pay for "the effective delivery of basic urban services requiring coordination," foremost of which is the collection and disposal of garbage. LOI No. 968, signed by then President Marcos on December l7, 1979, also provides in part that "all contracts for capital projects and for supply of commodities and services, including equipment, maintenance contracts, and other agreements requiring payment which are chargeable to agency current operating on capital expenditure funds, shall be signed by agency heads or other duly authorized official only when there are available funds. The chief accountant of the contracting agency shall sign such contracts as witness and contracts without such witness shall be considered as null and void." However, this requirement does not apply to contracts executed by local chief executives since the said LOI No. 968 was directed only to "Ministries and Heads/Chief Accountants of Ministry, Bureau, Office, Agency of the National Government, including State Universities and Colleges, and the Chairman, Commission on Audit." Quezon City, or any urbanized city for that matter, cannot be considered a ministry, bureau, office or agency of the national government; neither is the city mayor a minister or head of a ministry, bureau, office or agency of the national government. Hence, the mayor of Quezon City is not covered by LOI No. 968. The prevailing law in this particular instance is the Local Government Code of 1983 or B.P. Blg. 337. Therefore, we find no cogent reason to disturb the conclusions of the trial court as affirmed by the Court of Appeals in this regard. It is clear that the second negotiated contract was entered into by

Mayor Brigido Simon, Jr. pursuant to law or specific statutory authority as required by P. D. No. 1445. There is also no merit in petitioner's claim that there was no appropriation therefor, for it is evident that even as early as April 4, 1991, funds which were certified to as available had been allocated for use in the first few months operation of the sanitary landfill. The problem arose only because the new administration unjustifiably refused to abide by the stipulations in the second negotiated contract. Hence, petitioner's arguments on this issue fail to convince this Court that the second negotiated contract was null and void ab initio for lack of prior appropriation or authority on the part of Mayor Brigido Simon, Jr. It is of no moment that the certificate referred to by the trial court did not state "that the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure on account thereof."20 The Certificate of Availability of Funds,27 though dated December 3, 1990, merely showed that funds for the Landfill Disposal System was available. Even if the surplus amount was just sufficient to cover at least three (3) months of operations as of April 4, 1991, said monthly payments were not due yet as the infrastructure was still being completed. The project was completed in December of 1991 and dumping was to commence only thereafter. Thus, the funds to cover the 1992 fiscal year could have been made available and appropriated therefor at the beginning of said year. That the Quezon City government later refused to appropriate and approve payments to respondent Lexber under the contract despite its use of the facilities for several months in 1992, is not respondent's fault, and being the aggrieved party, it cannot be made to suffer the damage wrought by the petitioner's failure or refusal to abide by the contract. On the issue of subsequent ratification by petitioner, the Court of Appeals held: Granting but without conceding that Mayor Brigido Simon, Jr. needs to secure prior authorization from the City Council for the enforceability of the contracts entered into in the name of the City government, which he failed to do according to the appellant, We believe that such will not affect the enforceability of the contract because of the subsequent ratification made by the City government. Thus, when appellant City government, after the construction by the appellee of the dumpsite structure in accordance with the contract plans and specifications, started to dump garbage collected in the City and consequently paid the appellee for the services rendered, such acts produce and constitute a ratification and approval of the negotiated contract and necessarily should imply its waiver of the right to assail the contract's enforceability.28 We are not dissuaded by petitioner's arguments that there can be no ratification due to the absence of an explicit or tacit approval of the second negotiated contract. At the outset, the issue raised by petitioner that the subject contract is null and void ab initio, and therefore not capable of ratification, has been laid to rest by the inevitable conclusion that the said contract is valid and binding. Consequently, ratification of the subject contract is not necessary. Be that as it may, it cannot be denied that there was constructive ratification on the part of petitioner. The records show that upon completion of the infrastructure and other facilities, petitioner, albeit still under the administration of Mayor Brigido Simon, Jr., started to dump garbage in the premises. In fact, on December 11, 1991, a Notice to Commence Work,29 implementing the contract for the maintenance of the sanitary landfill, starting December 15, 1991 to December 31, 1995, was issued by, said Mayor, as recommended by Project Manager Rene R. Lazaro and City Engineer Alfredo Macapugay.

The records also reveal that petitioner issued Disbursement Vouchers30 of various amounts covering the period between March 1, 1992 to April 30, 1992 for the services rendered by the Mud Regal Group, Incorporated to haul garbage to the sanitary landfill. The said disbursement vouchers were passed in audit and duly approved and paid by petitioner. These are facts and circumstances on record which led the trial court, the appellate court, and this Court to affirm the conclusion that petitioner had actually ratified the subject contract.31 Also part of the evidence on record are receipts of various amounts paid by respondent Lexber to Mud Regal Group, Inc. for the supply of earth moving equipment used by Lexber to maintain the sanitary landfill covering the period from December 1991 to August 1992.32 There is also a collection letter from Mud Regal Group, Inc. addressed to respondent Lexber for unpaid bills covering the period from September to December 1992.33 While corresponding vouchers were prepared by petitioner to pay respondent Lexber for work accomplished by the latter in the maintenance of the sanitary landfill for the period spanning December 1991 to June 1992,34 these were never processed and approved for payment since action thereon was overtaken by the change in leadership of the city government. By then, the new dispensation had already discontinued using the sanitary landfill for reasons it did not make known to respondent Lexber. It is evident that petitioner dealt unfairly with respondent Lexber. By the mere pretext that the subject contract was not approved nor ratified by the city council, petitioner refused to perform its obligations under the subject contract. Verily, the same was entered into pursuant to law or specific statutory authority, funds therefor were initially available and allocated, and petitioner used the sanitary landfill for several months. The present leadership cannot unilaterally decide to disregard the subject contract to the detriment of respondent Lexber. The mere fact that petitioner later refused to continue dumping garbage on the sanitary landfill does not necessarily prove that it did not benefit at the expense of respondent Lexber. Whether or not garbage was actually dumped is of no moment, for respondent Lexber's undertaking was to make available to petitioner the landfill site and to provide the manpower and machinery to maintain the facility. Petitioner, by refusing to abide by its obligations as stipulated in the subject negotiated contract, should be held liable to respondent Lexber in accordance with the terms of the subject contract. Petitioner's refusal to abide by its commitments gave rise to an untenable situation wherein petitioner effectively denied the existence and validity of the subject contract even while respondent Lexber was still bound by it. This situation is inconsistent with the principle that obligations arising from contracts have the force of law between the contracting parties and each party is bound to fulfill what has been expressly stipulated therein.35 Only respondent Lexber was bound by the contract while petitioner acted as if it were free therefrom.36 The Court of Appeals held that: Moreover, the contention of appellant, if sustained, will undeniably result in grave injustice and inequity to appellate Lexber, Inc. The records will reveal that appellee never solicited upon the City government to utilize its properties for a landfill site, as appellee originally conceived of devoting its property to a more viable undertaking, bamboo plantation in partnership with foreign firm. On the other hand, it was the City government, then beset with serious garbage problem that enticed and convinced Lexber, Inc. to offer its properties as a landfill site, with the assurance of the opportunities contained in the tri-partite agreement. When appellee acceded to their request, three contracts unilaterally prepared by the City government was presented to him, the terms and conditions of which were all established and prescribed by appellant, and appellee's mere participation in the contract's perfection was simply the affixing of his signature therein.

Clearly, the equities of the case are with appellee Lexber, Inc. Even fair dealing alone would have required the appellant to abide by its representations, which it did in the inception, but was later dishonored by the new administration of Mayor Mathay, Jr. Appellee faithfully performed its undertakings set forth in the contract, upon the appellant's assurance that sufficient funds shall come from the city's statutory contribution to the MMA. Had it not (sic) for the said assurance, Lexber, Inc. for sure, would not have ventured into such costly business undertaking. No one in his right frame of mind would have entered into such kind of contract and invest his fortune unless assured of the availability of funds to compensate its financial investment. As correctly pointed out by the court a quo, appellant having taken advantage of and benefited from the appellee through the assailed negotiated contract shall not be permitted to attack it on the ground that the contract did not bear the necessary approval.37 Finally, we come to the issue raised by petitioner that the Court of Appeals gravely erred in holding that the Imuscase, not the Osmena case, is applicable to the instant controversy. We note that the Court of Appeals did not discuss either case but merely adopted the exhaustive discussion of the trial court on the matter. Before the courta quo, herein respondent Lexber relied on the ruling of this Court in the case of Imus Electric Company v. Municipality of Imus,38 wherein this Court ruled: The defendants contend that the contract in question is null and void on the ground that the former municipal council of Imus approved it without having the necessary funds to pay for the value of the service to be rendered by the plaintiff for a period often (10) years, which amounted to P24,300, and without the provincial treasurer's previous certificate to the effect that said funds have been appropriated and were available, in violation of the provisions of sections 606, 607 and 608 of the Regional Administrative Code of 1917. The above-cited legal provisions read as follows: SEC. 606. Appropriation antecedent to making of contract. - No contract involving the expenditure of public funds shall be made until there is an appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient to cover the proposed expenditure. This provision shall not, however, be construed to prevent the purchasing and carrying of supplies in stock, under the regulations of the Bureau of Audits, provided that when issued such supplies shall be charged to the proper appropriation account. SEC. 607. Certificate showing appropriation to meet contract. - Except in the case of a contract for personal service or for supplies to be carried in stock, no contract involving an expenditure by the Insular Government of three thousand pesos or more shall be entered into or authorized until the Insular Auditor shall have certified to the officer entering into such obligation that funds have been duly appropriated for such purpose and that the amount necessary to cover the proposed contract is available for expenditure on account thereof. When application is made to the Insular Auditor for the certificate herein required, a copy of the proposed contract or agreement shall be submitted to him accompanied by a statement in writing from, the officer making the application showing all obligations not yet presented for audit which have been incurred against the appropriation to which the contract in question would be chargeable; and such certificate, when signed by the Auditor, shall be attached to and become a part of the proposed contract, and the sum so certified shall not

thereafter be available for expenditure for any other purpose until the Government is discharged from the contract in question. Except in the case of a contract for supplies to be carried in stock, no contract involving the expenditure by any province, municipality, township, or settlement of two thousand pesos or moreshall be entered into or authorized until the treasurer of the political division concerned shall have certified to the officer entering into such contract that funds have been duly appropriated for such purpose and that the amount necessary to cover the proposed contract is available for expenditure on account thereof. Such certificate, when signed by the said treasurer, shall be attached to and become a part of the proposed contract and the sum so certified shall not thereafter be available for expenditure for any other purpose until the contract in question is lawfully abrogated or discharged. For the purpose of making the certificate hereinabove required ninety per centum of the estimated revenues and receipts which should accrue during the current fiscal year, but which are yet uncollected, shall be deemed to be in the treasury of the particular branch of the Government against which the obligation in question would create a charge. SEC. 608, Void contract; Liability of officer. - A purported contract entered into contract to the requirements of the next preceding section hereof shall be wholly void, and the officer assuming to make such contract shall be liable to the Government or other contracting party for any consequent damage to the same extent as if the transaction had been wholly between private parties. (Underscoring ours) The defendants contend that the additional appropriation made by the then municipal council was inadequate on the ground that it was the duty of the latter to appropriate funds for the whole terms of the contract and that the contract in question falls within the prohibition of section 608 because in reality there was no appropriation for the sum of P24.300, nor did the provincial treasurer certify that such appropriation was made and that the funds for the same were available. (Underscoring ours) The inconsistency of the defendants' claim becomes obvious merely by taking into consideration that the contract entered into by the parties was for the sale of electric current at the rate of P4.50 monthly for, every lamp or light of 50 watts, or the sum of P201.50 every month. Under this agreement, the municipality of Imus was not found, nor is it bound, to pay the price of the electric current until the same has been furnished and inasmuch as the period of one month was made the basis thereof, there is no doubt but that neither is the said municipality obliged to pay for the current except at the end of every month. It is true that the duration of the contract was fixed at ten (10) years, a period which was accepted by the municipality on the ground that only under the terms of the contract and the law, the municipality was not bound to make advanced payments and, consequently, there was no reason for it to appropriate funds for the said public service except for a period of one month or one year at most, if it had sufficient funds, in order to comply with the provisions of section 2296 of the Revised Administrative Code, which requires that municipalities should. at the beginning of every year, make a general appropriation containing the probable expenses which, they would have to incur. (Emphasis supplied) Petitioner, on the other hand, argued that the above-quoted ruling is no longer applicable, citing this Court's ruling in the more recent case of Osmea v. Commission on Audit,39 to wit:

The Auditing Code of the Philippines (P. D. 1445) further provides that no contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor and the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure on account thereof. Any contract entered into contrary to the foregoing requirements shall be VOID. Clearly then the contract entered into by the former Mayor Duterte was void from the very beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void, and unenforceable in COA's 2nd Indorsement, dated September 4, 1986. The COA declared and we agree, that: The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the execution of any government contract involving the expenditure of public funds by all government agencies at all levels. Such contracts are not to be as final and binding unless a certification as to the funds availability is issued (Letter of Instruction No. 767, s. 1978). Antecedent advance appropriation is thus essential to government liability on contracts. This contract being violative of the legal requirement aforequoted, the same contravenes Sec. 85 of PD. 1445 and is null and void by virtue of Sec. 87. The trial court, which was affirmed by the Court of Appeals, concluded that: The contention of defendant that the Imus case is no longer applicable in view of the explicit provisions of PD 1445 is without merit. The prohibitions expressed in Sections 85, 86, and 87 of PD 1445 are already embodied in the provision of Revised Administrative Code, specifically Sections 606, 607 and 608, yet, the Supreme Court treated the contract therein as valid and required the defendant municipality to comply with its obligation despite the absence of prior approved appropriation at the time of the execution of the contract. The reason is that the obligation is not payable until the performance of the services contracted. That is the difference between the "Imus case" and the "Osmena case." In the former, the obligation to be rendered is the furnishing or sale of electric current which the defendant municipality is not bound to pay until the same has been furnished. While in the latter, the contract is for the construction of a modern abattoir. The amount payable is already fixed at the time the contract was executed. Moreover, what made the Supreme Court declare the contract entered therein as invalid is the attainment of the finality of the findings of the Commission on Audit, which the petitioner mayor previously invoked. Thus, the Highest Tribunal said, and this Court quotes: As a matter of fact, the City of Cebu relied on the above pronouncement and interposed the same as its affirmative defense, so much so that petitioner cannot now assert that it was void having been issued in excess of COA 's jurisdiction. A party cannot invoke the jurisdiction of a court or an administrative body to secure affirmative relief against his opponent and after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction. It is not right for a party who has

affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny the same jurisdiction to escape a penalty. Besides, neither the petitioner nor HFCCI questioned the ruling of COA declaring the invalidity of the abattoir contract, thereby resulting in its finality even before the civil case was instituted. Petitioner could have brought the case to the Supreme Court on a petition for certiorari within thirty days from receipt of a copy of the COA decision in the manner provided by law and the Rules of Court. A decision of the Commission or any of its Auditor not appealed within the period provided by law, shall be final and executory.40 Contrary to petitioner's arguments, the facts in the Osmea case are not parallel to the facts in the instant case. While in the former the construction of an abattoir entailed the payment in full of a fixed amount, the case at bar involved a contract for services still to be rendered which was payable on a monthly basis, just as in the Imuscase. In the latter case, the Supreme Court did not declare the contract null and void ab initio for the reason that appropriation for the project can be made subsequent to the execution of the contract. Consequently, the ruling in the Imus case is germane to the instant case. Furthermore, the trial court noted that while herein petitioner would attack the subject contract for being fatally defective, the Commission on Audit did not declare the said contract as null and void, unlike in the Osmea case where the questioned contract was declared invalid by the COA. Hence, the ruling in the Osmea case finds no application in the instant controversy. While the contracts were admittedly negotiated contracts, this fact was never raised by the petitioner before the trial court, Court of Appeals, and in the instant petition. The question of the validity of the said contracts never hinged on the fact that there was no public bidding. What is on record is that it was Mayor Simon who initiated the negotiations to convince respondent to allow the use of its property as a dumpsite. Public bidding may have been dispensed with, not only because "time is of the essence" but in recognition of the reality that offering property to be used as a dumpsite is not an attractive nor lucrative option for property owners. This reality is all the more glaring in the current situation where Metro Manila local government units are seemingly unable to cope with the disastrous lack of garbage dumping sites. A major part of the problem is that no one wants to be the dumping ground of someone else's garbage. This problem is compounded by recent events where tragedy has befallen scavengers and residents in a Quezon City dumpsite that should have been closed years ago. It would no longer be prophetic to say that had Quezon City used the subject dumpsite and discontinued the use of the Payatas dumpsite way back in 1991, tragedy therein would have been averted. Finally, petitioner's refusal to honor the contract is not only contrary to law, but also grossly unfair to respondent Lexber. It was petitioner that first offered and later persuaded respondent Lexber to convert the latter's property into a sanitary landfill for petitioner's exclusive use. While the property could have been used for other more lucrative and pleasant purposes, petitioner convinced respondent Lexber by its assurances and stipulations in the contract. In turn, respondent Lexber relied on petitioner to abide by their contract, only to be rebuffed after petitioner had already taken initial advantage of the facilities. By virtue of the infrastructure intended for the sanitary landfill that was erected thereon, respondent Lexber could not divert its use to other purposes. It is but fair that respondent Lexber be compensated for the financial losses it has incurred in accordance with the obligation of petitioner as stipulated in the second negotiated contract. WHEREFORE, in view of all the foregoing, the Decision of the Court of Appeals in CA-G.R. CV No. 59541 affirming the judgment of the Regional Trial Court of Quezon City, Branch 220 in Civil Case

No. Q-94-19405 is herebyAFFIRMED in toto. The instant petition for review is DENIED for lack of merit. No costs. SO ORDERED.
1wp hi1.n

Davide, Jr., Puno, Kapunan, and Pardo, JJ., concur

Republic of the Philippines SUPREME COURT Baguio City FIRST DIVISION G.R. No. 141307 March 28, 2001 PURTO J. NAVARRO and DANNY B. TAMAYO, petitioners, vs. COURT OF APPEALS and ADOLFO AQUINO, ROLANDO LALAS, ABRAHAM MORALES, BLANDO QUINTO, ROMEO VISPERAS, ANTONIO PENULIAR, EDUARDO ABULENCIA, EMILIO PENULIAR, JR., ERNESTO SERAPION, VICTORIO LALANGAN, ANTONIO BURGUILLOS, MIGUEL JIMENEZ, and ELPIDIO VILLANUEVA,respondents. KAPUNAN, J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing as erroneous the decision of the Court of Appeals, Fourth Division,1 dated October 7, 1999 in CA-G.R. SP No. 5475 which granted the petition for certiorari filed by herein respondents and declared as null and void the appointment of herein petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan, Pangasinan. The facts are undisputed. In the May 11, 1997 local elections, the following officials were elected to office in the Municipality of Mapandan, Pangasinan:
Cesar M. Calimlim

Mayor Vice-Mayor

Lakas NUCD-KAMPI Lakas NUCD-KAMPI

Baltazar Aquino

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

1. Danny B. Tamayo 2. Rolando S. Soriano 3. Leopoldo C. Biagtan 4. Florentino Z. Lalas 5. Mamerto Eden, Jr. 6. Victorio C. Lalangan 7. Judy A. Pascual 8. Rolando Lalas

REFORMA-LM REFORMA-LM REFORMA-LM REFORMA-LM REFORMA-LM LAKAS-NUCD-KAMPI REFORMA-LM LAKAS-NUCD-KAMPI

On March 25, 1999, Mayor Cesar Calimlim died. A vacancy was thus created in the Office of the Mayor so by operation of law, Section 44 of Republic Act 7160, otherwise known as the Local Government Code of 1991, then Vice-Mayor Baltazar Aquino succeeded him. Accordingly, the highest-ranking member of the Sangguniang Bayan,i.e. the one who garnered the highest number of votes, was elevated to the position of the Vice-Mayor, pursuant to the same law. This was petitioner Danny B. Tamayo who belonged to the REFORMA-LM political party. Since a vacancy occurred in the Sangguniang Bayan by the elevation of petitioner Tamayo to the office of the Vice-Mayor, Governor Victor Agbayani of Pangasinan appointed herein petitioner Purto J. Navarro as Member of the Sangguniang Bayan. Navarro belonged to the same political party as that of petitioner Tamayo. Private respondents filed Civil Case No. 99-12958-D to nullify the appointment of petitioner Navarro before the Regional Trial Court of Dagupan City, Branch 44 presided by Judge Crispin Laron. Their motions for the issuance of a temporary restraining order and for the inhibition of Judge Laron having been denied, private respondents filed a Petition for Review on Certiorari with this Court. In a Resolution dated August 25, 1999, this Court referred the case to the Court of Appeals due to the hierarchy of courts. Private respondents argued before the Court of Appeals that it was the former vice-mayor, succeeding to the position of the mayor, who created the permanent vacancy in the Sanggunian Bayan because under the law he was also a member of the Sanggunian. Thus, the appointee must come from said former vice-mayors political party, in this case, the Lakas-NUCD-Kampi. Petitioners, on the other hand, contended that it was the elevation of petitioner Tamayo, who was the highest-ranking member of the Sanggunian Bayan, to the office of the Vice-Mayor which resulted in a permanent vacancy in the Sanggunian Bayan. Pursuant to Section 45 (b) of RA 7160, the person to be appointed to the position vacated by him should come from the same political party affiliation as that of petitioner Tamayo. Hence, the appointment extended by Governor Agbayani to petitioner Navarro, who was a member of and recommended by the REFORMA-LM, is valid. The Court of Appeals in a decision dated October 7, 1999 resolved the petition in favor of private respondents but for the reason different from that posited by private respondents. According to the appellate court, the vacancy which resulted from the death of the mayor created a series of vacancies and successions by operation of law. By this interpretation, petitioner Tamayos former

position as the highest-ranking member of the Sanggunian Bayan was filled up by second highestranking member and that vacated by the second highest-ranking member was succeeded by the third highest-ranking member, and so forth. And the last vacancy created was the position of the lowest ranking-member of the Sanggunian, that is, the eighth position occupied by Rolando Lalas. The Court of Appeals then concluded that it was the appointment of the eighth councilor, who was Rolando Lalas to the number seven position which created the "last vacancy;" therefore, the person to be appointed to the vacant position should come form the same political party to which Rolando Lalas belonged, which was the Lakas-NUCD-Kampi.
1wphi1.nt

Aggrieved by the decision of the Court of Appeals, petitioners brought the instant petition. We give due course to the petition. Sections 44 and 45 of RA 7160 governing vacancies and succession are quoted hereunder: Section 44. Permanent Vacancies in the Offices of the Governor, Mayor, and Vice-Mayor. If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy in the offices of the governor, vice-governor, mayor or vice-mayor, the highest sanggunian member or, in case of his permanent inability, the second highest-ranking sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein: (b) If a permanent vacancy occurs in the office of the punong barangay, the highest-ranking sanggunian barangay members or, in case of his permanent inability, the second highestranking sanggunian member, shall become the punong barangay. (c) A Lie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. Section 45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic successions provided above do not apply shall be filled by appointment in the following manner: (1) The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sangguniang panglungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panglunsod of component cities and the sanguniang bayan; (3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned; (b) Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian member concerned had been elected and whose elevation to the position next higher in rank created the last vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the same political party as that on the sanggunian member who caused the vacancy and shall serve the unexpired term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment without such nomination and certification shall be null and void ab initio and shall be a ground for administrative action against the official responsible therefor. (c) In case the permanent vacancy is caused by a sanggunian member who does not belong to any political party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill the vacancy. (d) In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned. Under Section 44, a permanent vacancy arises when an elective official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. What is crucial is the interpretation of Section 45(b) providing that "xxx only the nominee of the political party under which the Sanggunian member concerned has been elected and whose elevation to the position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from the political party as that of the Sanggunian member who caused the vacancy xxx." The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election.2 With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the position of ViceMayor, a vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the political party of petitioner Tamayo. Otherwise, REFORMA-LMs representation in the Sanggunian would be diminished. To argue that the vacancy created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member, would result in the increase of that partys representation in the Sanggunian at the expense of the REFORMA-LM. This interpretation is contrary to the letter and spirit of the law and thus violative of a fundamental rule in statutory construction which is to ascertain and give effect to the intent and purpose of the law.3 As earlier pointed out, the reason behind par. (b), section 44 of the Local Government Code is the maintenance party representation in the Sanggunian in accordance with the will of the electorate.
1w phi 1.nt

The "last vacancy" in the Sanggunian refers to that created by the elevation of the member formerly occupying the next higher in rank which in turn also had become vacant by any of the causes

already enumerated. The term "last vacancy" is thus used in Sec. 45 (b) to differentiate it from the other vacancy previously created. The term by no means refers to the vacancy in the No. 8 position which occurred with the election of Rolando Lalas to the seventh position in the Sanggunian. Such construction will result in absurdity. Petitioners also allege that the Court of Appeals erred in giving due course to the petition because the verification is defective. It is argued that the affidavit merely stated that the allegations therein are "true and correct to the best of my own knowledge and information" whereas Section 4, Rule 7 of the Rules of Court specifically requires that the allegations be "true and correct of his knowledge and belief." The contention is without merit. Verification based on the affiants own knowledge and information is sufficient under the circumstances. Verification is merely a formal and not a jurisdictional requisite which does not affect the validity or efficacy of the pleading, or the jurisdiction of the court.4 Therefore, a defective verification, as in the present case, does not render the pleading or the petition invalid and the Court of Appeals did not err in giving due course to the petition. WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. SP No. 54675 dated October 7, 1999 is REVERSED and SET ASIDE. The appointment of petitioner Purto J. Navarro to the Sanggunian Bayan of Mapandan, Pangasinan is hereby AFFIRMED as valid and legal. SO ORDERED. Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 143867 August 22, 2001

PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, INC., petitioner, vs. CITY OF DAVAO and ADELAIDA B. BARCELONA, in her capacity as the City Treasurer of Davao,respondents. MENDOZA, J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure of the resolution, 1 dated June 23, 2000, of the Regional Trial Court, Branch 13, Davao City, affirming the tax assessment of petitioner and the denial of its claim for tax refund by the City Treasurer of Davao. The facts are as follows: On January 1999, petitioner Philippine Long Distance Telephone Co., Inc. (PLDT) applied for a Mayor's Permit to operate its Davao Metro Exchange. Respondent City of Davao withheld action on

the application pending payment by petitioner of the local franchise tax in the amount of P3,681,985.72 for the first to the fourth quarter of 1999. 2 In a letter dated May 31, 1999, 3 petitioner protested the assessment of the local franchise tax and requested a refund of the franchise tax paid by it for the year 1997 and the first to the third quarters of 1998. Petitioner contended that it was exempt from the payment of franchise tax based on an opinion of the Bureau of Local Government Finance (BLGF), dated June 2, 1998, which reads as follows: PLDT: Section 12 of RA 7082 provides as follows: "SECTION 12. The grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings, and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay. In addition thereto, the grantee, its successors or assigns shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the telephone or other telecommunications businesses transacted under this franchise by the grantee, its successors or assigns, and the said percentage shall be in lieu of all taxes on this franchise or earnings thereof . . ." It appears that RA 7082 further amending Act No. 3436 which granted to PLDT a franchise to install, operate and maintain a telephone system throughout the Philippine Islands was approved on August 3, 1991. Section 12 of said franchise, likewise, contains the "in lieu of all taxes" proviso. In this connection, Section 23 of RA 7925, quoted hereunder, which was approved on March 1, 1995, provides for the equality of treatment in the telecommunications industry: "SECTION 23. Equality of Treatment in the Telecommunications Industry. Any advantage, favor, privilege, exemption, or immunity granted under existing franchises, or may hereafter be granted, shall ipso facto become part of previously granted telecommunications franchise and shall be accorded immediately and unconditionally to the grantees of such franchises: Provided, however, That the foregoing shall neither apply to nor affect provisions of telecommunications franchises concerning territory covered by the franchise, the life span of the franchise, or the type of service authorized by the franchise." (Italics supplied.) On the basis of the aforequoted Section 23 of RA 7925, PLDT as a telecommunications franchise holder becomes automatically covered by the tax exemption provisions of RA 7925, which took effect on March 16, 1995. Accordingly, PLDT shall be exempt from the payment of franchise and business taxes imposable by LGUs under Sections 137 and 143 (sic), respectively, of the LGC, upon the effectivity of RA 7925 on March 16, 1995. However, PLDT shall be liable to pay the franchise and business taxes on its gross receipts realized from January 1, 1992 up to March 15, 1995, during which period PLDT was not enjoying the "most favored clause" proviso of RA 7025 (sic).4 In a letter dated September 27, 1999, respondent Adelaida B. Barcelona, City Treasurer of Davao, denied the protest and claim for tax refund of petitioner,5 citing the legal opinion of the City Legal Officer of Davao and Art. 10, 1 of Ordinance No. 230, Series of 1991, as amended by Ordinance No. 519, Series of 1992, which provides:

Notwithstanding any exemption granted by any law or other special law, there is hereby imposed a tax on businesses enjoying a franchise, at a rate of Seventy-five percent (75%) of one percent (1%) of the gross annual receipts for the preceding calendar year based on the income or receipts realized within the territorial jurisdiction of Davao City.6 Petitioner received respondent City Treasurer's order of denial on October 1, 1999. On November 3, 1999, it filed a petition in the Regional Trial Court of Davao seeking a reversal of respondent City Treasurer's denial of petitioner's protest and the refund of the franchise tax paid by it for the year 1998 in the amount of P2,580,829.23. The petition was filed pursuant to 195 and 196 of the Local Government Code (R.A. No. 7160). No claim for refund of franchise taxes paid in 1997 was made as the same had already prescribed under 196 of the LGC, which provides that claims for the refund of taxes paid under it must be made within two (2) years from the date of payment of such taxes.7 The trial court denied petitioner's appeal and affirmed the City Treasurer's decision. It ruled that the LGC withdrew all tax exemptions previously enjoyed by all persons and authorized local government units to impose a tax on businesses enjoying a franchise notwithstanding the grant of tax exemption to them. The trial court likewise denied petitioner's claim for exemption under R.A. No. 7925 for the following reasons: (1) it is clear from the wording of 193 of the Local Government Code that Congress did not intend to exempt any franchise holder from the payment of local franchise and business taxes; (2) the opinion of the Executive Director of the Bureau of Local Government Finance to the contrary is not binding on respondents; and (3) petitioner failed to present any proof that Globe and Smart were enjoying local franchise and business tax exemptions. Hence, this petition for review based on the following grounds: I. THE LOWER COURT ERRED IN APPLYING SECTION 137 OF THE LOCAL GOVERNMENT CODE, WHICH ALLOWS A CITY TO IMPOSE A FRANCHISE TAX, AND SECTION 193 THEREOF, WHICH PROVIDES FOR WITHDRAWAL OF TAX EXEMPTION PRIVILEGES. II. THE LOWER COURT ERRED IN NOT HOLDING THAT UNDER PETITIONER'S FRANCHISE, AS IMPLICITLY AMENDED AND EXPANDED BY SECTION 23 OF REPUBLIC ACT NO. 7925 (PUBLIC TELECOMMUNICATIONS POLICY ACT), TAKING INTO ACCOUNT THE FRANCHISES OF GLOBE TELECOM, INC. AND SMART COMMUNICATIONS, INC., WHICH WERE ENACTED SUBSEQUENT TO THE LOCAL GOVERNMENT CODE, NO FRANCHISE AND BUSINESS TAXES MAY BE IMPOSED ON PETITIONER BY RESPONDENT CITY. III. THE LOWER COURT ERRED IN NOT GIVING WEIGHT TO THE RULING OF THE BUREAU OF LOCAL GOVERNMENT FINANCE THAT PETITIONER IS EXEMPT FROM THE PAYMENT OF FRANCHISE AND BUSINESS TAXES, AMONG OTHERS, IMPOSABLE BY LOCAL GOVERNMENT UNITS UNDER THE LOCAL GOVERNMENT CODE. First. The LGC, which took effect on January 1, 1992, provides: SECTION 137. Franchise Tax. Notwithstanding any exemption granted by any law or other special law, the province may impose a tax on businesses enjoying a franchise, at a rate not exceeding fifty percent (50%) of one percent (1%) of the gross annual receipts for the preceding calendar year based on the incoming receipt, or realized, within its territorial jurisdiction.

In the case of a newly started business, the tax shall not exceed one-twentieth (1/20) of one percent (1%) of the capital investment. In the succeeding calendar year, regardless of when the business started to operate, the tax shall be based on the gross receipts for the preceding calendar year, or any fraction thereof, as provided herein.8 SECTION 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or -controlled corporations, except local water districts, cooperatives duly registered under R.A. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. The trial court held that, under these provisions, all exemptions granted to all persons, whether natural and juridical, including those which in the future might be granted, are withdrawn unless the law granting the exemption expressly states that the exemption also applies to local taxes. We disagree. Sec. 137 does not state that it covers future exemptions. In Philippine Airlines, Inc. v. Edu,9 where a provision of the Tax Code enacted on June 27, 1968 (R.A. 5431) withdrew the exemption enjoyed by PAL, it was held that a subsequent amendment of PAL's franchise, exempting it from all other taxes except that imposed by its franchise, again entitled PAL to exemption from the date of the enactment of such amendment. The Tax Code provision withdrawing the tax exemption was not construed as prohibiting future grants of exemptions from all taxes. Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations.10 The question, therefore, is whether, after the withdrawal of its exemption by virtue of 137 of the LGC, petitioner has again become entitled to exemption from local franchise tax. Petitioner answers in the affirmative and points to 23 of R.A. No. 7925, in relation to the franchises of Globe Telecom (Globe) and Smart Communications, Inc. (Smart), which allegedly grant the latter exemption from local franchise taxes. To begin with, tax exemptions are highly disfavored. The reason for this was explained by this Court in Asiatic Petroleum Co. v. Llanes,11 in which it was held: . . . Exemptions from taxation are highly disfavored, so much so that they may almost be said to be odious to the law. He who claims an exemption must be able to point to some positive provision of law creating the right. . . As was said by the Supreme Court of Tennessee in Memphis vs. U. & P. Bank (91 Tenn., 546, 550), "The right of taxation is inherent in the State. It is a prerogative essential to the perpetuity of the government; and he who claims an exemption from the common burden must justify his claim by the clearest grant of organic or statute law." Other utterances equally or more emphatic come readily to hand from the highest authority. In Ohio Life Ins. and Trust Co. vs. Debolt (16 Howard, 416), it was said by Chief Justice Taney, that the right of taxation will not be held to have been surrendered, "unless the intention to surrender is manifested by words too plain to be mistaken." In the case of the Delaware Railroad Tax (18 Wallace, 206, 226), the Supreme Court of the United States said that the surrender, when claimed, must be shown by clear, unambiguous language, which will admit of no reasonable construction consistent with the reservation of the power. If a doubt arises as to the intent of the legislature, that doubt must be solved in favor of the State. In Erie Railway Company vs. Commonwealth of Pennsylvania (21 Wallace, 492, 499), Mr. Justice Hunt, speaking of exemptions, observed that a State cannot

strip itself of the most essential power of taxation by doubtful words. "It cannot, by ambiguous language, be deprived of this highest attribute of sovereignty." In Tennessee vs. Whitworth (117 U.S., 129, 136), it was said: "In all cases of this kind the question is as to the intent of the legislature, the presumption always being against any surrender of the taxing power." In Farrington vs. Tennessee and County of Shelby (95 U.S., 679, 686), Mr. Justice Swayne said: ". . . When exemption is claimed, it must be shown indubitably to exist. At the outset, every presumption is against it. A well-founded doubt is fatal to the claim. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported." The tax exemption must be expressed in the statute in clear language that leaves no doubt of the intention of the legislature to grant such exemption. And, even if it is granted, the exemption must be interpreted in strictissimi jurisagainst the taxpayer and liberally in favor of the taxing authority.12 In the present case, petitioner justifies its claim of tax exemption by strained inferences. First, it cites R.A. No. 7925, otherwise known as the Public Telecommunications Policy Act of the Philippines, 23 of which reads: SECTION 23. Equality of Treatment in the Telecommunications Industry. Any advantage, favor, privilege, exemption, or immunity granted under existing franchises, or may hereafter be granted, shall ipso facto become part of previously granted telecommunications franchises and shall be accorded immediately and unconditionally to the grantees of such franchises: Provided, however, That the foregoing shall neither apply to nor affect provisions of telecommunications franchises concerning territory covered by the franchise, the life span of the franchise, or the type of service authorized by the franchise. Petitioner then claims that Smart and Globe enjoy exemption from the payment of the franchise tax by virtue of their legislative franchises per opinion of the Bureau of Local Government Finance of the Department of Finance. Finally, it argues that because Smart and Globe are exempt from the franchise tax, it follows that it must likewise be exempt from the tax being collected by the City of Davao because the grant of tax exemption to Smart and Globe ipso facto extended the same exemption to it. The acceptance of petitioner's theory would result in absurd consequences. To illustrate: In its franchise, Globe is required to pay a franchise tax of only one and one-half percentum (1%) of all gross receipts from its transactions while Smart is required to pay a tax of three percent (3%) on all gross receipts from business transacted. Petitioner's theory would require that, to level the playing field, any "advantage, favor, privilege, exemption, or immunity" granted to Globe must be extended to all telecommunications companies, including Smart. If, later, Congress again grants a franchise to another telecommunications company imposing, say, one percent (1%) franchise tax, then all other telecommunications franchises will have to be adjusted to "level the playing field" so to speak. This could not have been the intent of Congress in enacting 23 of Rep. Act 7925. Petitioner's theory will leave the Government with the burden of having to keep track of all granted telecommunications franchises, lest some companies be treated unequally. It is different if Congress enacts a law specifically granting uniform advantages, favor, privilege, exemption, or immunity to all telecommunications entities. The fact is that the term "exemption" in 23 is too general. A cardinal rule in statutory construction is that legislative intent must be ascertained from a consideration of the statute as a whole and not merely of a particular provision. For, taken in the abstract, a word or phrase might easily convey a meaning which is different from the one actually intended. A general provision may actually have a

limited application if read together with other provisions.13 Hence, a consideration of the law itself in its entirety and the proceedings of both Houses of Congress is in order.14 Art. I of Rep. Act No. 7925 contains the general provisions, stating that the Act shall be known as the Public Telecommunications Policy Act of the Philippines, and a definition of terms.15 Art. II provides for its policies and objectives, which is to foster the improvement and expansion of telecommunications services in the country through: (1) the construction of telecommunications infrastructure and interconnection facilities, having in mind the efficient use of the radio frequency spectrum and extension of basic services to areas not yet served; (2) fair, just, and reasonable rates and tariff charges; (3) stable, transparent, and fair administrative processes; (4) reliance on private enterprise for direct provision of telecommunications services; (5) dispersal of ownership of telecommunications entities in compliance with the constitutional mandate to democratize the ownership of public utilities; (6) encouragement of the establishment of interconnection with other countries to provide access to international communications highways and development of a competitive export-oriented domestic telecommunications manufacturing industry; and (7) development of human resources skills and capabilities to sustain the growth and development of telecommunications.16 Art. III provides for its administration. The operational and administrative functions are delegated to the National Telecommunications Commission (NTC), while policy-making, research, and negotiations in international telecommunications matters are left with the Department of Transportation and Communications.17 Art. IV classifies the categories of telecommunications entities as: Local Exchange Operator, InterExchange Carrier, International Carrier, Value-Added Service Provider, Mobile Radio Services, and Radio Paging Services.18 Art. V provides for the use of other services and facilities, such as customer premises equipment, which may be used within the premises of telecommunications subscribers subject only to the requirement that it is type-approved by the NTC, and radio frequency spectrum, the assignment of which shall be subject to periodic review.19 Art. VI, entitled Franchise, Rates and Revenue Determination, provides for the requirement to obtain a franchise from Congress and a Certificate of Public Convenience and Necessity from the NTC before a telecommunications entity can begin its operations. It also provides for the NTC's residual power to regulate the rates or tariffs when ruinous competition results or when a monopoly or a cartel or combination in restraint of free competition exists and the rates or tariffs are distorted or unable to function freely and the public is adversely affected. There is also a provision relating to revenue sharing arrangements between inter-connecting carriers.20 Art. VII provides for the rights of telecommunications users.21 Art. VIII, entitled Telecommunications Development, where 23 is found, provides for public ownership of telecommunications entities, privatization of existing facilities, and the equality of treatment provision.22 Art. IX contains the Final Provisions.23 R.A. No. 7925 is thus a legislative enactment designed to set the national policy on telecommunications and provide the structures to implement it to keep up with the technological advances in the industry and the needs of the public. The thrust of the law is to promote gradually the deregulation of the entry, pricing, and operations of all public telecommunications entities and thus promote a level playing field in the telecommunications industry.24There is nothing in the language of 23 nor in the proceedings of both the House of Representatives and the Senate in

enacting R.A. No. 7925 which shows that it contemplates the grant of tax exemptions to all telecommunications entities, including those whose exemptions had been withdrawn by the LGC. What this Court said in Asiatic Petroleum Co. v. Llanes25 applies mutatis mutandis to this case: "When exemption is claimed, it must be shown indubitably to exist. At the outset, every presumption is against it. A well-founded doubt is fatal to the claim. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported." In this case, the word "exemption" in 23 of R.A. No. 7925 could contemplate exemption from certain regulatory or reporting requirements, bearing in mind the policy of the law. It is noteworthy that, in holding Smart and Globe exempt from local taxes, the BLGF did not base its opinion on 23 but on the fact that the franchises granted to them after the effectivity of the LGC exempted them from the payment of local franchise and business taxes. Second. In the case of petitioner, the BLGF opined that 23 of R.A. No. 7925 amended the franchise of petitioner and in effect restored its exemptions from local taxes. Petitioner contends that courts should not set aside conclusions reached by the BLGF because its function is precisely the study of local tax problems and it has necessarily developed an expertise on the subject. To be sure, the BLGF is not an administrative agency whose findings on questions of fact are given weight and deference in the courts. The authorities cited by petitioner pertain to the Court of Tax Appeals,26 a highly specialized court which performs judicial functions as it was created for the review of tax cases.27 In contrast, the BLGF was created merely to provide consultative services and technical assistance to local governments and the general public on local taxation, real property assessment, and other related matters, among others.28 The question raised by petitioner is a legal question, to wit, the interpretation of 23 of R.A. No. 7925. There is, therefore, no basis for claiming expertise for the BLGF that administrative agencies are said to possess in their respective fields. Petitioner likewise argues that the BLGF enjoys the presumption of regularity in the performance of its duty. It does enjoy this presumption, but this has nothing to do with the question in this case. This case does not concern the regularity of performance of the BLGF in the exercise of its duties, but the correctness of its interpretation of a provision of law. In sum, it does not appear that, in approving 23 of R.A. No. 7925, Congress intended it to operate as a blanket tax exemption to all telecommunications entities. Applying the rule of strict construction of laws granting tax exemptions and the rule that doubts should be resolved in favor of municipal corporations in interpreting statutory provisions on municipal taxing powers, we hold that 23 of R.A. No. 7925 cannot be considered as having amended petitioner's franchise so as to entitle it to exemption from the imposition of local franchise taxes. Consequently, we hold that petitioner is liable to pay local franchise taxes in the amount of P3,681,985.72 for the period covering the first to the fourth quarter of 1999 and that it is not entitled to a refund of taxes paid by it for the period covering the first to the third quarter of 1998. WHEREFORE, the petition for review on certiorari is DENIED and the decision of the Regional Trial Court, Branch 13, Davao City is AFFIRMED. SO ORDERED. Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 129093 August 30, 2001

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and HON. CALIXTO CATAQUIZ,petitioners, vs. HON. FRANCISCO DIZON PAO and TONY CALVENTO, respondents. QUISUMBING, J.: For our resolution is a petition for review on certiorari seeking the reversal of the decision 1 dated February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93, enjoining petitioners from implementing or enforcing Kapasiyahan Bilang 508, Taon 1995, of the Sangguniang Panlalawigan of Laguna and its subsequent Order 2 dated April 21, 1997 denying petitioners' motion for reconsideration. On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto. He asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open the lotto outlet. This was denied by Mayor Cataquiz in a letter dated February 19, 1996. The ground for said denial was an ordinance passed by the Sangguniang Panlalawigan of Laguna entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18, 1995. The ordinance reads: ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA ANG LOTTO SA LALAWIGAN NG LAGUNA SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na; SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit sa mga kabataan; KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong pagkakaisang sinangayunan ng lahat ng dumalo sa pulong; IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang uri ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lotto; IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna lalo na ang "Jueteng".3 As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory relief with prayer for preliminary injunction and temporary restraining order. In the said complaint, respondent Calvento asked the Regional Trial Court of San Pedro Laguna, Branch 93, for the following reliefs: (1) a preliminary injunction or temporary restraining order, ordering the defendants

to refrain from implementing or enforcing Kapasiyahan Blg. 508, T. 1995; (2) an order requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a business permit for the operation of a lotto outlet; and (3) an order annulling or declaring as invalid Kapasiyahan Blg. 508, T. 1995. On February 10, 1997, the respondent judge, Francisco Dizon Pao, promulgated his decision enjoining the petitioners from implementing or enforcing resolution or Kapasiyahan Blg. 508, T. 1995. The dispositive portion of said decision reads: WHEREFORE, premises considered, defendants, their agents and representatives are hereby enjoined from implementing or enforcing resolution or kapasiyahan blg. 508, T. 1995 of the Sangguniang Panlalawigan ng Laguna prohibiting the operation of the lotto in the province of Laguna. SO ORDERED.4 Petitioners filed a motion for reconsideration which was subsequently denied in an Order dated April 21, 1997, which reads: Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and the Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition filed by plaintiff's counsel and the comment thereto filed by counsel for the defendants which were duly noted, the Court hereby denies the motion for lack of merit. SO ORDERED.5 On May 23, 1997, petitioners filed this petition alleging that the following errors were committed by the respondent trial court: I THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE SANGGUNIANG PANLALAWIGAN OF LAGUNA PROHIBITING THE OPERATION OF THE LOTTO IN THE PROVINCE OF LAGUNA. II THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR PROGRAM MAY BE IMPLEMENTED BY THE NATIONAL AGENCIES OR OFFICES, PRIOR CONSULTATION AND APPROVAL BY THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER CONCERNED SECTORS IS REQUIRED. Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial Government of Laguna of its vehement objection to the operation of lotto and all forms of gambling. It is likewise a valid exercise of the provincial government's police power under the General Welfare Clause of Republic Act 7160, otherwise known as the Local Government Code of 1991.6 They also maintain that respondent's lotto operation is illegal because no prior consultations and approval by the local government were sought before it was implemented contrary to the express provisions of Sections 2 (c) and 27 of R.A. 7160.7

For his part, respondent Calvento argues that the questioned resolution is, in effect, a curtailment of the power of the state since in this case the national legislature itself had already declared lotto as legal and permitted its operations around the country.8 As for the allegation that no prior consultations and approval were sought from the sangguniang panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a requirement is merely stated as a declaration of policy and not a self-executing provision of the Local Government Code of 1991.9 He also states that his operation of the lotto system is legal because of the authority given to him by the PCSO, which in turn had been granted a franchise to operate the lotto by Congress.10 The Office of the Solicitor General (OSG), for the State, contends that the Provincial Government of Laguna has no power to prohibit a form of gambling which has been authorized by the national government.11 He argues that this is based on the principle that ordinances should not contravene statutes as municipal governments are merely agents of the national government. The local councils exercise only delegated legislative powers which have been conferred on them by Congress. This being the case, these councils, as delegates, cannot be superior to the principal or exercise powers higher than those of the latter. The OSG also adds that the question of whether gambling should be permitted is for Congress to determine, taking into account national and local interests. Since Congress has allowed the PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to its legislative grant of authority, the province's Sangguniang Panlalawigan cannot nullify the exercise of said authority by preventing something already allowed by Congress. The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995 of the Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based thereon are valid; and (2) whether prior consultations and approval by the concerned Sanggunian are needed before a lotto system can be operated in a given local government unit. The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's permit for the operation of a lotto outlet in favor of private respondent. According to the mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in the province of Laguna. The ordinance, however, merely states the "objection" of the council to the said game. It is but a mere policy statement on the part of the local council, which is not self-executing. Nor could it serve as a valid ground to prohibit the operation of the lotto system in the province of Laguna. Even petitioners admit as much when they stated in their petition that: 5.7. The terms of the Resolution and the validity thereof are express and clear. The Resolution is a policy declaration of the Provincial Government of Laguna of its vehement opposition and/or objection to the operation of and/or all forms of gambling including the Lotto operation in the Province of Laguna.12 As a policy statement expressing the local government's objection to the lotto, such resolution is valid. This is part of the local government's autonomy to air its views which may be contrary to that of the national government's. However, this freedom to exercise contrary views does not mean that local governments may actually enact ordinances that go against laws duly enacted by Congress. Given this premise, the assailed resolution in this case could not and should not be interpreted as a measure or ordinance prohibiting the operation of lotto. The game of lotto is a game of chance duly authorized by the national government through an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law which grants a franchise to the PCSO and allows it to operate the lotteries. The pertinent provision reads: SECTION 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government

agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One thousand four hundred fifty-nine, as amended, and shall have the authority: A. To hold and conduct charity sweepstakes races, lotteries, and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors. This statute remains valid today. While lotto is clearly a game of chance, the national government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan of Laguna, a local government unit, cannot issue a resolution or an ordinance that would seek to prohibit permits. Stated otherwise, what the national legislature expressly allows by law, such as lotto, a provincial board may not disallow by ordinance or resolution. In our system of government, the power of local government units to legislate and enact ordinances and resolutions is merely a delegated power coming from Congress. As held in Tatel vs. Virac,13 ordinances should not contravene an existing statute enacted by Congress. The reasons for this is obvious, as elucidated inMagtajas v. Pryce Properties Corp.14 Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred upon them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the state, and the corporation could not prevent it. We know of no limitation on the right so far as the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature (citing Clinton vs. Ceder Rapids, etc. Railroad Co., 24 Iowa 455). Nothing in the present constitutional provision enhancing local autonomy dictates a different conclusion. The basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax (citing Art. X, Sec. 5, Constitution), which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.15

Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited and confined within the extent allowed by the central authority. Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization". It does not make local governments sovereign within the state or an "imperium in imperio".16 To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to prohibit lotto in his municipality. For said resolution is nothing but an expression of the local legislative unit concerned. The Board's enactment, like spring water, could not rise above its source of power, the national legislature. As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and 27 of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply mandatorily in the setting up of lotto outlets around the country. These provisions state: SECTION 2. Declaration of Policy. . . . (c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. SECTION 27. Prior Consultations Required. No project or program shall be implemented by government authorities unless the consultations mentioned in Section 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained; Provided, that occupants in areas where such projects are to be implemented shall not be evicted unless, appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. From a careful reading of said provisions, we find that these apply only to national programs and/or projects which are to be implemented in a particular local community. Lotto is neither a program nor a project of the national government, but of a charitable institution, the PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code. Section 27 of the Code should be read in conjunction with Section 26 thereof.17 Section 26 reads: SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, range-land, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of nonrenewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may

eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented. Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna. Moreover, the argument regarding lack of consultation raised by petitioners is clearly an afterthought on their part. There is no indication in the letter of Mayor Cataquiz that this was one of the reasons for his refusal to issue a permit. That refusal was predicated solely but erroneously on the provisions of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang Panlalawigan of Laguna. In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang Panlalawigan of Laguna. That resolution expresses merely a policy statement of the Laguna provincial board. It possesses no binding legal force nor requires any act of implementation. It provides no sufficient legal basis for respondent mayor's refusal to issue the permit sought by private respondent in connection with a legitimate business activity authorized by a law passed by Congress. WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial Court of San Pedro, Laguna enjoining the petitioners from implementing or enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna is hereby AFFIRMED. No costs. SO ORDERED. Bellosillo, Mendoza, Buena and De Leon, Jr., JJ ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 80796 November 8, 1989 PROVINCE OF CAMARINES NORTE, Represented by HONORABLE ROY PADILLA, as Acting Provincial Governor, petitioner, vs. PROVINCE OF QUEZON, Represented by HONORABLE HJALMAR QUINTANA, as Acting Provincial Governor, respondent.

FELICIANO, J.: The instant Petition for mandamus and Prohibition with Preliminary Injunction or Restraining Order brought by petitioner Province of Camarines Norte against respondent Province of Quezon, formerly known as Province of Tayabas, involves a land boundary dispute, which has raged between these two (2) provinces since the second decade of this century.

Historical records disclose that the Camarines region in the Island of Luzon had been divided originally into the two (2) separate provinces of Camarines Norte and Camarines Sur, which division was maintained until 19 May 1893, when the two (2) provinces were consolidated by the Spanish colonial administration to constitute a single entity, the Province of Ambos Camarines. Adjacent to Camarines Norte in the northeast (i.e., the northern portion of Ambos Camarines), upon the other hand, lay the Province of Tayabas. At the time of arrival of the United States flag in the Philippines, there was thus existing the Province of Ambos Camarines. The boundary between Ambos Camarines and Tayabas was defined and written into law in 1916, by Section 47 of Act No. 2657 (the Administrative Code). Although Act No. 2657 was repealed the following year by Act No. 2711 (the Revised Administrative Code), 1 the provisions pertaining to said boundary remained unaltered. In this respect, Act No. 2711 provided: Chapter 3. BOUNDARIES DEFINED Article I. Undefined boundaries Sec. 41. Undefined boundaries recognized. Boundaries which are not defined in the next succeeding article of this chapter shall, until expressly changed by law or executive order, be taken to be as heretofore determined by decree, statute, executive order, or other resolution having the force of law, and in the absence of such, by custom recognized by the administrative authorities. Article II. Defined boundaries Sec. 42. Ambos Camarines and Tayabas boundary. The boundary separating the Province of Ambos Camarines from the Province of Tayabas begins at a point on the eastern shore of Basiad Bay and extends to a peak known as Mount Cadig in such manner as to bring the territory of the barrio of Basiad entirely within the municipality of Capalonga, in Ambos Camarines, and to exclude the same from the territory of Calauag, in Tayabas. From Mount Cadig it extends along the crest of a mountain range, a distance of 50 kilometers, more or less, to a peak known as Mount Labo; thence in a southwesterly direction, a distance of 25 kilometers, more or less, to a prominent stone monument at the source or headwaters of the Pasay River, thence along the meandering course of said river in a southerly direction, a distance of 1-1/2 kilometers, more or less, to the Gulf of Ragay. (Emphasis supplied) Section 68 of the same Act also authorized the Governor-General of the Philippine Islands, among others, "to define the boundary, or boundaries, of any province, sub-province, municipality, township or other political subdivision, and increase or diminish the territory comprised therein," subject to what "the public welfare may require." As amended by Act No. 2929, which took effect on 30 March 1920, Section 68 provided, in full: Sec. 68. General authority of Governor-General to fix boundaries and make new subdivisions. The Governor-General may by executive order define the boundary or boundaries, of any province, subprovince municipality, township, of other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more sub-provinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of Government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the Philippine Legislature shall first

be obtained whenever the boundary of any province or sub-province is to be defined or or any provinces is to be divided into one or more subprovinces. When any action by the Governor- General in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the Governor-General, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed. Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as may be recommended by the Insular Auditor and approved by the Governor-General. (Emphasis supplied) In the meantime, on 3 March 1919, the Philippine Legislature approved Act No. 2809, which authorized once again the partition of Ambos Camarines into two (2) separate provinces: the Province of Camarines Norte and the Province of Camarines Sur. The pertinent provisions of Act No. 2809 read: Section 1. The Governor-General is hereby authorized whenever the public interest may require it, and subject to such conditions as he may desire to impose, to reestablish as an independent province the former Province of Camarines Norte, consolidated with the Province of Camarines Sur. Sec. 2. The Province of Camarines Norte so re-established shall have the same territory as before its consolidation with Camarines Sur the organization of the present Province of Ambos Camarines and its capital shall be the municipality of Daet, on the Island of Luzon. The provisions of the Administrative Code in so far as they are applicable to a regularly organized province shall apply to the government and operation of said province and to the election and appointment of the officers thereof. The remaining territory of the Province of Ambos Camarines shall be denominated the Province of Camarines Sur. (Emphasis supplied) On 30 March 1920, Governor-General Francis Burton Harrison issued Executive Order No. 22, implementing Act No. 2809 and formally re-establishing Camarines Norte as a province separate and distinct from Camarines Sur, effective 15 April 1920. 2 It is not clear from the records before the Court exactly how and when the present boundary disputeinvolving a land area of approximately 8,762 hectares-between Camarines Norte and Tayabas first emerged. The dispute probably evolved when Section 47 of the Administrative Code of 1916 and later Section 42 of the Revised Administrative Code of (1917) were enacted. In any event, the then Chief of the Executive Bureau, acting upon the authority of the Secretary of the Interior, rendered on 16 June 1922 a decision (First Indorsement) delineating that portion of the boundary between the provinces of Camarines Norte and Tayabas which is here involved. 3 That part of the boundary line was described in the following terms:
Starting from the peak of Mt. Labo as a common corner between the provinces of Tayabas, Camarines Sur and Camarines Norte thence a straight line is drawn to the peak of Mt. Cadig; thence a straight line is drawn to the point of intersection of the interprovincial road between Camarines Norte and Tayabas with the Tabugon River; thence, following the course of the river to its mouth at the to Basiad Bay. 4

To date, however, the aforementioned decision of 16 June 1922 has remained unimplemented and unenforced, despite several official directives from the then Secretary of the Interior and repeated efforts on the part of petitioner Camarines Norte, over the years, to enforce the same. All efforts at amicable resolution of the boundary dispute (the last such effort having been made sometime in 1987) have failed. Respondent Province of Quezon (then Tayabas), now as in the past, has simply refused to recognize as valid, and has frustrated all attempts to locate on the ground, survey and monument the segment of the Ambos Camarines [later Camarines Norte]-Tayabas boundary line delineated in the 1922 decision. In the instant Petition for mandamus and Prohibition, petitioner Camarines Norte Province asks the Court, firstly, to order respondent Quezon Province "to respect and abide [by] the decision of the Chief of [the] Executive Bureau dated June 16, 1922 and immediately comply therewith by yielding the whole territory described and defined therein to the petitioner;" secondly, to prohibit respondent Quezon Province from exercising power and authority over the area [so] embraced in the territory of petitioner; "and thirdly, to restrain respondent Province "from collecting all kinds of taxes from the inhabitants of [the territory of petitioner.]" The Court gave due course to the Petition on 30 June 1988 and required the filing of memoranda by the parties. 5Petitioner filed its Memorandum 6 on 2 September 1988. For its part, respondent Quezon Province moved that the Solicitor General's Comment 7 on and Rejoinder 8 to the Petition and Reply, respectively, be considered as its Memorandum. We granted the respondent's request. 9 The opposition of respondent Quezon Province to the, boundary line claimed and sought to be enforced here by petitioner Camarines Norte Province is, in the main, anchored on two (2) arguments. First, it is contended by Quezon Province that the boundary separating the old Province of Ambos Camarines from Quezon Province had already been established and defined in Section 42 of the Revised Administrative Code. Second, Quezon Province argues that the Chief of the Executive Bureau had no authority to alter or re-define that statutorily-defined boundary through his decision of 16 June 1922. Two (2) issues are thus posed for reconsideration and resolution by the court. The first issues relates to the character of the boundary between Ambos Camarines and Quezon province as set out in Section 42 of the revised Administrative code. Was that boundary already "defined" and, therefore, in no need of further definition? The second issue relates to the action of the Chief of the Executive Bureau: Was there legal authority for the 16 June 1922 decision of the Chief Executive Bureau? The two (2) issues are, of course related to one to the other. Should the entirety of the boundary line between Ambos Camarines and Quezon province be regarded as already "defined" by Section 42, then any "alteration" or "re-definition" by the Executive Department would, under Section 68 of the Revised Administrative Code, require the prior authorization of the then Philippine Legislature and a third issue would arise: Was such prior legislative authorization given? 1. Turning to the first issue, we note that Section 42 does set out a definition or description of the boundary line between Ambos Camarines and Quezon province. We note, however, that Section 42 does not describe or define the entirety of that line is such a manner as to permit the whole boundary line to be located on the ground by a surveyor. Close examination os Section 42 will show that is not the whole boundary line that is disputed but only a segment thereof. the boundary line from the peak of Mt. Cadig eastward to the peak of Mt. Labo and from there to a stone monument at the head-waters of the Pasay River and thence along the course of that river to the gulf of Ragay, is described in terms which are sufficiently precise to permit a surveyor to locate that boundary line on the surface of the earth. it is the western portion of the boundary line from the peak of mt. Cadig westward to a point on the eastern shore of Basiad Bay which is the subject of the boundary dispute.

It is pointed out by petitioner Camarines Norte, firstly, that the particular point on Basiad bay that is the terminus of the boundary line is not specificaly Identified in Section 42, considering that the eastern shore of Basiad Bay is 25 kilometersd in length, more or less, such that that terminal point could in theory be located anywhere along the 25-kilometer shore line. Secondly, the specific direction or directions and the varying lengths (the "metes and bounds") of the various segments of the boundary line to be projected from the terminus point on Basiad Bay onto Mt. Cadig's peak, are similarly not specified in Section 42, Thus, again, a surveyor on the ground would be unable to locate and monument the boundary line from Basiad Bay to Mt. Cadig if all he had was the languange found in Section 42 of the Revised Administrative Code. We agree with petitioner Camarines Norte's argument. We consider that to that limited extent, the Ambos Camarines-Quezon boundary line was "undefined" and that there was thus necessity for the 16 June 1922 decision of the Chief of the Executive Bureau to provide more specific guidance that would permit actual Identification or location of the Basiad Bay-Mt. Cadig portion of the boundary line between Ambos Camarines and Quezon Province:
[from the peak of Mt. Cadig] thence a straight line is drawn to the point of intersection of the inter provincial road between Camarines Norte and Tayabas with the Tabugon River, thence following the course of the river to its mouth at the Basiad Bay. (Emphasis supplied) 10

2. We consider next the second issue relating to the authority of the Chief of the Executive Bureau to render his decision. It is important to stress that the Chief of the Executive Bureau, in rendering that decision, did not, as he could not, purport to act with unlimited discretion. For Section 42 itself established certain requirements which the disputed portion of the Ambos Camarines Tayabas boundary line must satisfy; 1 the western) terminus point must be on the eastern shore line of Basiad Bay; and 2 the line to be projected from that terminus point must proceed (eastward) to the peak of Mt. Cadig in such a manner as to bring the territory of the barrio of Basiad entirely within the municipality. of Capalonga in Ambos Camarines, and to exclude the same from the territory of the Municipality of Calauag in Tayabas. It is not disputed by respondent Quezon Province that the line delineated by the Chief of the Executive Bureau in his decision in fact complied with both the above general directions or descriptions prescribed in Section 42. The Chief of the Executive Bureau did not, therefore, "alter" or "re-define" or "amend an existing provincial boundary.." the boundary line between Ambos Camarines and Tayabas. All that the Chief of the Executive Bureau did was toimplement upon the authority of the Secretary of Interior, Section 42 of Act No. 2711. He was, in addition, acting in accordance with the provisions of Act No. 2809, enacted on 3 March 1919, Section 2 of which (quoted supra) provided that petitioner Camarines Norte, upon its reestablishment as a distinct and separate province, "shall have the same territory as before its consolidation with Camarines Sur for the organization of the present Ambos Camarines in a letter dated 5 May 1960 to the Provincial Boards of Camarines Norte and Quezon Province, 11 former Assistant Executive Secretary Enrique C. Quema stated, among other things that the Basiad Bay Mt. Cadig segment of the Camarines Norte Quezon boundary line so spelled out under the 1922 decision of the Chief of the Executive Bureau, "according to the Bureau of Coast and Geodetic Survey, was the same boundary enforced between Camarines Norte and Tayabas when the former province was consolidated with Camarines Sur on May 19, 1893." 12 The Court notes that respondent Quezon Province has not controverted the correctness of this statement of Assistant

Executive Secretary Quema. The Court notes also that, so far as the records before us show, respondent Quezon Province has not attempted to indicate any other"surveyable" line between Basiad Bay and Mt. Cadig which, like that marked out in the 16 June 1922 decision, complies with both the requirements established in Section 42 of Act No. 2711 and the requirement prescribed in Section 2 of Act No. 2809. Should it be assumed, finally, that prior legislative authority was nonetheless necessary for the legal effectivity and enforceability of the 16 June 1922 decision of the Chief of the executive Bureau, we believe and so hold that that prior legislative authority was supplied by Act No. 2809. The spelling out of a "survey-able" and "monumentable" Basiad Bay-Mt. Cadig segment of the Ambos Camarines-Tayabas boundary line, was necessary and incidental to the authority of the GovernorGeneral to re-establish as an independent province the former Province of Camarines Norte and to ensure that it would have the same territory which it had prior to its consolidation into the then Province of Ambos Camarines. In sum, we hold that the decision of the Chief of the Executive Bureau dated 16 June 1922 was lawfully issued and is binding upon the parties. We hold further that prohibition and mandamus will lie for the enforcement of that decision, an enforcement unjustifiably resisted and delayed for sixtyseven (67) years. WHEREFORE, the Petition for Mandamus and Prohibition is hereby GRANTED Respondent Quezon Province is hereby ORDERED immediately to cease and desist, and perpetually to refrain, from exercising or performing any and all acts of jurisdiction or political authority over all or any part of the area here held to be part of the territory of the Province of Camarines Norte and forthwith to relinquish the same to petitioner Province of Camarines Norte. Let a copy of this decision be furnished to the Secretary of Local Governments and the Office of the President with the request that surveyors from the Bureau of Lands or other appropriate government agency be forthwith designated to survey and locate, by latitude and longtitude and by metes and bounds, and to monument the Basiad Bay Mt. Cadig line described in the 16 June 1922 decision of the Chief of the Executive Bureau. Costs against respondent. SO ORDERED. Ferna, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Melencio-Herrera, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 146319 October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner, vs. THE COMMISSION ON ELECTIONS, and Rep. Francis Joseph G. Escudero, respondents. x---------------------------------------------------------x G.R. No. 146342 October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner, vs. THE EXECUTIVE SECRETARY TO THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, SOLICITOR GENERAL, PROVINCE OF SORSOGON, MUNICIPALITY OF SORSOGON, MUNICIPALITY OF BACON, respondents. SANDOVAL-GUTIERREZ, J.: Before us are two (2) separate petitions challenging the constitutionality of Republic Act No. 8806 which created the City of Sorsogon and the validity of the plebiscite conducted pursuant thereto. On August 16, 2000, former President Joseph E. Estrada signed into law R.A. No. 8806, an "Act Creating The City Of Sorsogon By Merging The Municipalities Of Bacon And Sorsogon In The Province Of Sorsogon, And Appropriating Funds Therefor."1 Pursuant to Section 10, Article X of the Constitution,2 the Commission on Elections (COMELEC), on December 16, 2000, conducted a plebiscite in the Municipalities of Bacon and Sorsogon and submitted the matter for ratification. On December 17, 2000, the Plebiscite City Board of Canvassers (PCBC) proclaimed3 the creation of the City of Sorsogon as having been ratified and approved by the majority of the votes cast in the plebiscite.4 Invoking his right as a resident and taxpayer of the former Municipality of Sorsogon, Benjamin E. Cawaling, Jr. filed on January 2, 2001 the present petition for certiorari (G.R. No. 146319) seeking the annulment of the plebiscite on the following grounds: A. The December 16, 2000 plebiscite was conducted beyond the required 120-day period from the approval of R.A. 8806, in violation of Section 54 thereof; and B. Respondent COMELEC failed to observe the legal requirement of twenty (20) day extensive information campaign in the Municipalities of Bacon and Sorsogon before conducting the plebiscite.

Two days after filing the said action, or on January 4, 2001, petitioner instituted another petition (G.R. No. 146342), this time for prohibition seeking to enjoin the further implementation of R.A. No. 8806 for being unconstitutional, contending, in essence, that: 1. The creation of Sorsogon City by merging two municipalities violates Section 450(a) of the Local Government Code of 1991 (in relation to Section 10, Article X of the Constitution) which requires that only "a municipality or a cluster of barangays may be converted into a component city"; and 2. R.A. No. 8806 contains two (2) subjects, namely, the (a) creation of the City of Sorsogon and the (b) abolition of the Municipalities of Bacon and Sorsogon, thereby violating the "one subject-one bill" rule prescribed by Section 26(1), Article VI of the Constitution. Hence, the present petitions which were later consolidated.5 Significantly, during the pendency of these cases, specifically during the May 14, 2001 elections, the newly-created Sorsogon City had the first election of its officials. Since then, the City Government of Sorsogon has been regularly discharging its corporate and political powers pursuant to its charter, R.A. No. 8806. We shall first delve on petitioner's constitutional challenge against R.A. No. 8806 in G.R No. 146342. Every statute has in its favor the presumption of constitutionality.6 This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts.7 The theory is that every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law.8 This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one.9 In other words the grounds for nullity must be beyond reasonable doubt,10 for to doubt is to sustain.11 Petitioner initially reject R.A. No. 8806 because it violates Section 10, Article X of the Constitution which provides,inter alia: "SECTION 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected." (Emphasis ours) The criteria for the creation of a city is prescribed in Section 450 of the Local Government Code of 1991 (the Code), thus: "SECTION 450. Requisites for Creation. (a) A municipality or a cluster of barangays may be converted into a component city if it has an average annual income, as certified by the Department of Finance, of at least Twenty million (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Lands Management Bureau; or

(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land area shall not apply where the city proposed to be created is composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of specific funds, transfers, and non-recurring income." (Emphasis ours) Petitioner is not concerned whether the creation of Sorsogon City through R.A. No. 8806 complied with the criteria set by the Code as to income, population and land area. What he is assailing is its mode of creation. He contends that under Section 450(a) of the Code, a component city may be created only by converting "a municipality or a cluster of barangays," not by merging two municipalities, as what R.A. No. 8806 has done. This contention is devoid of merit. Petitioner's constricted reading of Section 450(a) of the Code is erroneous. The phrase "A municipality or a cluster of barangays may be converted into a component city" is not a criterion but simply one of the modes by which a city may be created. Section 10, Article X of the Constitution, quoted earlier and which petitioner cited in support of his posture, allows the merger of local government units to create a province city, municipality or barangay in accordance with the criteria established by the Code. Thus, Section 8 of the Code distinctly provides: "SECTION 8. Division and Merger. Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current income classification prior to such division. . . . ." (Emphasis ours) Verily, the creation of an entirely new local government unit through a division or a merger of existing local government units is recognized under the Constitution, provided that such merger or division shall comply with the requirements prescribed by the Code. Petitioner further submits that, in any case, there is no "compelling" reason for merging the Municipalities of Bacon and Sorsogon in order to create the City of Sorsogon considering that the Municipality of Sorsogon alone already qualifies to be upgraded to a component city. This argument goes into the wisdom of R.A. No. 8806, a matter which we are not competent to rule. In Angara v. Electoral Commission,12 this Court, through Justice Jose P. Laurel, made it clear that "the judiciary does not pass upon questions of wisdom, justice or expediency of legislation." In the exercise of judicial power, we are allowed only "to settle actual controversies involving rights which are legally demandable and enforceable,"13 and "may not annul an act of the political departments simply because we feel it is unwise or impractical. "14

Next, petitioner assails R.A. No. 8806 since it contravenes the "one subject-one bill" rule enunciated in Section 26 (1), Article VI of the Constitution, to wit: "SECTION 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof." (Emphasis ours) Petitioner contends that R.A. No. 8806 actually embraces two principal subjects which are: (1) the creation of the City of Sorsogon, and (2) the abolition of the Municipalities of Bacon and Sorsogon. While the title of the Act sufficiently informs the public about the creation of Sorsogon City, petitioner claims that no such information has been provided on the abolition of the Municipalities of Bacon and Sorsogon. The argument is far from persuasive. Contrary to petitioner's assertion, there is only one subject embraced in the title of the law, that is, the creation of the City of Sorsogon. The abolition/cessation of the corporate existence of the Municipalities of Bacon and Sorsogon due to their merger is not a subject separate and distinct from the creation of Sorsogon City. Such abolition/cessation was but the logical, natural and inevitable consequence of the merger. Otherwise put, it is the necessary means by which the City of Sorsogon was created. Hence, the title of the law, "An Act Creating the City of Sorsogon by Merging the Municipalities of Bacon and Sorsogon in the Province of Sorsogon, and Appropriating Funds Therefor," cannot be said to exclude the incidental effect of abolishing the two municipalities, nor can it be considered to have deprived the public of fair information on this consequence. It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the enactment language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein.15 The rule is sufficiently complied with if the title is comprehensive enough as to include the general object which the statute seeks to effect,16 and where, as here, the persons interested are informed of the nature, scope and consequences of the proposed law and its operation.17 Moreover, this Court has invariably adopted a liberal rather than technical construction of the rule "so as not to cripple or impede legislation."18 Consequently, we hold that petitioner has failed to present clear and convincing proof to defeat the presumption of constitutionality of R.A. No. 8806. We now turn to G.R. No. 146319 wherein petitioner assails the validity of the plebiscite conducted by the COMELEC for the ratification of the creation of Sorsogon City. Petitioner asserts that the plebiscite required by R.A. No. 8806 should be conducted within 120 days from the "approval" of said Act per express provision of its Section 54, viz: "SECTION 54. Plebiscite. The City of Sorsogon shall acquire corporate existence upon the ratification of its creation by a majority of the votes cast by the qualified voters in a plebiscite to be conducted in the present municipalities of Bacon and Sorsogon within one hundred twenty (120) days from the approval of this Act. x x x ." (Emphasis ours) The Act was approved on August 16, 2000 by former President Joseph E. Estrada. Thus, petitioner claims, the December 16, 2000 plebiscite was conducted one (1) day late from the expiration of the 120-day period after theapproval of the Act. This 120-day period having expired without a plebiscite being conducted, the Act itself expired and could no longer be ratified and approved in the plebiscite held on December 16, 2000.

In its comment, the COMELEC asserts that it scheduled the plebiscite on December 16, 2000 based on the date of the effectivity of the Act. Section 65 of the Act states: "SECTION 65. Effectivity. This Act shall take effect upon its publication in at least two (2) newspapers of general and local circulation." The law was first published in the August 25, 2000 issue of TODAY a newspaper of general circulation. Then on September 01, 2000, it was published in a newspaper of local circulation in the Province of Sorsogon. Thus, the publication of the law was completed on September 1, 2000, which date, according to the COMELEC, should be the reckoning point in determining the 120-day period within which to conduct the plebiscite, not from the date of its approval (August 16, 2000) when the law had not yet been published. The COMELEC argues that since publication is indispensable for the effectivity of a law, citing the landmark case of Taada vs. Tuvera,19 it could only schedule the plebiscite after the Act took effect. Thus, the COMELEC concludes, the December 16, 2000 plebiscite was well within the 120-day period from the effectivity of the law on September 1, 2000. The COMELEC is correct. In addition, Section 10 of the Code provides: "SECTION 10. Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Such plebiscite shall be conducted by the Commission on Elections within one hundred twenty (120) days from the date of the effectivity of the law or ordinance affecting such action, unless said law or ordinance fixes another date." (Emphasis ours) Quite plainly, the last sentence of Section 10 mandates that the plebiscite shall be conducted within 120 days from the date of the effectivity of the law, not from its approval. While the same provision allows a law or ordinance to fix "another date" for conducting a plebiscite, still such date must be reckoned from the date of the effectivity of the law. Consequently, the word "approval" in Section 54 of R.A. No. 8806, which should be read together with Section 65 (effectivity of the Act) thereof, could only mean "effectivity" as used and contemplated in Section 10 of the Code. This construction is in accord with the fundamental rule that all provisions of the laws relating to the same subject should be read together and reconciled to avoid inconsistency or repugnancy to established jurisprudence. As we stated in Taada: "ARTICLE 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication. After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we have come to the conclusion, and so hold, that the clause 'unless it is otherwise provided' refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication." (Emphasis supplied) To give Section 54 a literal and strict interpretation would in effect make the Act effective even before its publication, which scenario is precisely abhorred in Taada.

Lastly, petitioner alleges that the COMELEC failed to conduct an extensive information campaign on the proposed Sorsogon cityhood 20 days prior to the scheduled plebiscite as required by Article 11 (b.4.ii), Rule II of the Rules and Regulations Implementing the Code. However, no proof whatsoever was presented by petitioner to substantiate his allegation. Consequently, we sustain the presumption20 that the COMELEC regularly performed or complied with its duty under the law in conducting the plebiscite. WHEREFORE, the instant petitions are DISMISSED for lack of merit. Costs against petitioner. SO ORDERED.

EN BANC

[G.R. No. 131392. February 6, 2002]

CITY GOVERNMENT OF MAKATI CITY represented herein by JEJOMAR C. BINAY in his capacity as Mayor ofMakati City, petitioner, vs. CIVIL SERVICE COMMISSION and EUSEBIA R. GALZOTE, respondents. DECISION
BELLOSILLO, J.:

Is a government employee who has been ordered arrested and detained for a non-bailable offense and for which he was suspended for his inability to report for work until the termination of his case, still required to file a formal application for leave of absence to ensure his reinstatement upon his acquittal and thus protect his security of tenure? Concomitantly, will his prolonged absence from office for more than one (1) year automatically justify his being dropped from the rolls without prior notice despite his being already placed under suspension by his employer until the termination of his case, which finally resulted in his acquittal for lack of evidence? EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City Government of Makati City. With her meager income she was the lone provider for her children. But her simple life was disrupted abruptly when she was arrested without warrant and detained for more than three (3) years for a crime she did not commit. Throughout her ordeal in detention she trusted the city government that the suspension imposed on her was only until the final disposition of her case. As she drew near her vindication she never did expect the worst to come to her. On the third year of her detention the city government lifted her suspension, dropped her from the rolls without prior notice and without her knowledge, much less gave her an opportunity to forthwith correct the omission of an application for leave of absence belatedly laid on her. Upon her acquittal for lack of evidence and her release from detention she was denied reinstatement to her position. She was forced to seek recourse in the Civil Service Commission which ordered her immediate reinstatement with back wages from 19 October 1994, the date when she presented herself

for reassumption of duties but was turned back by the city government, up to the time of her actual reinstatement. Petitioner went to the Court of Appeals, but private respondent was sustained and the petition was dismissed. In other words, in both the Civil Service Commission and the Court of Appeals, private respondent obtained favorable relief.
[1] [2]

Plainly, the case of petitioner City Government of Makati City revolves around a rotunda of doubt, a dilemma concerning the legal status and implication of its suspension of private respondent Eusebia R. Galzote and the automatic leave of absence espoused by the Civil Service Commission. Against this concern is the punctilious adherence to technicality, the requirement that private respondent should have filed an application for leave of absence in proper form. The instant case is therefore a dispute between, at its worst, private respondent's substantial compliance with the standing rules, and the City Government's insistence that the lowly clerk should have still gone through the formalities of applying for leave despite her detention, of which petitioner had actual notice, and the suspension order couched in simple language that she was being suspended until the final disposition of her criminal case. The meaning of her suspension until the final disposition of her case is that should her case be dismissed she should be reinstated to her position with payment of back wages. She did not have to apply for leave of absence since she was already suspended by her employer until her case would be terminated. We have done justice to the workingman in the past; today we will do no less by resolving all doubts in favor of the humble employee in faithful obeisance to the constitutional mandate to afford full protection to labor.
[3]

What follows is the pathetic story of private respondent Eusebia R. Galzote as recorded by the Civil Service Commission, adopted and sustained by the Court of Appeals: Private respondent was employed as a clerk in the Department of Engineering and Public Works of MakatiCity. On 6 September 1991 she was arrested without warrant and detained allegedly for kidnapping for ransom with physical injuries, and thereafter subjected to inquest proceedings with the criminal case eventually docketed as Crim. Case No. 88357 of the Regional Trial Court ofPasig, Metro Manila. Incarcerated from then on, she could not report for work as a result of which she was suspended from office by petitionerCity Government starting 9 September 1991 until the final disposition of her case. Unfortunately, however, the City Government thereafter changed its policy. Without
[4] [5] [6] [7]

informing private respondent who was then already detained at the Rizal Provincial Jail, and even as her trial for the criminal case was going on, she was dropped from the rolls of municipal employees effective 21 January 1993 for having been absent from work for more than one (1) year without official leave.
[8] [9]

Three (3) years later, or on 22 September 1994, private respondent Galzote was acquitted of the crime charged. The trial court strongly noted the failure of the prosecution to prove any act establishing her complicity in the crime, and thus ordered her immediate release from detention.
[10]

On 19 October 1994 she requested the Municipal Personnel Officer as well as Mayor Jejomar Binay, both of petitioner city government, for the lifting of her suspension and for her reinstatement to her position in accordance with the 9 September 1991 memorandum. On 4 August 1995, or nearly a year after she made her request for reinstatement from petitioner City Government and no action was taken thereon, private respondent filed a letter-request with the CSC for the same cause. Consequently, in Resolution No. 960153 the CSC found merit in her submissions and ordered her immediate reinstatement to the position of Clerk III with back wages from 19 October 1994, which was the day she presented herself as reporting for work after her detention, until her actual resumption of duty.
[11] [12] [13]

The City Government of Makati City filed a Petition for Review of the Resolution of the CSC but the same was denied by the Court of Appeals, thus sustaining the assailed Resolution of the CSC. As may be gleaned from the pleadings of the parties, the issues are: (a) whether private respondent Eusebia R. Galzote may be considered absent without leave; (b) whether due process had been observed before she was dropped from the rolls; and, (c) whether she may be deemed to have abandoned her position, hence, not entitled to reinstatement with back salaries for not having filed a formal application for leave. Encapsulated, the issues may be reduced to whether private respondent may be considered absent without leave or whether she abandoned her job as to justify being dropped from the service for not filing a formal application for leave. Petitioner would have private respondent declared on AWOL and faults her for failing to file an application for leave of absence under Secs. 20 and 35 of the CSC Rules and rejects the CSC's ruling of an "automatic leave of absence for the period of her detention" since the "currentCivil Service Law
[14] [15]

and Rules do not contain any specific provision on automatic leave of absence." The Court believes that private respondent cannot be faulted for failing to file prior to her detention an application for leave and obtain approval thereof. The records clearly show that she had been advised three (3) days after her arrest, or on 9 September 1991, that petitioner CityGovernment of Makati City had placed her under suspension until the final disposition of her criminal case. This act of petitioner indubitably recognized private respondent's predicament and thus allowed her to forego reporting for work during the pendency of her criminal case without the needless exercise of strict formalities. At the very least, this official communication should be taken as an equivalent of a prior approved leave of absence since it was her employer itself which placed her under suspension and thus excused her from further formalities in applying for such leave. Moreover, the arrangement bound the City Government to allow private respondent to return to her work after the termination of her case, i.e., if acquitted of the criminal charge. This pledge sufficiently served as legitimate reason for her to altogether dispense with the formal application for leave; there was no reason to, as in fact it was not required, since she was for all practical purposes incapacitated or disabled to do so.
[16]

Indeed, private respondent did not have the least intention to go on AWOL from her post as Clerk III of petitioner, for AWOL means the employee leaving or abandoning his post without justifiable reason and without notifying his employer. In the instant case, private respondent had a valid reason for failing to report for work as she was detained without bail. Hence, right after her release from detention, and when finally able to do so, she presented herself to the Municipal Personnel Officer of petitioner City Government to report for work. Certainly, had she been told that it was still necessary for her to file an application for leave despite the 9 September 1991 assurance from petitioner, private respondent would have lost no time in filing such piece of document. But the situation momentarily suspending her from work persisted: petitioner City Government did not alter the modus vivendi with private respondent and lulled her into believing that its commitment that her suspension was only until the termination of her case was true and reliable. Under the circumstances private respondent was in, prudence would have dictated petitioner, more particularly the incumbent city executive, in patria potestas, to advise her that it was still necessary although indeed unnecessary and a useless ceremony - to file such application despite the suspension order, before depriving her of her legitimate right to return to her position. Patriapotestas in pietate debet, non

in atrocitate, consistere. Paternal power should consist or be exercised in affection, not in atrocity. It is clear from the records that private respondent Galzote was arrested and detained without a warrant on 6 September 1991 for which reason she and her co-accused were subjected immediately to inquest proceedings. This fact is evident from the instant petition itself and its attachments, namely, the Information filed against them on 17 September 1991 as well as the Decision of the trial court acquitting private respondent of kidnapping and physical injuries. Hence, her ordeal in jail began on 6 September 1991 and ended only after her acquittal, thus leaving her no time to to attend to the formality of filing a leave application.
[17]

But petitioner City Government would unceremoniously set aside its 9 September 1991 suspension order claiming that it was superseded three (3) years later by a memorandum dropping her from the rolls effective 21 January 1993 for absence "for more than one (1) year without official leave." Hence, the suspension order was void since there was no pending administrative charge against private respondent so that she was not excused from filing an application for leave.
[18]

We do not agree. In placing private respondent under suspension until the final disposition of her criminal case, the Municipal Personnel Officer acted with competence, so he presumably knew that his order of suspension was not akin to either suspension as penalty or preventive suspension since there was no administrative case against private respondent. As competence on the part of the MPO is presumed, any error on his part should not prejudice private respondent, and that what he had in mind was to consider her as being on leave of absence without pay and their employer-employee relationship being merely deemed suspended, not severed, in the meanwhile. This construction of the order of suspension is actually more consistent with logic as well as fairness and kindness to its author, the MPO. Significantly, the idea of a suspended employer-employee relationship is widely accepted in labor law to account for situations wherein laborers would have no work to perform for causes not attributable to them. We find no basis for denying the application of this principle to the instant case which also involves a lowly worker in the public service.
[19]

Moreover, we certainly cannot nullify the City Government's order of suspension, as we have no reason to do so, much less retroactively apply such nullification to deprive private respondent of a compelling and valid reason for not filing the leave application. For as we have held, a void act though in law a mere scrap of paper nonetheless confers legitimacy upon past

acts or omissions done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. It would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application.
[20] [21]

At any rate, statements are, or should be, construed against the one responsible for the confusion; otherwise stated, petitioner must assume full responsibility for the consequences of its own act, hence, should be made to answer for the mix-up of private respondent as regards the leave application. At the very least, it should be considered estopped from claiming that its order of suspension is void or that it did not excuse private respondent from filing an application for leave on account of her incarceration. It is a fact that she relied upon this order, issued barely three (3) days from the date of her arrest, and assumed that when the criminal case would be settled she could return to work without need of any other prior act. In Laurel v. Civil Service Commission we held [22]

The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not apply to designation - only to appointment. He changed his mind only after the public respondent, in its Resolution No. 83-358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done directly cannot be done indirectly" and, more specifically, only when he filed his motion to reconsider said resolution. Strictly speaking, estoppelhas bound petitioner to his prior admission. Per Article 1431 of the Civil Code, through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon.[23] If it is true that the City Government of Makati City wanted to change its stance and consider the suspension memorandum as an error, it should have required private respondent to file an application for leave as it was its obligation to inform her of such requirement. In particular, the subsequent memorandum dropping Galzote from the rolls effective 21 January 1993 should have been sent to her at the Rizal Provincial Jail where she had been detained and where she could have received it. This Court will not confer validity upon the later memorandum which violates due process. As we ruled in Gonzales v. Civil Service Commission [24]

It is the ruling of the respondent Civil Service Commission that the sending of the said notice to the residence of petitioner constitutes substantial compliance with the demands of due process. The ruling would have some allure if the address of

petitioner in the United States was not known to the officials of ATI and if his Philippine address was his last known address. But as stressed above, they knew of petitioner's exact address in the United States and there appears no impediment for them to send the notice in this correct address x x x x The disputed ruling cuts too deeply on petitioner's right to continue his employment in the government and unduly dilutes the protection of due process. x x x x Nothing less than strict compliance with the demands of due process should have been demanded by the respondent Commission from the officials of ATI in light of the equities of the case. Nor can we give our concurrence to the further ruling of the respondent Commission that the denial of due process to the petitioner was cured by the publication of said notice in three (3) issues of the Philippine Journal. Notice by publication might have been proper if the address of petitioner were unknown. Since the officials of ATI knew the whereabouts of petitioner, they have no legal warrant to notify him thru the newspapers. We find no relevance to the reference of petitioner City Government to the presumption of regularity in the performance of duties as regards the service of the memorandum upon private respondent which dropped her from the rolls. In the first place, the presumption would only cover the proposition that the City Government did serve the memorandum at the house of private respondent. It does not prove however that she received the memorandum or was sufficiently informed that she had been dropped from the rolls. Still and all, the presumption stands on shaky foundation since, as noted by the Court of Appeals, even the delivery of the memorandum to private respondent's house is of doubtful veracity "in light of the non-submission by the petitioner of the corresponding proof of service, i.e., the affidavit of the party serving, containing a full statement of the date, place and manner of service." Besides, petitioner City Government of Makati City had actual and official knowledge of private respondent's incarceration by virtue of a valid process of detention (beginning September 1991 until she was declared innocent of the charges in 1994) as obvious from the admissions in the instant petition that left her no choice but to follow and obey, and even suffer in silence, a lawful order of the court, although actually unjust to her. Petitioner's knowledge thereof, which obliges it to send the notice to where private respondent was detained, cannot be denied. Thus [25]

x x x x 2.02 On September 11, 1991, she was arrested on a charge of kidnapping with serious physical injuries and consequently Criminal Case No. 88357 was filed against her at the Regional Trial Court of Pasig, Metro Manila, Branch 166 x x x x 2.03 During the pendency of the criminal case, Galzote remained in jail without filing any application for leave with the then Municipality

of Makati. On January 21, 1993 she was dropped from the rolls for her continued absence without official leave for more than a year.[26] The attention of the Court is invited to the cases of Ramo v. Elefao and Quezon v. Borromeo, which dwell on the immateriality of sending the notice to drop the employees concerned from the rolls. But these cases, sadly, are not in point.
[27] [28]

In Ramo the Dean of the Graduate Studies of the Leyte Normal School abandoned the deanship of the school and transferred to the National Manpower and Youth Council from where she was deriving her salary from the time she went on leave from the school. It must be stressed that it was the Dean herself who by desire and choice refused to report for work at the Leyte Normal School, her former employer. The case of Quezon involved an erring Chief Nurse of the Iligan City Hospital who went on an extended study leave despite the clear instructions for her to return to work immediately, and the absence of any legal impediment to her prompt compliance with the order. Besides the voluntary act of the Chief Nurse to refuse the employment, her employer did not also excuse her from filing a leave application. In other words, what the Ramo and Quezon cases resolved was the adamant refusal of the employees concerned to return to work by their own choosing and the consistent demand of their respective employers to immediately resume their duties. In contrast, the instant case involves the technicality of private respondent's failure to file a leave application on account of the representation of petitioner City Government to suspend her from work until her criminal case was terminated. It also refers to the legal and physical impediment of a pending criminal case that prevented her from reporting for work, a situation she did not wish for, much less cherish. Being the sole provider of her children, the employment could not have but meant so much to her and her family. Clearly, therefore, Ramo and Quezon cases do not apply to the case before us. What should indeed apply is our ruling in Gonzales v. Civil Service Commission where we held that due process demands serving upon the employee himself the notice dropping him from the rolls. InGonzales, the government sat on the application for leave for an unreasonable period of time and the only time it acted on the application was to drop the employee unceremoniously from the rolls. This factual setting in Gonzales fits snugly into the instant case where the City Government ofMakati City slept on the
[29]

request of private respondent to reinstate her on the basis of the condition in the order suspending her, i.e., her reinstatement upon her acquittal; instead, after three (3) long years, without prior warning and out of the blue, petitioner acted adversely by dropping her from the service for not filing an application for leave. The action of herein petitioner cuts too deeply into private respondent's right to continue her employment in the government and unduly dilutes the constitutional guarantees of security of tenure and due process. The holding of the Civil Service Commission that private respondent was on automatic leave of absence during the period of her detention must be sustained. The CSC is the constitutionally mandated central personnel agency of the Government tasked to "establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service" and "strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability." Besides, the Administrative Code of 1987 further empowers the CSC to "prescribe, amend, and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws," and for matters concerning leaves of absence, the Code specifically vests the CSC to ordain [30] [31] [32]

Sec. 60. Leave of Absence. - Officers and employees in the Civil Service shall be entitled to leave of absence, with or without pay, as may be provided by law and the rules and regulations of the Civil Service Commission in the interest of the service. Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated 27 December 1991 entitled Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws which it has several times amended through memorandum circulars. It devotes Rule XVI to leaves of absence. Petitioner City Government relies upon Secs. 20 and 35 to debunk the CSC ruling of an automatic leave of absence. Significantly, these provisions have been amended so that Sec. 20 of the Civil Service Rules is now Sec. 52 of Rule XVI, on Leave of Absence, of Resolution No. 91-1631 dated 27 December 1991 as amended by CSC MC No. 41, s. 1998, and Sec. 35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999. While Sec. 20 or Sec. 52 still reads Approval of vacation leave. - Leave of absence for any reason other than illness of an official or employee or of any member of his immediate family must be contingent upon the needs of the service. Hence, the grant of vacation leave shall be at the discretion of the head of department/agency,

Sec. 35 or Sec. 63 now provides Effect of absences without approved leave. - An official or an employee who is continuously absent without approved leave for at least thirty (30) working days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice. He shall, however, be informed, at his address appearing on his 201 files or at his last known written address, of his separation from the service, not later than five (5) days from its effectivity x x x x As a general rule Secs. 20 and 52, as well as Secs. 35 and 63, require an approved leave of absence to avoid being on AWOL. However, these provisions cannot be interpreted as exclusive and referring only to one mode of securing the approval of a leave of absence which would require an employee to apply for it, formalities and all, before exceeding thirty (30) days of absence in order to avoid being dropped from the rolls. There are, after all, other means of seeking and granting an approved leave of absence, one of which is the CSC recognized rule ofautomatic leave of absence under specified circumstances. As the CSC states in its assailed Resolution [33] [34]

In a similar case (Cenon Vargas, CSC Resolution Nos. 94-2795 and 95-5559), the Commission said When Mr. Vargas was in jail, his services were considered automatically suspended. He could not be expected to file his corresponding application for leave of absence, because whether he likes it or not he could not possibly report to work. He is considered on automatic leave of absence for the period of his detention in jail. Finally, Vargas had been acquitted of the criminal charges levelled against him. Since no separate administrative case was filed against him, there is no basis to separate him from the service. Based on the abovementioned decision, Galzote is excused from filing her leave of absence because she could not report to work. She is therefore on automatic leave of absence for the period of her detention there being no evidence to show that Galzote deliberately absented herself from work. Besides, her act of requesting the Municipal Personnel Officer for reinstatement after she was released from jail shows that she had no intention to go on AWOL.[35] As properly noted, CSC was only interpreting its own rules on leave of absence and not a statutory provision in coming up with this uniform rule. Undoubtedly, the CSC like any other agency has the power to interpret
[36]

its own rules and any phrase contained in them with its interpretation significantly becoming part of the rules themselves. As observed in West Texas Compress & Warehouse Co. v. Panhandle & S.F. Railing Co. [37]

In construing the above and similar antecedent rules bearing on the same subject, the railroad commission of this state has, for many years, uniformly officially construed it to give to the railroad company the right to designate and select the compress at which the cotton is to be compressed either at origin, in transit or at destination. Since the commission is an instrumentality of the state, exercising delegated powers, its orders are of the same force as would be a like enactment by the Legislature. It therefore follows that the interpretation officially placed on the order or rule by the commission becomes a part of the rule. Further, the rule is susceptible of no other interpretation (underscoring supplied).[38] This principle is not new to us. In Geukeko v. Araneta this Court upheld the interpretation of the Department of Agriculture and Commerce of its own rules of procedure in suspending the period of appeal even if such action was nowhere stated therein. We said [39]

The main question at issue hinges on the interpretation of Section 2 of the Lands Administrative Order No. 6, promulgated by the Secretary of Agriculture and Commerce on May 1, 1934, providing for the filing of appeals from decisions or orders of the Director of Lands to the said Department Secretary, which reads as follows: SEC. 2. APPEAL FROM DECISION OR ORDER OF THE DIRECTOR OF LANDS, MOTION FOR RECONSIDERATION. An appeal shall lie from a decision of the Director of Lands to the Secretary of Agriculture and Commerce within a period of sixty (60) days to be counted from the date the interested party received notice thereof unless a motion for reconsideration is filed within the said period, in which case, appeal shall be made within sixty (60) days from his receipt of notice of the order or decision of the Director of Lands disposing of the motion for reconsideration x x x x This Lands Administrative Order No. 6 governing the promulgation of decisions and orders of the Director of Lands and providing for the prescriptive period within which appeals may be interposed was issued pursuant to the provisions of section 79(b) of the Revised Administrative Code, section 5 of Act No. 2874 and Act No. 3038. x x x x Looking at the question at issue in this case independently of the aforecited authorities, it may be asked: After the civil cases filed by the sublessees were thrown out of court, could they still invoke administrative relief by appealing to the Secretary of Agriculture and Natural Resources? Said Administrative

official answers in the affirmative, maintaining that the period of 60 days provided for by section 2 of the Lands Administrative Order No. 6 aforequoted has not yet prescribed, it being the adopted policy of their office to consider the filing of civil actions in court as suspending the running of said period. It must be remembered that Lands Administrative Order No. 6 is in the nature of procedural rules promulgated by the Secretary of Agriculture and Natural Resources pursuant to the power bestowed on said administrative agency to promulgate rules and regulations necessary for the proper discharge and management of the functions imposed by law upon said office. x x x x Recognizing the existence of such rule-making authority, what is the weight of an interpretation given by an administrative agency to its own rules or regulations? Authorities sustain the doctrine that the interpretation given to a rule or regulation by those charged with its execution is entitled to the greatest weight by the Court construing such rule or regulation, and such interpretation will be followed unless it appears to be clearly unreasonable or arbitrary (42 Am. Jur. 431). It has also been said that: An administrative body has power to interpret its own rules which have the force and effect of law, and such an interpretation becomes part of the rule (Foley vs. Benedict, 122 Tex 193, 55 SW [2d] 805, 86 ALR 477). x x x x The contemporaneous construction of a statute (and similarly of rules and regulations) by the executive officers of the government whose duty it is to execute it is entitled to great respect, and should ordinarily control the construction of the statute by the courts (United States vs. Philbrick, 120 U.S. 52, 30 L Ed. 559). x x x x In this connection, We can also say that the interpretation given by the Department of Agriculture and Natural Resources to the provisions of section 2 of Lands Administrative Order No. 6 appears to be reasonable for it merely reflects the intent of the law in placing the disposition of lands within the Tambobong Estate in the hands of the officials of the Land Department (Executive Order No. 376; Commonwealth Act No. 539; Lands Administrative Order No. R-3). The underlying idea seems to be that those officials are considered in a better position to decide controversies regarding the disposition of said Estate (underscoring supplied). The same precept was enunciated in Bagatsing v. Committee on Privatization where we upheld the action of the Commission on Audit (COA) in validating the sale of Petron Corporation to Aramco Overseas Corporation on the basis of COA's interpretation of its own circular that set bidding and audit guidelines on the disposal of government assets [40]

The COA itself, the agency that adopted the rules on bidding procedure to be followed by government offices and corporations, had upheld the validity and legality of the questioned bidding. The interpretation of an agency of its own rules should be given

more weight than the interpretation by that agency of the law it is merely tasked to administer (underscoring supplied). Given the greater weight accorded to an agency's interpretation of its own rules than to its understanding of the statute it seeks to implement, we simply cannot set aside the former on the same grounds as we would overturn the latter. More specifically, in cases where the dispute concerns the interpretation by an agency of its own rules, we should apply only these standards: "Whether the delegation of power was valid; whether the regulation was within that delegation; and if so, whether it was a reasonable regulation under a due process test." An affirmative answer in each of these questions should caution us from discarding the agency's interpretation of its own rules.
[41]

To set aside the CSC ruling will not be consistent with the established principle above stated. Rejecting the CSC ruling on an automaticleave of absence solely for want of a provision expressly and specifically allowing such leave would erroneously repudiate the difference between the agency's own understanding of its rules and its interpretation of a statute. The difference is important and should not be glossed over to avoid compromising the authority of the CSC as the constitutionally mandated central personnel agency of the Government. In this regard, the rule ofautomatic leave of absence clearly falls within the constitutionally delegated power of the CSC and is reasonable under the circumstances to address absences from work which are not attributable to the concerned government employee. Verily, if petitioner City Government plainly applied the proper standards, it would have easily implemented the CSCs institution of an automatic leave of absence, and consequently avoided declaring private respondent on AWOL. It is hinted that the purported automatic leave of absence is a non-existent rule hence CSC has no power to interpret such non-existent provision; further, that the CSC has no power to provide for exemptions since none is stated in the CSC rules. If the rule on automatic leave of absence were already written in the CSC rules or truly an existing provision therein, then there would have been no reason for the instant case to ensue and be vigorously disputed. In fact, if such legal concept were already in place, the CSC would have no basis for interpreting its rules since all it had to do was to implement them. Actually, what the CSC interpreted in the case at bar were Secs. 20, 35 and other related provisions of the CSC rules on the requirement of an approved leave of absence.

Section 20 of the CSC Rules allows absences even without prior approved leave, e.g., in case of illness. Thus, "[l]eave of absence for any reason other than illness of an official or employee or of any member of his immediate family must be contingent upon the needs of the service. Hence, the grant of vacation leave shall be at the discretion of the head of department/agency." Obviously, illness cannot be scheduled and is beyond the control of the absent employee so that contingency upon the needs of the service would be irrelevant. It is enough that the employer be informed of the absent employee's illness, which information is the effective substitute for a prior leave application. But situations of illness are not the only instances of force majeure; other events beyond the control of the employee may also force him to be absent from work, such as when the employee himself is kidnapped or arrested and detained for alleged crimes. It is the latter cases, akin to predicaments of illness, that the CSC sought to address in interpreting the CSC rules on leave of absence as including or contemplating an automatic leave of absence. In these items of force majeure, the employee is excused from filing an application for leave of absence provided that he informs the employer of the unfortunate event underlying his absence. In the instant case, we believe that private respondent has sufficiently informed petitioner City Government of her predicament for which no logical purpose arises for a prior leave application. Significantly, the rule on automatic leave of absence is part and parcel of the authority to drop employees from the rolls under Sec. 35 or Sec. 63 of the CSC Rules for it tempers the exercise of such authority where the absences are beyond the control of the concerned employee. As explained by CSC Dropping from the rolls of an employee who fails to file an application for leave during her absence is a non-disciplinary measure provided for under Section 35, Rule XVI of the Omnibus Rules Implementing Book V of Executive Order No. 292 x x x x Be it noted that the main concept of dropping from the rolls is the refusal of an employee to report for work or to go on absence without official leave (AWOL) despite the employers notice to report. Such refusal to be a ground therefor is, of course, anchored on the fact that there is no other impediment on the part of the employee concerned which would prevent him from filing said leave application (underscoring supplied).[42] Indeed no tinge of arbitrariness can be ascribed to the concept of automatic leave of absence. This kind of leave of absence is the substantial equivalent in the public sector of our ruling in Magtoto v. NLRC where we considered a worker to have been on leave of absence without pay pending resolution of a criminal complaint for rebellion against him. We ruled [43]

The employer tries to distance itself from the detention by stressing that the petitioner was dismissed due to prolonged absence. However, Mr. Magtoto could not report for work because he was in a prison cell. The detention cannot be divorced from prolonged absence. One caused the other. Since the causes for the detention, which in turn gave the employer a ground to dismiss the petitioner, proved to be nonexistent, we rule that the termination was illegal and reinstatement is warranted x x x x It was beyond the petitioner's power to limit the duration of his unfounded detention. It was a matter purely within the discretion of the military authorities. It was then the contention of the military that not even the courts of justice should inquire into the causes and the duration of detentions for rebellionrelated offenses x x x x Equitable considerations favor the petitioner. The employer is a stable company with a large work force x x x. The petitioner is a mere clerk. It should not be difficult to find another item for him. As between the employee and the employer, the latter is in a singularly better position to shoulder the unfortunate consequences of the unfounded detention. Thus, the remedy left for the petitioner is reinstatement to a substantially equivalent position x x x x (underscoring supplied).[44] The same concept may also be found in Sec. 677 of The Revised Manual Instructions to Treasurers [45]

The attendance of a witness in his own behalf, to secure his exoneration of charges or matter alleged against him is attendance for his own benefit. If he is not under suspension, the time consumed in such attendance shall be charged to his leave, if he has any. Otherwise he shall be considered on leave without pay x x x x When the criminal charges filed are not the direct result of an act performed by him in connection with his official duties, his forced absences from duty resulting from his arrest and required attendance in court may not be considered official. He shall not in such case be entitled to salary (underscoring supplied). Neither do we doubt that the CSC has the power to allow exemptions from prior filing of leave applications. This power logically flows from the task of the CSC to regulate civil service in the country as ordained in the Constitution and mandated in the Administrative Code of 1987. The CSC Rules themselves (Sec. 20 or Sec. 35) do not limit the powers of the CSC in this regard to cases of illness only. With reasonableness as the standard, the CSC is far from being presumptuous when it states that other instances of force majeure (such as the arrest and detention of a civil servant for a crime she did not commit) may excuse the prior filing of an approved leave of absence. This determination is an exercise of theCSC's constitutional mandates - certainly these mandates are not matters of mere excuses.

The case of private respondent Galzote is not the first time that this Court has done away with the requirement of an approved leave of absence. In University of the Philippines v. Civil Service Commission we disregarded the literal import of Sec. 33 (equivalent of Secs. 35 and 63 above-quoted) of Rule XVI of the Revised Civil Service Rules in recognition of UP's constitutionally guaranteed academic freedom to allow the university to continue employing a teacher-employee who had been on AWOL. UP teaches that although academic freedom is not written in the CSC Rules on leave of absence, we can factor such freedom in establishing the validity of UP's action to override it. We therefore advocate equal treatment for CSC's reasonable implementation of its own rules in the specific and actual case of private respondent, an exercise which like UP's academic freedom also has the Constitution as its basis. Truly, if we could accept the exemption of UP from the CSC Rules on grounds not stated therein, i.e. academic freedom, then equally, if not with more reason, must we recognize the CSC's accepted authority to incorporate as part of the CSC Rules its own interpretations thereof.
[46] [47]

In two (2) other decisions of this Court, we treated with compassion an absence although without prior leave for causes beyond the control of the absent employee. In Re: Pedro P. Tiongson, we ruled that "the misfortunes that were visited upon his family and which prevented him from attending office were not of his own making and were beyond his control. It was but natural for him to move his family in the face of danger from his son's enemies and when he was in the province, even if he wanted to return, he could not do so on account of the floods." In Makabuhay v. Manuel we recognized that an employee may be forced to go on leave even if he no longer has any leave credits because of the administrative case that was filed against him.
[48] [49] [50]

Lastly, petitioner City Government cannot pin the blame on private respondent Galzote for her failure to assume her work. Clearly, she reported for work as soon as she was free to do so, but was unfortunately turned back by petitioner City Government. In locking her out of her job, the City Government illegally deprived her of the opportunity to work and so must be held liable for such unlawful action. All in all, we hold that private respondent must be reinstated as Clerk III or a position of equivalent rank and compensation in the City Government. She must also be paid back wages and other benefits lawfully due her counted from 19 October 1994 when she presented herself for resumption of duties but was refused. This is very much consistent with the elementary rule that a government official or employee who had been illegally dismissed and whose reinstatement had later been ordered is considered as not having left his office, so that he is

entitled to all the rights and privileges that should accrue to him by virtue of the office that he held. Needless to stress, if private respondent's request for reinstatement with back wages is granted, the benefits she will derived will not even be enough to compensate her for the untold sufferings and privations she went through while in jail, away from her growing children. Perhaps only a miracle could have provided for them in her forced absence. Now we say, enough should be enough. Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization) and RA 7160 (The Local Government Code of 1991), civil servants who are found illegally dismissed or retrenched are entitled to full pay for the period of their separation. Our final point. An efficient and honest bureaucracy is never inconsistent with the emphasis on and the recognition of the basic rights and privileges of our civil servants or, for that matter, the constitutional mandates of the Civil Service Commission. In fact only from an enlightened corps of government workers and an effective CSC grows the professionalization of the bureaucracy. Indeed the government cannot be left in the lurch; but neither could we decree that government personnel be separated from their jobs indiscriminately regardless of fault. The fine line between these concerns may be difficult to clearly draw but if we only exerted extra effort to rebel against the allure of legal over-simplification, justice would have been done where it is truly due. WHEREFORE, the petition of the City Government of Makati City is DENIED and the Decision of the Court of Appeals affirming Resolution No. 960153 of the Civil Service Commission ordering the immediate reinstatement of private respondent EUSEBIA R. GALZOTE as Clerk III or a position of equivalent rank and compensation in the rank and file service of petitioner City Government of Makati City with back wages from 19 October 1994 up to the time of her actual reinstatement is likewise AFFIRMED. SO ORDERED. Puno, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and SandovalGutierrez, JJ., concur. Davide, Jr., C.J., Melo, Mendoza, Quisumbing, and Carpio, JJ., join the dissent of J. Panganiban. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion.

Panganiban, J., see dissenting opinion.

FIRST DIVISION

[G.R. No. 137621. February 6, 2002]

HAGONOY MARKET VENDOR ASSOCIATION, petitioner, MUNICIPALITY OF HAGONOY, BULACAN,respondent. DECISION

PUNO, J.:

vs.

Laws are of two (2) kinds: substantive and procedural. Substantive laws, insofar as their provisions are unambiguous, are rigorously applied to resolve legal issues on the merits. In contrast, courts generally frown upon an uncompromising application of procedural laws so as not to subvert substantial justice. Nonetheless, it is not totally uncommon for courts to decide cases based on a rigid application of the so-called technical rules of procedure as these rules exist for the orderly administration of justice. Interestingly, the case at bar singularly illustrates both instances, i.e., when procedural rules are unbendingly applied and when their rigid application may be relaxed. This is a petition for review of the Resolution[1] of the Court of Appeals, dated February 15, 1999, dismissing the appeal of petitioner Hagonoy Market Vendor Association from the Resolutions of the Secretary of Justice for being formally deficient. The facts: On October 1, 1996, the Sangguniang Bayan of Hagonoy, Bulacan, enacted an ordinance, Kautusan Blg. 28,[2] which increased the stall rentals of the market vendors in Hagonoy. Article 3 provided that it shall take effect upon approval. The subject ordinance was posted from November 4-25, 1996.[3] In the last week of November, 1997, the petitioners members were personally given copies of the approved Ordinance and were informed that it shall be enforced in January, 1998. On December 8, 1997, the petitioners President filed an appeal with the Secretary of Justice assailing the constitutionality of the tax ordinance. Petitioner claimed it was unaware of the posting of the ordinance. Respondent opposed the appeal. It contended that the ordinance took effect on October 6, 1996 and that the ordinance, as approved, was posted as required by

law. Hence, it was pointed out that petitioners appeal, made over a year later, was already time-barred. The Secretary of Justice dismissed the appeal on the ground that it was filed out of time, i.e., beyond thirty (30) days from the effectivity of the Ordinance on October 1, 1996, as prescribed under Section 187 of the 1991 Local Government Code. Citing the case of Taada vs. Tuvera,[4]the Secretary of Justice held that the date of effectivity of the subject ordinance retroacted to the date of its approval in October 1996, after the required publication or posting has been complied with, pursuant to Section 3 of said ordinance.[5] After its motion for reconsideration was denied, petitioner appealed to the Court of Appeals. Petitioner did not assail the finding of the Secretary of Justice that their appeal was filed beyond the reglementary period. Instead, it urged that the Secretary of Justice should have overlooked this mere technicality and ruled on its petition on the merits. Unfortunately, its petition for review was dismissed by the Court of Appeals for being formally deficient as it was not accompanied by certified true copies of the assailed Resolutions of the Secretary of Justice.[6] Undaunted, the petitioner moved for reconsideration but it was denied. [7] Hence, this appeal, where petitioner contends that:
I

THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN ITS STRICT, RIGID AND TECHNICAL ADHERENCE TO SECTION 6, RULE 43 OF THE 1997 RULES OF COURT AND THIS, IN EFFECT, FRUSTRATED THE VALID LEGAL ISSUES RAISED BY THE PETITIONER THAT ORDINANCE (KAUTUSAN) NO. 28 WAS NOT VALIDLY ENACTED, IS CONTRARY TO LAW AND IS UNCONSTITUTIONAL, TANTAMOUNT TO AN ILLEGAL EXACTION IF ENFORCED RETROACTIVELY FROM THE DATE OF ITS APPROVAL ON OCTOBER 1, 1996.
II

THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN DENYING THE MOTION FOR RECONSIDERATION NOTWITHSTANDING PETITIONERS EXPLANATION THAT ITS FAILURE TO SECURE THE CERTIFIED TRUE COPIES OF THE RESOLUTIONS OF THE DEPARTMENT OF JUSTICE WAS DUE TO THE INTERVENTION OF AN ACT OF GOD TYPHOON LOLENG, AND THAT THE ACTUAL COPIES RECEIVED BY THE PETITIONER MAY BE CONSIDERED AS SUBSTANTIAL COMPLIANCE WITH THE RULES.
III

PETITIONER WILL SUFFER IRREPARABLE DAMAGE IF ORDINANCE/KAUTUSAN NO. 28 BE NOT DECLARED NULL AND VOID AND IS ALLOWED TO BE ENFORCED RETROACTIVELY FROM OCTOBER 1, 1996, CONTRARY TO THE GENERAL RULE, ARTICLE 4 OF THE CIVIL CODE, THAT NO LAW SHALL HAVE RETROACTIVE EFFECT.
The first and second assigned errors impugn the dismissal by the Court of Appeals of its petition for review for petitioners failure to attach certified true copies of the assailed Resolutions of the Secretary of Justice. The petitioner insists that it had good reasons for its failure to comply with the rule and the Court of Appeals erred in refusing to accept its explanation. We agree. In its Motion for Reconsideration before the Court of Appeals, [8] the petitioner satisfactorily explained the circumstances relative to its failure to attach to its appeal certified true copies of the assailed Resolutions of the Secretary of Justice, thus:

x x x (D)uring the preparation of the petition on October 21, 1998, it was raining very hard due to (t)yphoon Loleng. When the petition was completed, copy was served on the Department of Justice at about (sic) past 4:00 p.m. of October 21, 1998, with (the) instruction to have the Resolutions of the Department of Justice be stamped as certified true copies. However, due to bad weather, the person in charge (at the Department of Justice) was no longer available to certify to (sic) the Resolutions. The following day, October 22, 1998, was declared a non-working holiday because of (t)yphoon Loleng. Thus, petitioner was again unable to have the Resolutions of the Department of Justice stamped certified true copies. In the morning of October 23, 1998, due to time constraint(s), herein counsel served a copy by personal service on (r)espondents lawyer at (sic) Malolos, Bulacan, despite the flooded roads and heavy rains. However, as the herein counsel went back to Manila, (official business in) government offices were suspended in the afternoon and the personnel of the Department of Justice tasked with issuing or stamping certified true copies of their Resolutions were no longer available. To avoid being time-barred in the filing of the (p)etition, the same was filed with the Court of Appeals as is.
We find that the Court of Appeals erred in dismissing petitioners appeal on the ground that it was formally deficient. It is clear from the records that the petitioner exerted due diligence to get the copies of its appealed Resolutions certified by the Department of Justice, but failed to do so on account of typhoon Loleng. Under the circumstances, respondent appellate court should have tempered its strict

application of procedural rules in view of the fortuitous event considering that litigation is not a game of technicalities.[9] Nonetheless, we hold that the petition should be dismissed as the appeal of the petitioner with the Secretary of Justice is already time-barred. The applicable law is Section 187 of the 1991 Local Government Code which provides:

SEC. 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures; Mandatory Public Hearings. - The procedure for the approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof: Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and accrual and payment of the tax, fee or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings.
The aforecited law requires that an appeal of a tax ordinance or revenue measure should be made to the Secretary of Justice within thirty (30) days from effectivity of the ordinance and even during its pendency, the effectivity of the assailed ordinance shall not be suspended. In the case at bar, Municipal Ordinance No. 28 took effect in October 1996. Petitioner filed its appeal only in December 1997,more than a year after the effectivity of the ordinance in 1996. Clearly, the Secretary of Justice correctly dismissed it for being time-barred. At this point, it is apropos to state that the timeframe fixed by law for parties to avail of their legal remedies before competent courts is not a mere technicality that can be easily brushed aside. The periods stated in Section 187 of the Local Government Code are mandatory.[10] Ordinance No. 28 is a revenue measure adopted by the municipality of Hagonoy to fix and collect public market stall rentals. Being its lifeblood, collection of revenues by the government is of paramount importance. The funds for the operation of its agencies and provision of basic services to its inhabitants are largely derived from its revenues and collections. Thus, it is essential that the validity of revenue measures is not left uncertain for a considerable length of time.[11] Hence, the law provided a time limit for an aggrieved party to assail the legality of revenue measures and tax ordinances. In a last ditch effort to justify its failure to file a timely appeal with the Secretary of Justice, the petitioner contends that its period to appeal should be counted not from the time the ordinance took effect in 1996 but from the time its members were personally given copies of the approved ordinance in November 1997. It insists that it was unaware of the approval and effectivity of the subject ordinance in 1996 on two (2)

grounds: first, no public hearing was conducted prior to the passage of the ordinance and, second, the approved ordinance was not posted. We do not agree. Petitioners bold assertion that there was no public hearing conducted prior to the passage of Kautusan Blg. 28 is belied by its own evidence. In petitioners two (2) communications with the Secretary of Justice,[12] it enumerated the various objections raised by its members before the passage of the ordinance in several meetings called by the Sanggunian for the purpose. These show beyond doubt that petitioner was aware of the proposed increase and in fact participated in the public hearings therefor. The respondent municipality likewise submitted the Minutes and Report of the public hearings conducted by the Sangguniang Bayans Committee on Appropriations and Market on February 6, July 15 and August 19, all in 1996, for the proposed increase in the stall rentals.[13] Petitioner cannot gripe that there was practically no public hearing conducted as its objections to the proposed measure were not considered by the Sangguniang Bayan. To be sure, public hearings are conducted by legislative bodies to allow interested parties to ventilate their views on a proposed law or ordinance. These views, however, are not binding on the legislative body and it is not compelled by law to adopt the same. Sanggunian members are elected by the people to make laws that will promote the general interest of their constituents. They are mandated to use their discretion and best judgment in serving the people. Parties who participate in public hearings to give their opinions on a proposed ordinance should not expect that their views would be patronized by their lawmakers. On the issue of publication or posting, Section 188 of the Local Government Code provides:

Section 188. Publication of Tax Ordinance and Revenue Measures. Within ten (10) days after their approval, certified true copies of all provincial, city, and municipal tax ordinances or revenue measures shall be published in full for three (3) consecutive days in a newspaper of local circulation; Provided, however, That in provinces, cities and municipalities where there are no newspapers of local circulation, the same may be posted in at least two (2) conspicuous and publicly accessible places. (emphasis supplied)
The records is bereft of any evidence to prove petitioners negative allegation that the subject ordinance was not posted as required by law. In contrast, the respondent Sangguniang Bayan of the Municipality of Hagonoy, Bulacan, presented evidence which clearly shows that the procedure for the enactment of the assailed ordinance was complied with. Municipal Ordinance No. 28 was enacted by the Sangguniang Bayan of Hagonoy on October 1, 1996. Then Acting Municipal Mayor Maria Garcia Santos approved the Ordinance on October 7, 1996. After its approval, copies of the Ordinance were given to the Municipal Treasurer on the same day. On November 9, 1996, the Ordinance was approved by the Sangguniang

Panlalawigan. The Ordinance was posted during the period from November 4 25, 1996 in three (3) public places, viz: in front of the municipal building, at the bulletin board of the Sta. Ana Parish Church and on the front door of the Office of the Market Master in the public market.[14] Posting was validly made in lieu of publication as there was no newspaper of local circulation in the municipality of Hagonoy. This fact was known to and admitted by petitioner. Thus, petitioners ambiguous and unsupported claim that it was only sometime in November 1997 that the Provincial Board approved Municipal Ordinance No. 28 and so the posting could not have been made in November 1996[15] was sufficiently disproved by the positive evidence of respondent municipality. Given the foregoing circumstances, petitioner cannot validly claim lack of knowledge of the approved ordinance. The filing of its appeal a year after the effectivity of the subject ordinance is fatal to its cause. Finally, even on the substantive points raised, the petition must fail. Section 6c.04 of the 1993 Municipal Revenue Code and Section 191 of the Local Government Code limiting the percentage of increase that can be imposed apply to tax rates, not rentals. Neither can it be said that the rates were not uniformly imposed or that the public markets included in the Ordinance were unreasonably determined or classified. To be sure, the Ordinance covered the three (3) concrete public markets: the two-storey Bagong Palengke, the burnt but reconstructed Lumang Palengke and the more recent Lumang Palengke with wet market. However, the Palengkeng Bagong Munisipyo or Gabaldon was excluded from the increase in rentals as it is only a makeshift, dilapidated place, with no doors or protection for security, intended for transient peddlers who used to sell their goods along the sidewalk.[16] IN VIEW WHEREOF, the pronouncement as to costs. SO ORDERED. Davide, Jr., C.J. (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur. petition is DISMISSED for lack of merit. No

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 147909 April 16, 2002

MAUYAG B. PAPANDAYAN, JR., petitioner, vs. THE COMMISSION ON ELECTIONS and FAHIDA P. BALT, respondents. MENDOZA, J.: This is a petition for certiorari to annul the resolution, dated May 8, 2001, of the Second Division1 of the Commission on Elections (COMELEC), disqualifying petitioner Mauyag B. Papandayan, Jr. as a candidate for municipal mayor of the Municipality of Tubaran, Province of Lanao del Sur in the May 14, 2001 elections, and the resolution of the COMELEC en banc, dated May 12, 2001, denying petitioners motion for reconsideration. In the May 14, 2001 elections, three candidates ran for the position of mayor of Tubaran, Lanao del Sur, namely: petitioner Mauyag B. Papandayan, Jr., respondent Fahida P. Balt, who was the incumbent mayor seeking reelection, and Maiko Hassan Bantuas. Respondent Balt sought the disqualification of petitioner in SPC Case No. 01-114 of the COMELEC, alleging that petitioner was not a resident of Barangay Tangcal in Tubaran, Lanao del Sur but a permanent resident of Bayang, Lanao del Sur. In support of her allegation, respondent submitted the joint affidavit,2 dated February 14, 2001, of Barangay Chairman Hadji Bashir Ayonga and two members of the Sangguniang Barangay of Tangcal, Tubaran, Hadji Taher Batawe and Saadori Buat, stating that petitioner never resided in Barangay Tangcal, Tubaran as they personally knew all the registered voters of the said barangay; that petitioner omitted to own nor lease any house in Barangay Tangcal; and that petitioners father, the late Mauyag Papandayan, Sr., who was a school superintendent, and his family were permanent residents of Bayang, Lanao del Sur. Respondent also submitted a similar affidavit,3 dated February 17, 2001, of Samoranao Sarip, a member of the Sangguniang Barangay of Tangcal. She averred that petitioner did not state in his Voter Registration Record,4 accomplished on May 8, 1999, the number of years and months (Annex D-1) he had been a resident of the Municipality of Tubaran. In his answer,5 petitioner claimed that he was a resident of No. 13 Barangay Tangcal in Tubaran; that he was the son of the late Mauyag Capal Papandayan, Sr., a former school superintendent, and Hadja Khalida Magangcong Balt; that both the Capal and Papandayan clans were natives of Tangcal, Tubaran, and the Magangcong clan were from Boribid, Tubaran while most of the Balt clan were residents of Bayang; that in 1990, he transferred his domicile from Bayang to Tangcal and stayed there with his wife Raina Guina Dimaporo, whose family and relatives were residents and natives of Tangcal, Tubaran; that he managed an agricultural land in Tubaran which he co-owned with his family; and that he filed in 1998 his certificate of candidacy for the position of municipal mayor of Tubaran, which he later withdrew. To support his allegations, petitioner presented the following: 1. Affidavit,6 dated March 8, 2001, of Taha C. Ali, Municipal Election Officer of the Office of the Assistant Regional Election Director of the COMELEC, Region XII, Iligan City, stating that, based on

the continuous verification of household members in Tubaran, petitioner and his wife lived at No. 13 Barangay Tangcal, Tubaran. 2. Affidavit of Witness,7 dated March 8, 2001, of Delgado Caontongan, stating that he was an elementary school teacher of Tubaran and that he was appointed Chairman of the Board of Election Inspectors (BEI) of Precinct No. 28-A in Tangcal, Tubaran in the May 8, 1999 registration of voters; that he personally received the Voter Registration Record of petitioner whom he knew to be a resident of Tubaran; and that he knew petitioner to be a qualified voter and, for that reason, he approved petitioners Voter Registration Record and included his name in the master list of voters in Precinct No. 28-A. 3. Certificate of Candidacy for Mayor8 of petitioner, filed on January 11, 2001, with the COMELEC stating, among other things, that he was born on October 14, 1964; that his place of birth was Marawi City; that he was employed as a municipal employee of a local government unit in Bayang; that he was a resident of Tangcal, Tubaran, Lanao del Sur; that he was a registered voter of Precinct No. 28-A in Barangay Tangcal, Tubaran, Lanao del Sur; and that his length of residency in the Philippines was 36 years and 10 months (Annex 3-A). 4. Affidavit of Witness,9 dated March 8, 2001, of Rafael Guina Dimaporo (brother of petitioners wife), stating that his family and the family of petitioner were residents of Tangcal, Tubaran; that his relatives on the maternal side (the Andag and the Guina clans) were natives of Barangays Tangcal and Datumanong, both in the Municipality of Tubaran; and that during the May 11, 1992 national and local elections, he was one of the mayoralty candidates who garnered the second highest number of votes. 5. Affidavit of Witness,10 dated March 8, 2001, of Sobair Tagtal, stating that he was a farmer and one of the share tenants of an agricultural land located in Tubaran, co-owned by petitioner and the latters siblings; that petitioner had been managing the land and residing in Tangcal, Tubaran since 1990; and that he knew petitioner filed his certificate of candidacy in the 1998 mayoralty election in Tubaran. 6. Certification,11 dated March 7, 2001, by Salem Buzar, Election Officer in Bayang, Lanao del Sur, certifying that petitioner was not registered as a voter of Bayang in the May 11, 1998 and May 14, 2001 elections. 7. Affidavit of Desistance,12 dated March 8, 2001, of Hadji Bashir Ayonga, stating that he was withdrawing the joint affidavit, dated February 14, 2001, which he had earlier executed, together with Hadji Taher Batawe and Saadori Buat, as he did not understand the consequences of signing the said affidavit and its contents had not been explained to him; that he did not know that the affidavit would be used in a disqualification case against petitioner who was a first cousin of his grandchildren; that he knew petitioner to be a registered voter and a candidate for municipal mayor in Tubaran; and that petitioner is a native of Tubaran because he is a descendant of Datu Sa Tatarikun Tangcal (Sumowa) on the paternal side and a legitimate member of the Sultanate of Boribid in Tubaran on the maternal side. 8. Affidavit of Desistance,13 dated March 8, 2001, of Samoranao Sarip, stating that he was withdrawing the affidavit, dated February 17, 2001, which he had earlier executed, as he did not understand the consequences of signing the said affidavit and its contents had not been explained to him; that he did not know that the affidavit would be used in a disqualification case against petitioner; that he knew petitioner to be a registered voter and a candidate for municipal mayor of Tubaran; and that petitioner is a native of Tubaran because he is a descendant of Datu Sa Tatarikun Tangcal

(Sumowa) on the paternal side and a legitimate member of the Sultanate of Boribid in Tubaran on the maternal side. In its resolution, dated May 8, 2001, the COMELEC (Second Division) in SPA No. 01-114 declared petitioner to be disqualified and ordered his name to be stricken off the list of candidates and all votes cast in his favor not to be counted but considered as stray votes. Citing the joint affidavit, dated February 14, 2001, of Hadji Bashir Ayonga, Hadji Taher Batawe, and Saadori Buat and the affidavit of Samoranao Sarip stating that petitioner had not at any time been a resident of Tangcal, Tubaran, the COMELEC ruled that it was the fact of petitioners residence, not the statement in his certificate of candidacy, which determined whether or not he had satisfied the residency requirement of one (1) year preceding the May 14, 2001 elections. In finding that petitioner never intended to relinquish his former domicile in Bayang, the COMELEC took note of the testimony of petitioner in the exclusion proceedings against him before the municipal trial court (Election Case Nos. 2001237-T to 2001-244-T), in which petitioner stated that he was living in Marawi City where he was the private secretary of Mayor Abdillah Ampatua. On May 14, 2001, elections were held in Tubaran. Petitioner was among those voted by the electorate for the position of municipal mayor. On May 15, 2001, he received a telegram14 from the COMELEC notifying him of the resolution, dated May 12, 2001, of the COMELEC en banc which denied his motion for reconsideration. On May 17, 2001, he filed the present petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction. Meanwhile, on May 19, 2001, petitioner filed a petition with the COMELEC (First Division) in SPC No. 01-039 seeking the issuance of an order directing the Board of Election Inspectors (BEI) of Tubaran to count and tally the ballots cast in his favor during the May 14, 2001 elections pursuant to COMELEC Resolution N. 4116. The said resolution provides that if the disqualification case has not become final and executory on the day of the election, the BEI shall tally and count the votes of the candidate declared disqualified. On the other hand, respondent filed a pre-proclamation case (SPC No. 01-259) in the COMELEC. On May 29, 2001, the First Division of the COMELEC (in SPC No. 01-039) issued an order suspending the proclamation of petitioner as the duly elected mayor of Tubaran pending the resolution of this present petition. However, despite the said order (in SPC No. 01-039), the Municipal Board of Canvassers of Tubaran proceeded with the proclamation of petitioner on June 3, 2001. Upon motion of respondent, therefore, the COMELEC (First Division), in an order, dated June 25, 2001, set aside the proclamation of petitioner, without prejudice to the filing of the appropriate charges against the members of the Board responsible for the proclamation.15 Thereafter, the COMELEC en banc issued a resolution, dated January 30, 2002, sustaining the annulment of the proclamation of petitioner and dismissing SPC No. 01-039 for being moot and academic. It appears that, as a consequence thereof, the incumbent Vice-Mayor of Tubaran assumed the position of mayor pursuant to the COMELEC en bancresolution dated January 30, 2002. On May 22, 2001, this Court required the COMELEC and respondent Fahida Balt to comment on the petition and, upon the posting of a bond by petitioner in the amount of P10,000.00, issued a temporary restraining order enjoining the COMELEC from implementing its resolutions of May 8 and May 12, 2001. In a manifestation,16 dated May 28, 2001, petitioner submitted the certificates of votes (Annexes A to A-30), duly signed by the BEI Chairman and his two members, showing that in the 31 precincts of

Tubaran, he obtained 1,744 votes [should be 1,730] votes, while respondent Balt and Bantuas obtained 1,528 votes [should be 1,540 votes] and 974 votes [should be 967 votes], respectively. Respondent countered that, despite these results, petitioner could not be proclaimed mayor as she had appealed from the ruling of the Municipal Board of Canvassers of Tubaran, wherein she sought the exclusion and the annulment of the election returns from certain precincts in Tubaran because of massive fraud, terrorism, and substitution of registered voters. After canvass of the election returns, the Municipal Board of Canvassers issued a Municipal Certificate of Canvass17 showing the following results: Petitioner Papandayan Respondent Balt Maiko Hassan Bantuas 1,744 votes 1,540 votes 968 votes

The Office of the Solicitor General filed a motion in lieu of a comment, recommending that this Court grant the present petition. It contends that the joint affidavit, dated February 14, 2001, of Barangay Chairman Hadji Bashir Ayonga and Sangguniang Barangay members Hadji Taher Batawe and Saadori Buat, stating that petitioner had not at any time been a resident of Tubaran, constituted hearsay evidence as the three affiants were never presented during the proceedings of the case. In fact, one of the affiants, Hadji Bashir Ayonga, later executed an Affidavit of Desistance, dated March 8, 2001, retracting his earlier statements. As for the statements made by petitioner in Election Case Nos. 2001-237-T to 2001-244-T, pending before the municipal trial court, that he was then "not residing" in Bayang but in Tubaran, Lanao del Sur although "living" in Marawi City, the Solicitor General says that the same does not necessarily mean that petitioner was not a resident of Tubaran as such answer merely means that he was previously living in Marawi City. In her comment, respondent insists that petitioner was not a resident of Tubaran but of Bayang. She contends that petitioner made misrepresentations in claiming that he filed his certificate of candidacy for mayor of Tubaran in the May 11, 1998 elections and that he was a registered voter in the May 11, 1998 elections; that when petitioner registered as a voter in Precinct No. 28-A in Tangcal, Tubaran on May 8, 1999, he refused to fill out the space corresponding to the period of his residency in Tubaran; that it was unusual for the BEI Chairman to execute an affidavit, stating therein that he allowed the registration of the petitioner because he had known the latter to be a "legitimate resident of [Tubaran] even prior to the May 8, 1999 registration"; that it was doubtful if the election officer of Tubaran really conducted a continuous verification of household members of Tubaran; and that the certification of the election officer of Bayang that petitioner was not a registered voter in Bayang during the May 11, 1998 and May 14, 2001 elections does not prove that he was a registered voter in Tubaran. Respondent argues that the COMELEC did not commit any "error of jurisdiction" to justify the grant of this petition for certiorari but, if at all, only an "error of judgment," which is correctible by ordinary appeal. In his reply to respondents comment, petitioner points out that respondent did not appear at the March 9, 2001 hearing of the disqualification case before the COMELEC; that of the six witnesses whom respondent said she was presenting, only two Hadji Taher Batawe and Saadori Buat appeared, and both merely affirmed their joint affidavit; that, although the cross-examination of the two was reset on March 12, 2001, they nevertheless failed to appear and thus deprived petitioners counsel of the opportunity to cross-examine them; that respondents four other witnesses Hadji Bashir Ayonga, Sultan Sarip Bilao, Osio Balbal, and Puno Balbal did not appear either; that instead Sultan Sarip Bilao later executed an affidavit18 denying his earlier statement that the petitioner was not a resident of Tubaran; and that the Second Division of the COMELEC and the COMELEC en banc did not conduct any hearing in the disqualification case and merely relied on the

recommendations submitted by the hearing officer. According to petitioner, while he filed his certificate of candidacy for mayor of Tubaran in the May 11, 1998 elections, the same was later withdrawn on his behalf by Casim A. Guro, his brother-in-law. This fact was corroborated by Macawaris P. Masanang, a sultan in Tubaran, who stated that he had been an Election Assistant of the COMELEC since 1978 and that, as such, he received petitioners certificate of candidacy, which was later withdrawn by Casim A. Guro on behalf of petitioner. After reviewing the records, we find the foregoing allegations of petitioner to be correct. Hence, his petition should be granted. First. Petitioner contends that the resolution, dated May 12, 2001, of the COMELEC en banc was not yet final and executory when the elections were held on May 14, 2001. Consequently, the Board of Election Inspectors of Tubaran, in the exercise of its ministerial duty, had to count the votes cast in his favor. Respondent, on the other hand, avers that the assailed resolution, dated May 12, 2001, of the COMELEC en banc had attained finality five (5) days thereafter, on May 17, 2001, as its enforcement had not been restrained by this Court within the said period. The temporary restraining order should thus be set aside, the same having been issued by this Court only on May 22, 2001. At the time the elections were held in May 14, 2001, the assailed resolution, dated May 12, 2001, had not become final and executory. Hence, the Board of Election Inspectors (BEI) was duty bound to tally and count the votes cast in favor of petitioner. As R.A. No. 6646, 6 provides: Effect of disqualification. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. On the other hand, COMELEC Resolution No. 4116, promulgated on May 7, 2001, in pertinent parts reads: RESOLUTION NO. 4116 This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification cases). Sec. 13, Rule 18, of the COMELEC Rules of Procedure on Finality of Decisions or Resolutions provides: "Sec. 13. Finality of Decisions or Resolutions. (a) In ordinary actions, special proceedings, provisional remedies, and special reliefs, a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. (b) In Special Actions and Special cases, a decision or resolution of the Commission en banc shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court.

(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special Actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation." Special Actions cases refer to the following: a) Petition to deny due course to certificate of candidacy; b) Petition to declare a candidate as nuisance candidate; c) Petition to disqualify a candidate; and d) Petition to postpone or suspend an election. .... Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on Special Actions cases (disqualification cases); the Commission RESOLVED, as it hereby RESOLVED, as follows: 1. the decision or resolution of the en banc of the Commission on disqualification cases shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court; 2. the decision or resolution of a Division on disqualification cases shall become final and executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed; 3. where the ground for the disqualification case is by reason of non-residence, citizenship, violation of election laws and other analogous cases and on the day of the election the resolution has not become final and executory, the BEI shall tally and count the votes of such disqualified candidate. (Emphasis supplied) Respondent, therefore, is in error in assuming that the issuance of a temporary restraining order by this Court within five (5) days after the date of the promulgation of the assailed resolution on May 12, 2001, of the COMELECen banc is the operative act that prevents it from attaining finality. The purpose of temporary restraining order was to enjoin the May 12, 2001 resolution of the COMELEC from being enforced despite the fact that, pursuant to COMELEC Resolution No. 4116, par. 3, as above quoted, the said resolution had not attained finality. Second. Petitioner alleges that the COMELEC gravely abused its discretion in declaring him disqualified on the ground that he is not a resident of Tubaran. On the other hand, respondent argues that whether or not petitioner is a resident of Tubaran is a factual issue which has been thoroughly passed upon and determined by the Second Division of the COMELEC and later by the COMELEC en banc. Respondent echoes the ruling of the COMELEC in its resolution of May 12, 2001, which said that, as an "administrative body and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, it has more than enough expertise in its field, and its findings or conclusions are generally respected and even given finality."

With due regard for the expertise of the COMELEC, we find the evidence to be insufficient to sustain its resolution. We agree with the Solicitor General, to the contrary, that petitioner has duly proven that, although he was formerly a resident of the Municipality of Bayang, he later transferred residence to Tangcal in the Municipality of Tubaran as shown by his actual and physical presence therein for 10 years prior to the May 14, 2001 elections. Section 39 of the Local Government Code (R.A. No. 7160) provides: Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan,sangguniang panglungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other language or dialect. Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to this is a determination whether there has been an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals,19 this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881). In Co v. Electoral Tribunal of the House of Representatives,20 respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino,21 applied the concept ofanimus revertendi or "intent to return," stating that his absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoang revealed that he always had animus revertendi. In Abella v. Commission on Elections and Larrazabal v. Commission on Elections,22 it was explained that the determination of a persons legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her

husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place. In Romualdez v. RTC, Br. 7, Tacloban City,23 the Court held that "domicile" and "residence" are synonymous. The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez established his residence during the early 1980s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA Peoples Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled withanimus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. The record shows that when petitioner and his wife Raida Guina Dimaporo got married in 1990, they resided in Tangcal, Tubaran. From then on, there was manifest intention on the part of petitioner to reside in Tubaran, which he deemed to be the place of his conjugal abode with his wife. The fact that he and his wife transferred residence from Bayang to Tubaran shows that petitioner was relinquishing his former place of residence in Bayang and that he intended Tubaran to be his place of domicile. Although petitioner worked as a private secretary of the mayor of Bayang, he went home to Tubaran everyday after work. This is proof of animus manendi. Further, the evidence shows that in the May 11, 1998 election, petitioner was registered as a voter in Tubaran and that in fact he filed his certificate of candidacy although he later withdrew the same. In the May 8, 1999 registration of voters, he was again registered as a voter in Precinct No. 28-A of Barangay Tangcal in Tubaran. In addition, the following bolster petitioners claim that since 1990 he has been a resident of Tubaran: (a) the continuous verification of household members in Tubaran conducted by the election officer showed that petitioner and his wife were members of household No. 13 in Barangay Tangcal, Tubaran; (b) petitioner co-owned an agricultural land in Tubaran; and (c) Hadji Bashir Ayonga and Samoranao Sarip retracted their previous affidavits which they had earlier executed and said that they did not understand the contents thereof and did not know that the affidavits would be used in a disqualification case against petitioner. Indeed, it is the fact of residence that is the decisive factor in determining whether or not an individual has satisfied the Constitutions residency qualification requirement. In holding petitioner not to be a resident of Tubaran, the COMELEC said: Three (3) disinterested senior citizens, Hadji Bashir Ayonga, Hadji Taher Batawe and Saadori Buat, all from Tangcal, Tubaran executed a joint affidavit (Exhibits A to A-1) stating that the respondent has not at any time resided or lived in said barangay. Moreover, in Election Case Nos. 2001-237-T to 2001-244-T, the respondent admitted that he was living in Marawi City and was private secretary to Mayor Abdillah Ampatua (T.S.N., Election Case Nos. 2001-237-T to 2001-244-T). As opined by Hearing Officer Atty. Cristeto J. Limbaco, these statements made by the respondent in open court are considered judicial admissions which do not require proof and cannot be contradicted unless proved to have been made

through palpable mistake, citing Sta. Ana vs. Maliwat (L-23-23, August 31, 1968). On May 3, 2001, respondent through counsel submitted a Motion to Admit Supplemental Memorandum alleging that "respondent could be a domicile of Tubaran even if he has lived and maintained residences in different places citing the case ofMarcos vs. COMELEC, 248 SCRA 300, 302." The fact remains though that respondent in open court admitted that he was living in Marawi City. (T.S.N. of Election Case Nos. 2001-237-T to 2001-244-T).24 A candidate running for an elective office should at least have resided in the place where he seeks election for at least one (1) year immediately preceding the day of the election. Herein respondent is wanting in this respect. In citing the joint affidavit of Hadji Bashir Ayonga, Hadji Taher Batawe and Saadori Buat, the COMELEC overlooked the fact that Hadji Bashir Ayonga subsequently repudiated his affidavit on the ground that the same had not been explained to him and he did not know that it would be used to disqualify petitioner. Hadji Bashir Ayonga affirmed that petitioner was a resident of Tubaran. Indeed, in its findings of fact, the COMELEC stated: On March 8, 2001, witness for petitioner Hadji Bashir Ayonga executed an Affidavit of Desistance thereby withdrawing his affidavit and stated that he did not know the consequences of signing the affidavit he executed on February 14, 2001 as the same was not explained to him and would be used in a disqualification case against the respondent. A similar affidavit was also filed by Samoranao Sarip withdrawing his prior affidavit and stating that he did not know the consequences of his signing said affidavit of February 17, 2001.25 Apparently, the COMELEC (Second Division) forgot its own findings. Respondent claims that in Election Case Nos. 2001-237-T to 2001-244-T for exclusion of petitioner as a voter of Tubaran, petitioner admitted that he was not a resident of that municipality but of Marawi City. Petitioners testimony is as follows: Atty. P. Dimaampao: MAUYAG PAPANDAYAN, Jr., what is your job now? WITNESS: Im the private Secretary of Mayor Abdillah Ampatua. Atty. P. Dimaampao: For how long? WITNESS: Since he was elected Mayor of Bayang, Lanao del Sur. Atty. P. Dimaampao: Are you residing in Bayang, Lanao del Sur. WITNESS: No, Im in Tubaran, Lanao del Sur. And I was living in Marawi City.26 Petitioners statement that "[he] was living in Marawi City" cannot be read as saying he was a resident of Marawi City, because, when asked whether he was residing in Bayang, Lanao del Sur, he replied: "No, Im in Tubaran, Lanao del Sur." What he seems to be saying is that although he worked as a private secretary of the Mayor of Bayang, he was not a resident of Bayang, because he was living in Tubaran. When the evidence of the alleged lack of residence qualification of a candidate for an elective position is weak or inconclusive and it clearly appears that the purpose of the law would not be thwarted by upholding the victors right to the office, the will of the electorate should be

respected.27 For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters.28 To successfully challenge petitioners disqualification, respondent must clearly demonstrate that petitioners ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote.29 Respondent failed to substantiate her claim that petitioner is ineligible to be mayor of Tubaran. WHEREFORE, the petition is GRANTED and the assailed resolution of the COMELEC (Second Division), dated May 8, 2001, disqualifying petitioner Mauyag B. Papandayan, Jr. as a candidate for municipal mayor in Tubaran, Lanao del Sur, and the resolution, dated May 12, 2001, of the COMELEC en banc, denying petitioners motion for reconsideration, are hereby ANNULLED and SET ASIDE. The temporary restraining order heretofore issued is made PERMANENT. SO ORDERED. Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., SandovalGutierrez, and Carpio, JJ., concur. Davide, Jr., C.J., Melo, Kapunan, and Austria-Martinez, on official leave. Corona, J., took no part in deliberation of this case.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 111397 August 12, 2002

HON. ALFREDO LIM and RAFAELITO GARAYBLAS, petitioners, vs. THE COURT OF APPEALS, HON. WILFREDO REYES and BISTRO PIGALLE, INC., respondents. CARPIO, J.: The Case Before us is a petition for review on certiorari1 of the Decision of the Court of Appeals dated March 25, 1993,2 and its Resolution dated July 13, 19933 which denied petitioners motion for reconsideration. The assailed Decision sustained the orders dated December 29, 1992, January 20, 1993 and March 2, 1993,4 issued by Branch 36 of the Regional Trial Court of Manila. The trial courts orders enjoined petitioner Alfredo Lim ("Lim" for brevity), then Mayor of Manila, from investigating, impeding or closing down the business operations of the New Bangkok Club and the Exotic Garden Restaurant owned by respondent Bistro Pigalle Inc. ("Bistro" for brevity). The Antecedent Facts On December 7, 1992 Bistro filed before the trial court a petition5 for mandamus and prohibition, with prayer for temporary restraining order or writ of preliminary injunction, against Lim in his capacity as

Mayor of the City of Manila. Bistro filed the case because policemen under Lims instructions inspected and investigated Bistros license as well as the work permits and health certificates of its staff. This caused the stoppage of work in Bistros night club and restaurant operations.6 Lim also refused to accept Bistros application for a business license, as well as the work permit applications of Bistros staff, for the year 1993.7 In its petition, Bistro argued that Lims refusal to issue the business license and work permits violated the doctrine laid down this Court in De la Cruz vs. Paras,8 to wit: "Municipal corporations cannot prohibit the operation of nightclubs. They may be regulated, but not prevented from carrying on their business." Acting on Bistros application for injunctive relief, the trial court issued the first assailed temporary restraining order on December 29, 1992, the dispositive portion of which reads: "WHEREFORE, respondent and/or his agents and representatives are ordered to refrain from inspecting or otherwise interfering in the operation of the establishments of petitioner (Bistro Pigalle, Inc.)."9 At the hearing, the parties submitted their evidence in support of their respective positions. On January 20, 1993, the trial court granted Bistros application for a writ of prohibitory preliminary injunction. The dispositive portion of the trial courts order declared: "WHEREFORE, in view of all the foregoing, Petitioners application for a writ of prohibitory preliminary injunction is granted, and Respondent, and any/all persons acting under his authority, are and (sic) ordered to cease and desist from inspecting, investigating and otherwise closing or impeding the business operations of Petitioner Corporations establishments while the petition here is pending resolution on the merits. Considering that the Respondent is a government official and this injunction relates to his official duties, the posting of an injunction bond by the Petitioners is not required. On the other hand, Petitioners application for a writ of mandatory injunction is hereby denied, for to grant the same would amount to granting the writ of mandamus prayed for. The Court reserves resolution thereof until the parties shall have been heard on the merits."10 However, despite the trial courts order, Lim still issued a closure order on Bistros operations effective January 23, 1993, even sending policemen to carry out his closure order. On January 25, 1993, Bistro filed an "Urgent Motion for Contempt" against Lim and the policemen who stopped Bistros operations on January 23, 1993. At the hearing of the motion for contempt on January 29, 1993, Bistro withdrew its motion on condition that Lim would respect the courts injunction. However, on February 12, 13, 15, 26 and 27, and on March 1 and 2, 1993, Lim, acting through his agents and policemen, again disrupted Bistros business operations. Meanwhile, on February 17, 1993, Lim filed a motion to dissolve the injunctive order of January 20, 1993 and to dismiss the case. Lim insisted that the power of a mayor to inspect and investigate commercial establishments and their staff is implicit in the statutory power of the city mayor to issue, suspend or revoke business permits and licenses. This statutory power is expressly provided for in

Section 11 (l), Article II of the Revised Charter of the City of Manila and in Section 455, paragraph 3 (iv) of the Local Government Code of 1991. The trial court denied Lims motion to dissolve the injunction and to dismiss the case in an order dated March 2, 1993, the dispositive portion of which stated: "WHEREFORE, premises considered, the Court hereby orders: (1) The denial of respondents motion to dissolve the writ of preliminary prohibitory injunction or the dismissal of the instant case; (2) Petitioner-corporation is authorized to remove the wooden cross-bars or any other impediments which were placed at its establishments, namely, New Bangkok Club and Exotic Garden Restaurant on February 12, 1993 and February 15, 1993, respectively, and thereafter said establishments are allowed to resume their operations; (3) All the other petitioners are allowed to continue working in the aforenamed establishments of petitioner-corporation if they have not yet reported; and (4) The hearing on the contempt proceedings is deferred to give sufficient time to respondent to elevate the matters assailed herein to the Supreme Court."11 On March 10, 1993, Lim filed with the Court of Appeals a petition for certiorari, prohibition and mandamus against Bistro and Judge Wilfredo Reyes. Lim claimed that the trial judge committed grave abuse of discretion amounting to lack of jurisdiction in issuing the writ of prohibitory preliminary injunction. On March 25, 1993, the Court of Appeals rendered the assailed decision.12 In a resolution dated July 13, 1993, the Court of Appeals denied Lims motion for reconsideration.13 On July 1, 1993, Manila City Ordinance No. 778314 took effect. On the same day, Lim ordered the Western Police District Command to permanently close down the operations of Bistro, which order the police implemented at once.15 The Ruling of the Court of Appeals In denying Lims petition, the Court of Appeals held that the trial court did not commit grave abuse of discretion since it issued the writ after hearing on the basis of the evidence adduced. The Court of Appeals reasoned thus: "x x x. A writ of preliminary injunction may issue if the act sought to be enjoined will cause irreparable injury to the movant or destroy the status quo before a full hearing can be had on the merits of the case. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the principal action. It is primarily intended to maintain the status quo between the parties existing prior to the filing of the case.

In the case at bar, We find that the respondent Judge did not act improvidently in issuing the assailed orders granting the writ of preliminary injunction in order to maintain the status quo, while the petition is pending resolution on the merits. The private respondent correctly points out that the questioned writ was regularly issued after several hearings, in which the parties were allowed to adduce evidence, and argue their respective positions. The issuance of a writ of preliminary injunction is within the limits of the sound exercise of discretion of the court and the appellate court will not interfere, except, in a clear case of abuse thereof. x x x. WHEREFORE, the petition is DENIED DUE COURSE and is accordingly DISMISSED."16 Hence, this petition. The Issues In their Memorandum, petitioners raise the following issues: 1. "DID RESPONDENT JUDGE COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING HIS SAID ASSAILED ORDERS OF DECEMBER 29, 1992, JANUARY 20, 1993 AND MARCH 2, 1993?" 2. "DID RESPONDENT COURT OF APPEALS COMMIT REVERSIBLE ERRORS IN RENDERING ITS ASSAILED DECISION OF MARCH 25, 1993 AND ITS ASSAILED RESOLUTION OF JULY 13, 1993?" 3. "DID SAID CIVIL CASE NO. 92-63712 AND SAID CA-G.R. SP NO. 30381 BECOME MOOT AND ACADEMIC WHEN THE NEW BANGKOK CLUB AND THE EXOTIC GARDEN RESTAURANT OF PRIVATE RESPONDENT WERE CLOSED ON JULY 1, 1993 PURSUANT TO ORDINANCE NO. 7783?" The Ruling of the Court The petition is without merit. Considering that the constitutionality of Ordinance No. 7783 was not raised before the trial court or the Court of Appeals, and this issue is still under litigation in another case,17 the Court will deal only with the first two issues raised by petitioner. Validity of the Preliminary Injunction Bistros cause of action in the mandamus and prohibition proceedings before the trial court is the violation of its property right under its license to operate. The violation consists of the work disruption in Bistros operations caused by Lim and his subordinates as well as Lims refusal to issue a business license to Bistro and work permits to its staff for the year 1993. The primary relief prayed for by Bistro is the issuance of writs of mandatory and prohibitory injunction. The mandatory injunction seeks to compel Lim to accept Bistros 1993 business license application and to issue Bistros business license. Also, the mandatory injunction seeks to compel Lim to accept the applications of Bistros staff for work permits. The writ of prohibitory injunction seeks to enjoin Lim from interfering, impeding or otherwise closing down Bistros operations.

The trial court granted only the prohibitory injunction. This enjoined Lim from interfering, impeding or otherwise closing down Bistros operations pending resolution of whether Lim can validly refuse to issue Bistros business license and its staffs work permits for the year 1993. Lim contends that the Court of Appeals erred in upholding the prohibitory injunction. Lim relies primarily on his power, as Mayor of the City of Manila, to grant and refuse municipal licenses and business permits as expressly provided for in the Local Government Code and the Revised Charter of the City of Manila. Lim argues that the powers granted by these laws implicitly include the power to inspect, investigate and close down Bistros operations for violation of the conditions of its licenses and permits. On the other hand, Bistro asserts that the legal provisions relied upon by Lim do not apply to the instant case. Bistro maintains that the Local Government Code and the Revised Charter of the City of Manila do not expressly or impliedly grant Lim any power to prohibit the operation of night clubs. Lim failed to specify any violation by Bistro of the conditions of its licenses and permits. In refusing to accept Bistros business license application for the year 1993, Bistro claims that Lim denied Bistro due process of law. The Court of Appeals held that the trial court did not commit grave abuse of discretion in issuing the prohibitory preliminary injunction. We uphold the findings of the Court of Appeals. The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides for such authority. Section 11 (l), Article II of the Revised Charter of the City of Manila, reads: "Sec. 11. General duties and powers of the mayor. The general duties and powers of the mayor shall be: x x x. (l) To grant and refuse municipal licenses or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinances are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other reason of general interest." (Emphasis supplied) On the other hand, Section 455 (3) (iv) of the Local Government Code provides: "Sec. 455. Chief Executive, Powers, Duties and Compensation: xxx. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the City and its inhabitants pursuant to Section 16 of this Code, the City Mayor shall: (3) x x x. (iv) Issue licenses and permits and suspend or revoke the same for any violation of the condition upon which said licenses or permits had been issued, pursuant to law or ordinance." (Emphasis supplied)

From the language of the two laws, it is clear that the power of the mayor to issue business licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the power to suspend or revoke these licenses and permits is expressly premised on the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard. True, the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Such act of Lim violated Ordinance No. 771618 which expressly prohibits police raids and inspections, to wit: "Section 1. No member of the Western Police District shall conduct inspection of food and other business establishments for the purpose of enforcing sanitary rules and regulations, inspecting licenses and permits, and/or enforcing internal revenue and customs laws and regulations. This responsibility should be properly exercised by Local Government Authorities and other concerned agencies." (Emphasis supplied) These local government officials include the City Health Officer or his representative, pursuant to the Revised City Ordinances of the City of Manila,19 and the City Treasurer pursuant to Section 470 of the Local Government Code.20 Lim has no authority to close down Bistros business or any business establishment in Manila without due process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the Local Government Code. There is no provision in these laws expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro an opportunity to rebut the allegations that it violated the conditions of its licenses and permits. The regulatory powers granted to municipal corporations must always be exercised in accordance with law, with utmost observance of the rights of the people to due process and equal protection of the law.21 Such power cannot be exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lims exercise of this power violated Bistros property rights that are protected under the due process clause of the Constitution. Lim did not charge Bistro with any specific violation of the conditions of its business license or permits. Still, Lim closed down Bistros operations even before the expiration of its business license on December 31, 1992. Lim also refused to accept Bistros license application for 1993, in effect denying the application without examining whether it complies with legal prerequisites. Lims zeal in his campaign against prostitution is commendable. The presumption is that he acted in good faith and was motivated by his concern for his constituents when he implemented his campaign against prostitution in the Ermita-Malate area. However, there is no excusing Lim for arbitrarily closing down, without due process of law, the business operations of Bistro. For this reason, the trial court properly restrained the acts of Lim.

Consequently, the Court of Appeals did not err in upholding the trial courts orders. The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. It is generally availed of to prevent actual or threatened acts, until the merits of the case can be disposed of.22 In the instant case, the issuance of the writ of prohibitory preliminary injunction did not dispose of the main case for mandamus. The trial court issued the injunction in view of the disruptions and stoppage in Bistros operations as a consequence of Lims closure orders. The injunction was intended to maintain the status quo while the petition has not been resolved on the merits. WHEREFORE, the petition is denied for lack of merit. The assailed Decision of the Court of Appeals in CA-G.R. SP NO. 30381 is AFFIRMED in toto. SO ORDERED. Puno, and Panganiban, JJ., concur. Sandoval-Gutierrez, J., on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 147904 October 4, 2002

NESTOR B. MAGNO, petitioner, vs. COMMISSION ON ELECTIONS and CARLOS C. MONTES, respondents. DECISION CORONA, J.: Before this Court is a petition for certiorari under Rule 65 which seeks to annul and set aside the resolution dated May 7, 2001 of the Commission on Elections as well as the resolution dated May 12, 2001 denying petitioners motion for reconsideration. This petition originated from a case filed by private respondent on March 21, 2001 for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code. It appears that on July 25, 1995, petitioner was sentenced to suffer the indeterminate penalty of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of prision correccional as maximum, for each of the four counts of direct bribery. Thereafter, petitioner applied

for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija. On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting the petition of private respondent and declaring that petitioner was disqualified from running for the position of mayor in the May 14, 2001 elections. In ruling against petitioner, the COMELEC cited Section 12 of the BP 881 or the Omnibus Election Code which provides as follows: Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen (18) months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. The above provision explicitly lifts the disqualification to run for an elective office of a person convicted of a crime involving moral turpitude after five (5) years from the service of sentence. According to the COMELEC, inasmuch as petitioner was considered to have completed the service of his sentence on March 5, 1998, his five-year disqualification will end only on March 5, 2003. On May 10, 2001, petitioner filed a motion for reconsideration but the same was denied by the COMELEC in its resolution dated May 12, 2001. Hence, this petition. Petitioner argues that direct bribery is not a crime involving moral turpitude. Likewise, he cites Section 40 of RA 7160, otherwise known as the Local Government Code of 1991, which he claims is the law applicable to the case at bar, not BP 881 or the Omnibus Election Code as claimed by the COMELEC. Said provision reads: Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence. xxxx Petitioner insists that he had already served his sentence as of March 5, 1998 when he was discharged from probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local Government Code expired on March 5, 2000. Thus, petitioner was qualified to run in the 2001 elections. Meanwhile, Sonia Lorenzo was proclaimed by the COMELEC as the duly elected mayor of San Isidro, Nueva Ecija. Thus, on June 19, 2001, petitioner filed a supplemental petition which this Court merely noted in its resolution dated June 26, 2001. In his supplemental petition, petitioner assailed the proclamation of Sonia Lorenzo on the ground that the propriety of his disqualification was still

under review by this Court. Petitioner likewise asked this Court to declare him as the duly elected municipal mayor instead of Sonia Lorenzo. On July 18, 2001, the Solicitor-General filed his manifestation and agreed with petitioner that COMELEC should have applied Section 40 of the Local Government Code. The main issue is whether or not petitioner was disqualified to run for mayor in the 2001 elections. In resolving this, two sub-issues need to be threshed out, namely: (1) whether the crime of direct bribery involves moral turpitude and (2) whether it is the Omnibus Election Code or the Local Government Code that should apply in this situation. Regarding the first sub-issue, the Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude as: "x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals."1 Not every criminal act, however, involves moral turpitude. It frequently depends on the circumstances surrounding the violation of the law.2 In this case, we need not review the facts and circumstances relating to the commission of the crime considering that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery: 1. the offender is a public officer; 2. the offender accepts an offer or promise or receives a gift or present by himself or through another; 3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and [Italics supplied] 4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties.3 Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. It is the second sub-issue which is problematical. There appears to be a glaring incompatibility between the five-year disqualification period provided in Section 12 of the Omnibus Election Code and the two-year disqualification period in Section 40 of the Local Government Code.

It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will.4 Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of RA 7160 or the Local Government Code states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed. In David vs. COMELEC5, we declared that RA 7160 is a codified set of laws that specifically applies to local government units. Section 40 thereof specially and definitively provides for disqualifications of candidates for elective local positions. It is applicable to them only. On the other hand, Section 12 of BP 881 speaks of disqualifications of candidates for any public office. It deals with the election of all public officers. Thus, Section 40 of RA 7160, insofar as it governs the disqualifications of candidates for local positions, assumes the nature of a special law which ought to prevail. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law.6 The reduction of the disqualification period from five to two years is the manifest intent. Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioners disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections. Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the validity of Sonia Lorenzos proclamation and (2) the declaration of petitioner as the rightful winner. Inasmuch as Sonia Lorenzo had already been proclaimed as the winning candidate, the legal remedy of petitioner would have been a timely election protest. WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The challenged resolutions of the Commission on Elections dated May 7, 2001 and May 12, 2001 are hereby reversed and set aside. The petitioners prayer in his supplemental petition for his proclamation as the winner in the May 14, 2001 mayoralty elections in San Isidro, Nueva Ecija, not being within our jurisdiction, is hereby denied. SO ORDERED. Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, and Callejo, Sr., JJ., concur. Davide, Jr., C.J., Mendoza, and Sandoval-Gutierrez, JJ., on leave. Morales, J., no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 154512 November 12, 2002

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner, vs. THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR. respondents. ----------------------------G.R. No. 154683 November 12, 2002

VICENTE S. SANDOVAL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS, respondent. ----------------------------G.R. Nos. 155083-84 November 12, 2002

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners, vs. THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents. DECISION CARPIO, J.: The Case Before us are consolidated petitions for certiorari1 seeking the reversal of the resolutions issued by the Commission on Elections ("COMELEC" for brevity) in relation to the recall election for mayor of Puerto Princesa City, Palawan. The Antecedents On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate the recall2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA.

On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which declared its loss of confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution. On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC), to nullify and deny due course to the Recall Resolution. On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for lack of merit Socrates' petition. The COMELEC gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the calendar of activities and periods of certain prohibited acts in connection with the recall election. The COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10 days. On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy for mayor in the recall election. On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and involving the same issues. The petitions were all anchored on the ground that "Hagedorn is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same post." Subsequently, SPA Nos. 02-492 and 02-539 were consolidated. In a resolution promulgated on September 20, 2002, the COMELEC's First Division4 dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in the recall election. The COMELEC also reset the recall election from September 7, 2002 to September 24, 2002. On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn qualified to run in the recall election. Hence, the instant consolidated petitions. G.R. No. 154512 Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. Socrates cites the following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of

the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their respective constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a manner that violated his and the public's constitutional right to information. G.R. No. 154683 Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a tenday campaign period. He prayed that the COMELEC be enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days to campaign. In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September 7, 2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from September 7, 2002 within which to campaign. Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the candidates an additional 15 days from September 7, 2002 within which to campaign. Thus, the COMELEC reset the recall election to September 24, 2002. G.R. Nos. 155083-84 Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in the recall election. They likewise prayed for the issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall election. Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective local officials. In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from proclaiming any winning candidate in the recall election until further orders from the Court. Petitioners were required to post aP20,000 bond. On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave. In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes, respectively. Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to assume office to give effect to the will of the electorate. On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for intervention. The Issues

The issues for resolution of the Court are: 1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa. 2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on September 24, 2002. In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in fixing a campaign period of only 10 days has become moot. Our Resolution of September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15 days for the campaign period as prayed for by petitioner. First Issue: Validity of the Recall Resolution. Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite the absence of notice to 130 PRA members and the defective service of notice to other PRA members. The COMELEC, however, found that "On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local Government Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices were attached to the Petition and marked as Annex "G" of Volumes II and III of the Petition. Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos establishing the same were attached to the Petition and marked as Annex "H". The proponents likewise utilized the broadcast mass media in the dissemination of the convening of the PRA. Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial elective officials, print and broadcast media practitioners, PNP officials, COMELEC city, regional and national officials, and DILG officials]. xxx The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a 'thorough and careful verification of the signatures appearing in PRA Resolution 01-02, x x x the majority of all members of the PRA concerned approved said resolution.' She likewise certified 'that not a single member/signatory of the PRA complained or objected as to the veracity and authenticity of their signatures.' The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10 July 2002, stated, 'upon proper review, all documents submitted are found in order.' The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following recommendations: 'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and substance. That the PRA was validly constituted and that the majority of all members thereof approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.'

x x x ." This Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v. COMELEC,5 which also dealt with alleged defective service of notice to PRA members, we ruled that "Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of the same is therefore a function of the COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual findings of the COMELEC, based on its own assessments and duly supported by gathered evidence, are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of the same." In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact are patently erroneous. Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code. Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to information on matters of public concern. Socrates, however, admits receiving notice of the PRA meeting and of even sending his representative and counsel who were present during the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets, notices sent to PRA members, and authenticated master list of barangay officials in Puerto Princesa. Socrates had the right to examine and copy all these public records in the official custody of the COMELEC. Socrates, however, does not claim that the COMELEC denied him this right. There is no legal basis in Socrates' claim that respondents violated his constitutional right to information on matters of public concern. Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution and in scheduling the recall election on September 24, 2002. Second Issue: Hagedorn's qualification to run for mayor in the recall election of September 24, 2002. The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states: "Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected."

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code, which provides: "Section 43. Term of Office. (a) x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected." These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms. This is clear from the following deliberations of the Constitutional Commission: "THE PRESIDENT: The Acting Floor Leader is recognized. MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the blackboard, and these are Alternative No. I where there is no further election after a total of three terms and Alternative No. 2 where there is no immediate reelection after three successive terms."7 The Journal of the Constitutional Commission reports the following manifestation on the term of elective local officials: "MANIFESTATION OF MR. ROMULO Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on the term of Representatives and local officials, namely: 1) Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms)."8 The framers of the Constitution used the same "no immediate reelection" question in voting for the term limits of Senators9 and Representatives of the House.10

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term limit, then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials, thus: "No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected."11 In the debates on the term limit of Senators, the following exchange in the Constitutional Convention is instructive: "GASCON:12 I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? DAVIDE:13 That is correct. GASCON: And the question that we left behind before - if the Gentleman will remember was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third or on the sixth year thereafter, this particular member of the Senate can run. So, it is not really a period of hibernation for six years. That was the Committee's stand. GASCON: So, effectively, the period of rest would be three years at the least."14 (Emphasis supplied) The framers of the Constitution thus clarified that a Senator can run after only three years15 following his completion of two terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to any subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not intend "the period of rest" of an elective official who has reached his term limit to be the full extent of the succeeding term. In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates. From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorn's service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn's three consecutive terms ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn's previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn's service as mayor. In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of service in this manner: "x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. x x x." (Emphasis supplied) In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption "for any length of time," as long as the cause is involuntary, is sufficient to break an elective local official's continuity of service. In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the rule that an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor, petitioned for Talaga's disqualification on the ground that Talaga had already served three consecutive terms as mayor. Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous two terms so that he was deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as

mayor. Talaga's recall term as mayor was not consecutive to his previous two terms because of this interruption, there having been a break of almost two years during which time Tagarao was the mayor. We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his recall term from being stitched together as a seamless continuation of his previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the respondents were seeking election for a fourth term. In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election. Talaga's recall term did not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to so retroact, then he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of his predecessor but only the unexpired term. The period of time prior to the recall term, when another elective official holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official's terms in office. In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorn's recall term as a full term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually are not. Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec: "Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term. Monsod warned against 'prescreening candidates [from] whom the people will choose' as a result of the proposed absolute disqualification, considering that the draft constitution contained provisions 'recognizing people's power.'"19 (Emphasis supplied) A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in recall election serves the unexpired term of the

recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional Commission: "SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President? DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the Members of the Lower House."21 Although the discussion referred to special elections for Senators and Representatives of the House, the same principle applies to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for more than nine consecutive years comprising of the recall term plus the regular three full terms. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election. In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa because: 1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30, 2001; 2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during which time he was a private citizen; 3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and 4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their leaders. WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The temporary restraining order issued by this Court on September 24, 2002 enjoining the proclamation of the winning candidate for mayor of Puerto Princesa in the recall election of September 24, 2002 is lifted. No costs. SO ORDERED. Bellosillo, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio-Morales, and Callejo, Sr., JJ., concur. Davide, Jr., C.J., see concurring and dissenting opinion. Puno, J., see concurring opinion. Vitug, J., in the result. Mendoza, J., in the result, without to the filing of separate opinion. Austria-Martinez, J., on leave.

Corona, J., no part - prior consultation. Azcuna, J., joins the separate opinion of C.J. Davide.

CONCURRING AND DISSENTING OPINION DAVIDE, JR., C.J.: I concur with the opinion and conclusion of Mr. Justice Antonio T. Carpio in G.R. No. 154512 and G.R. No. 154683. The Commission on Elections (COMELEC) committed no grave abuse of discretion in giving due course to the Recall Resolution. Dismissal then of G.R. No. 154512 is inevitable. This notwithstanding, I still hold on to my dissenting view in G.R. No. 111511 (Garcia, et al. vs. COMELEC, et al., 227 SCRA 100, 121 [1993]) that the provision on the preparatory recall assembly in Section 70 of the Local Government Code of 1991 is unconstitutional. Our issuance of the Resolution of 3 September 2002 in G.R. No. 154683 enjoining the COMELEC from implementing its Resolution No. 5673 insofar as it fixed the recall election on 7 September 2002, and the subsequent Resolution of the COMELEC giving the candidates an additional campaign period of fifteen days from 7 September 2002 rendered moot and academic the principal issue in G.R. No. 154683. The dismissal of the petition therein is also in order. However, I regret I cannot concur with the argument and conclusion relative to G.R. Nos. 15508384. I respectfully submit that private respondent Edward S. Hagedorn is disqualified from running for the position of Mayor of Puerto Princesa City in the recall election in question. Section 8 of Article X of the Constitution expressly provides: SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an Interruption In the continuity of his service for the full term for which he was elected. Paragraph (b), Section 43 of R.A. No. 7160 (The Local Government Code) restates this constitutional restriction, thus: SEC. 43. Term of office. (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected. Section 8 of Article X of the Constitution was not found in the Report of the Committee on Local Governments of the Constitutional Commission of 1986. It was introduced at the plenary session by Commissioner Hilario G. Davide, Jr. Commenting thereon in his book entitled "The Intent of 1986 Constitution Writers" (1995 ed., p. 699), Commissioner Joaquin Bernas states:

This provision was not found among the Committee's proposals but came as an amendment proposed by Commissioner Davide. It was readily accepted without much discussion and formally approved. Section 8 sets the duration of a term at three years, and prohibits elective local officials from serving for more than three consecutive terms. Pursuant to the second paragraph of Section 1 of Article XVIII (The Transitory Provision) of the Constitution, and Executive Order No. 270, as amended by R.A. No. 6636, the first local election, that is, the election for the first term under the Constitution for elective local officials, was on 18 January 1988. By express provision of Section 5 of R.A. No. 6636, in relation to Section 2 of Article XVIII of the Constitution, that term expired at noon of 30 June 1992. The second election, i.e., the election for the second term of elective local officials which expired at noon of 30 June 1995, for elective local officials, was on the second Monday of May 1992 pursuant to R.A. No. 7166 (An Act Providing for Synchronized National and Local Elections and for Electoral Reforms). The third election, i.e., for the third term which expired at noon of 30 June 1998, was on the second Monday of May 1995, pursuant to Section 2 of R.A. No. 7166. The fourth election, or for the fourth term which expired at noon of 30 June 2001, was on the second Monday of May 1998. The fifth election, i.e., for the fifth term which would expire at noon of 30 June 2004, was on the second Monday of May 2001.Conformably with Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160, a local official elected in the first local election of 18 January 1988 may be reelected in the synchronized elections in May 1992 and in May 1995. He could not seek another reelection in the May 1998 election because that would have been his fourth term. Similarly, a local official who was elected in the May 1992 election could be reelected in the May 1995 and May 1998 elections. Private respondent Hagedorn was first elected as City Mayor of Puerto Princesa City in the May 1992 election. He was reelected in the May 1995 and May 1998 elections. His third term, by virtue of his election in the May 1998 election, expired on 30 June 2001. Therefore, he was constitutionally and statutorily barred from seeking reelection In the May 2001 election, which would have been his fourth term. The term of office covered by the May 2001 election is up to 30 June 2004. Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160 are clear in what is prohibited, which is the fourth term. Nothing can be clearer from the wordings thereof: "the term of office of elective local officials ... shall be three years and no such official shall serve for more that three consecutive terms." In short, an elective local official who has served three consecutive terms, like Hagedorn, is disqualified from seeking re-election for the succeeding fourth term. The provision bars the holding of four consecutive terms. The ponencia is then correct when it holds that the three-term limit bars an immediate reelection for a fourth term. But I disagree when it rules that in the case of Hagedorn he did not seek an immediate reelection for a fourth term because he was not a candidate for reelection in the May 2001 election. It forgets that what would have been his fourth term by virtue of the May 2001 election was for the period from 30 June 2001 to 30 June 2004. The flaw in the ruling results from an apparent confusion between term and election, the root cause of which is the attempt to distinguish "voluntary renunciation" of office from "involuntary severance" from office and the term of office to which it relates. Let me first discuss the matter of whether the Constitutional Commission did approve the rule of "no Immediate reelection after three consecutive terms." In support of its affirmative conclusion the

ponencia quotes the Manifestation of Commissioner Romulo as entered in the Journal of the Constitutional Commission, thus: MANIFESTATION OF MR. ROMULO Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on the term of Representatives and local officials, namely: a) Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms). This is inaccurate. What actually happened was that the issue was originally for elective national and local officials. However, the Commission decided to consider first the term of the members of Congress; and to defer the discussion on the term of elective local officials until the Commission would consider the report of the Committee on Local Governments. On this point I quote the pertinent portions of Volume Two, pages 238-245 of the Record of the Constitutional Commission of its proceedings on 25 July 1986: THE PRESIDENT. Maybe it will be of help we Just remind ourselves that what we have before us now is the report of the Committee on the Legislative. Therefore, maybe we should confine ourselves first to what is covered by the report which is the term of office of the Senators and the Representatives.And with respect to the local officials, let us await the report of the Committee on Local Governments as to its recommendation on this matter. MR. RODRIGO. As a matter of fact, I will go further than that, it is my belief, as regards local officials, that we should leave this matter to the legislative. THE PRESIDENT. So what is the pleasure now of the Acting Floor Leader or of the Chairman of the Committee on the Legislative? MR. RODRIGO. I wonder if the two proponents, Madam President, will agree that we first talk about the term of office of the Representatives because we are now discussing the legislative department. MR. DAVIDE. Madam President. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I will agree really that this matter should relate only to the term of office of the Representatives. THE PRESIDENT. But are we agreed on these two proposals - the one of Commissioner Garcia where there is no further election after a total of three terms and the other where there is no Immediate reelection after three successive terms? MR. OPLE. Madam President, originally if I remember right, the Commission decided to consider the synchronization of elections. And from that original commitment, we proceeded to fix the terms and decided related questions within the context of synchronization. Are we now abandoning the original task of synchronization which could only be fully settled in terms of delimitations on the proposed terms of the President and the Vice-President, the Members of Congress and the local officials, or do we want to postpone the synchronization task to a

later time after we hear from the Committee on Local Governments and the other concerned committees? THE PRESIDENT. What does the Acting Floor Leader say to this particular question of Commissioner Ople? MR. ROMULO. In a way, Madam President, we have settled the synchronization task, because we have decided on the officials' absolute terms. All we are really talking about now is whether or not they are eligible for reelection, and I think those are separable issues. MR. OPLE. If they are separable, and we have already settled the synchronization task, then I think that is something to be thankful about. But considering the immediate business at hand, is it the wish of the Acting Floor Leader that the election of the local officials should be eliminated from the consideration of those two choices? MR. ROMULO. Yes. I think the sense of the body now is to limit this choice to the Members of the House of Representatives. MR. OPLE. And do the manifestations of both Commissioners Garcia and Monsod still stand after the elimination of the election of the local officials? MR. ROMULO. Yes, I think so. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. Madam President, as worded, It is a personal disqualification. MR. ROMULO. We are now ready to vote, Madam President. SUSPENSION OF SESSION THE PRESIDENT. We are now ready to vote by ballot. Let us distribute the ballots. Anyway the voting would take only about 10 minutes. The session is suspended. It was 3:40 p.m. At this juncture, pieces of paper were distributed, and the Commissioners wrote down their votes. RESUMPTION OF SESSION At 3:50 p.m., the session was resumed. THE PRESIDENT. The session is resumed.

MR. GASCON. Madam President, may I have a clarification before we count the ballots. The voting now is just for Representatives. We are not speaking of the term of office of the Senators yet. Is that correct? THE PRESIDENT. The term of office of the Senators was disposed of this morning. This voting now is only for Representatives. MR. GASCON. I think the Issue of whether the Senators could run again for election after their two consecutive terms or 12 years after a lapse of a period of time has not yet been finalized. THE PRESIDENT. I beg the Commissioner's pardon. MR. GASCON. Is this voting just for Congressmen? THE PRESIDENT. Yes. The Secretary-General will now please proceed to count the votes. COUNTING OF BALLOTS THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We will now start the counting. Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-// Alternative No. 2 - no immediate reelection after three successive terms: /////-/////-//////////-/////-/ THE PRESIDENT. The results show 17 votes for Alternative No. 1 and 26 votes for Alternative No. 2; Alternative No. 2 is approved. What does the Acting Floor Leader say? MR. ROMULO. Alternative No. 2 has won, Madam President. It seems there are some doubts as to the term of office of the Senators, so I propose that we similarly vote on that to end any doubt. It was my understanding this morning that when we voted for the term of office of the Senators, they would not be perpetually disqualified. THE PRESIDENT. From the transcripts, it appears here that with respect to Senators, 22 votes went to Scheme No. II; that is, with one reelection. This is already a majority. So, does the Acting Floor Leader propose that we vote again? MR. ROMULO. The question is whether or not that will be perpetual, Madam President, or after resting for six years they can run again. That is the question that is not answered. I am talking of the Senators. THE PRESIDENT. This morning, Scheme No. I, without reelection, has 3 votes; Scheme No. II, with one reelection - 22 votes; Scheme No. III, no limit on reelection - 17 votes.

MR. REGALADO. Madam President. MR. RODRIGO. Madam President. THE PRESIDENT. May we first clarify this from the Secretary-General? MR. ROMULO. The question is whether or not in voting for the term of six years with one reelection, the Senator is perpetually disqualified, so that is a similar question to what we had posed with regard to the House of Representatives. THE PRESIDENT. In other words, after serving with one reelection, whether or not he is perpetually disqualified after serving 12 years? MR. ROMULO. Yes, Madam President. MR. RODRIGO. Madam President. THE PRESIDENT. Yes, Commissioner Rodrigo is recognized. MR. RODRIGO. Or, if after one reelection, he is perpetually disqualified or he can hibernate the very word used - for six years and then run again for reelection but not consecutive, not immediate. In other words, he is entitled to one immediate reelection. REV. RIGOS. Another point, Madam President. MR. RODRIGO. And then, after that, if there is a gap, when he is not a Senator, then he can run for the same office. REV. RIGOS. Madam President. THE PRESIDENT. Yes, Commissioner Rigos is recognized. REV. RIGOS. In relation to that, if he will be allowed to run again as Senator after a period of hibernation, we have to clarify how long that should be. It could be three years, because in the proposed scheme, every three years we can elect the Senators. MR. RODRIGO. Yes, Madam President, it can be three years. SUSPENSION OF SESSION THE PRESIDENT. I will suspend the session again so as to allow the parties to compare with the Acting Floor Leader so that we will know what we are going to vote on. The session is suspended It was 3:58 p.m. RESUMPTION OF SESSION At 4:05 p.m., the session was resumed.

THE PRESIDENT. The session is resumed. The Acting Floor Leader is recognized. MR. ROMULO. Madam President, we are now ready to vote on the question of the Senators, and the schemes are as follows: The first scheme is, no further election after two terms; the second scheme is, no immediate reelection after two successive terms. Madam President, inasmuch as the principles applicable here are the same as those for the House of Representatives, I move that we go directly to the voting and forego any further discussions. THE PRESIDENT. Please distribute the ballots for this particular item for Senators. Are we ready now? The Secretary-General will please count the ballots. COUNTING OF BALLOTS THE SECRETARY-GENERAL. We have 43 ballots here, Madam President. We shall now begin to count. THE PRESIDENT. Please proceed. THE SECRETARY-GENERAL, reading: Scheme No. I - /////-/////-// Scheme No. II - /////-/////-/////-/////-/////-/////-// THE PRESIDENT. The results show 12 votes for Scheme No. I and 32 votes for Scheme No. II; Scheme No. II approved. All the results will be considered by the Committee on the Legislative in preparation of their report. So can we leave this matter now? The corresponding proposal on the three-term limit for elective local officials without immediate reelection was taken up by the Constitutional Commission much later or specifically on 16 August 1986. On this point, the pertinent portions of Vol. Three, pages 406-408, Record of the Constitutional Commission, read as follows: MR. RAMA. Madam President, I ask that Commissioner Davide be recognized. THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. Thank you, Madam President.

After Section 4, I propose to Insert a new section to be denominated later as Section 5. It provides as follows: THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW, SHALL BE THREE YEARS AND NO SUCH OFFICIAL SHALL SERVE FOR MORE THAN THREE CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED. This is in accordance with the mandate of the Commission when we voted on the terms of officials up to local officials, excluding the term of barangay officials which was a very specific exception. MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of the office of barangay officials as provided for? MR. DAVIDE. As may be determined by law. MR. NOLLEDO. As provided for in the Local Government Code. MR. DAVIDE. Yes. MR. NOLLEDO. We accept the amendment. The Committee accepts the amendment. THE PRESIDENT. May we have the reaction of the Committee? MR. NOLLEDO. The Committee accepts the amendment, as amended, Madam President. THE PRESIDENT. Is there any other comment? MR. OPLE. Madam President. THE PRESIDENT. Commissioner Ople is recognized.' MR. OPLE. May we ask the Committee to read the proposed amendment now. MR. NOLLEDO. May we ask Commissioner Davide to read the new section. MR. DAVIDE. THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW, SHALL BE THREE YEARS AND N SUCH OFFICIAL SHALL SERVE FOR MORE THAN THREE CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED. THE PRESIDENT. Then let us vote first on the Davide amendment.

Is there any objection to this new section proposed by Commissioner Davide which has been read to the body? (Silence) The Chair hears none; the proposed section is approved. I wish to add that the Constitutional Commission debates on the issue of "no immediate reelection" after three consecutive terms for members of Congress clearly indicated that the "no immediate reelection" after the 3-term limit would equally apply to the elective local officials. This accounted for the immediate acceptance by the Committee on Local Governments of the aforementioned Amendment of Commissioner Davide, which is now Section 8 of Article X of the Constitution. These debates clearly showed the Intent of the Commission that the ban against an immediate reelection after three consecutive terms applies to thefourth term, i.e., the term immediately following the three consecutive terms, to be filled up by the regular election for such fourth term. For one to be able to run again after three consecutive terms, he has to restfor the entire immediately succeeding fourth term. On the next fifth term he can run again to start a new series of three consecutive terms. We quote these pertinent portions of the debates, recorded in Volume Two, pages 232-233 of the Record of the Constitutional Commission: MR. ROMULO. Madam President, the following are the various alternatives:Scheme No. I is without reelection; Scheme No. II is with one reelection; and Scheme No. III is reelection without limit. This is for 'the Senators. At this juncture, pieces of paper were distributed and the Commissioners wrote down their votes. THE PRESIDENT. The Chair asks the Chairman, Commissioner Davide, to please consolidate the results of the voting for President and Vice-President. THE SECRETARY-GENERAL. Madam President, we are ready. THE PRESIDENT. The Secretary-General will please proceed. COUNTING OF BALLOTS THE SECRETARY-GENERAL, reading: Scheme No. I - /// Scheme No. II - /////-/////-/////-/////-// Scheme No. Ill - /////-/////-/////-// THE PRESIDENT. The results show 3 votes for Scheme No. I; 22 votes for Scheme No. II; and 17 votes for Scheme No. III; Scheme No. II is approved. MR. ROMULO. Madam President, the next position is for the House of Representatives, the Congressmen. I would assume we can use the same choices. Does any one want any variation? MR. RODRIGO. Madam President. THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. For the record, I would like to ask Commissioner Romulo some questions. MR. ROMULO. Yes. MR. RODRIGO. Scheme No. II says "the Vice-President - with one reelection." THE PRESIDENT. No, that is for Senators.' MR. GUINGONA. Madam President. THE PRESIDENT. Yes, Commissioner Guenon is recognized. MR. GUINGONA. May I suggest one more scheme - with two reelections for the Members of the House of Representatives? THE PRESIDENT. So, we shall distribute ballots again. MR. ROMULO. While the ballots are being distributed, may I read the following four propositions for Congressmen: ' Scheme No. I, without reelection. Scheme No. II, with one reelection. Scheme No. III, with two reelections. Scheme No. IV, no limit on reelection. I MR. DE LOS REYES. Madam President. THE PRESIDENT. Commissioner de los Reyes is recognized. MR. DE LOS REYES. The term of the Members of the House of Representatives will be three years, according to the first voting; the term of the Senators, if they are entitled to one reelection, will be 12 years. So, in order for a Member of the House of Representatives to have also 12 years, he must be entitled to three reelections. I propose another scheme with three reelections to make it equal. MR. RODRIGO. Will the Gentleman maintain the number there and add that as No. V. I filled up my ballot already and if I erase, this might be disqualified as a marked ballot. THE PRESIDENT. Commissioner Rodrigo may change his ballot. MR. DE CASTRO. Madam President. THE PRESIDENT. Commissioner de Castro Is recognized. MR. DE CASTRO. The situation stated by Commissioner de los Reyes is apparently covered by Scheme No. II which we agreed upon earlier. The situation will not happen, because both

the Senators and the Congressmen will have five (5) years on the first election. So, the possibility that the Senators will have a longer term than the Congressmen is remote. MR. MONSOD. Madam President. THE PRESIDENT. Commissioner Monsod is recognized. MR. MONSOD. Madam President, it occurred to us that the three alternatives are not really mutually exclusive. Can we have only these three: without reelection, with reelection and with unlimited reelection? We are asking here for plurality only, Madam President. Can we eliminate? THE PRESIDENT. In other words, we shall have the same schemes as those for Senators; without reelection, with one reelection and unlimited reelection. REV. RIGOS. Madam President, besides we have already submitted our ballots. MR. MONSOD. I withdraw my proposal, Madam President. MR. GARCIA. Madam President, I would suggest that the two schemes with the highest votes be voted upon to get the key majority. For example, if the schemes with two reelections and no limit to election get the highest number of votes, then we vote again to get the key majority. THE PRESIDENT. We will do that. Are all the votes in? COUNTING OF BALLOTS THE SECRETARY-GENERAL. Madam President, we have 43 ballots. THE PRESIDENT. The Secretary-General will please proceed. THE SECRETARYGENERAL, reading: Scheme No. I - 0 Scheme No. II - // Scheme No. III - /////-/////-/////-/////-/ Scheme No. IV - /////-/////-//// Scheme No. V - /////-/ THE PRESIDENT. The results show no vote for Scheme No. I; 2 votes for Scheme No. II; 21 votes for Scheme No. III; 14 votes for Scheme No. IV; and 6 votes for Scheme No. V; Scheme No. III is approved. MR. RODRIGO. Madam President. THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO.. I would like to ask a question for clarification. THE PRESIDENT. Please proceed. MR. RODRIGO. If the Members of the Lower House can have two reelections, does this mean two immediate reelections, or a term of nine consecutive years? Let us say that a Member of the Lower House has been reelected twice; that means he will serve for nine years. Can he let three years elapse and then run again? THE PRESIDENT. We will ask the Chairman of the Committee on the Legislative to answer the question. MR. DAVIDE. That is correct, Madam President, because two reelections mean two successive reelections. So he cannot serve beyond nine consecutive years. MR. RODRIGO. Consecutively? MR. DAVIDE. Consecutively. MR. RODRIGO. But after nine years he can let one MR. DAVIDE. He can rest. He can hibernate for three years. MR. RODRIGO. And run again. MR. DAVIDE. He can run again. MR. RODRIGO. And again have nine years as a maximum. MR. DAVIDE. I do not know if that is also the thinking of Commissioner Garcia who is the main proponent of this proposal on two reelections. I would seek the opinion of Commissioner Garcia for the record. (underscoring supplied for emphasis.) The dichotomy made in the ponencia between "voluntary renunciation of the office" as used in Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160 and "involuntary severance from office" is unnecessary, if not misplaced. From the discussion in the ponencia, the latter is made to apply to the banned term, i.e., the fourth term immediately following three consecutive terms. Speaking now of Hagedorn, he cannot have suffered "involuntary severance from office" because there was nothing to be severed; he was not a holder of an office either in a de jure or de facto capacity. He knew he was disqualified from seeking a third reelection to office. Disqualification is, definitely, not synonymous with involuntary severance. Even if we concede that involuntary severance is an act which interrupts the continuity of a term for purposes of applying the three-term principle the rule laid down in Lonzanida vs. COMELEC (311 SCRA 609), cited in the ponencia, page 17, is not applicable in the case of Hagedorn. The involuntary severance referred to in that case was one that took place during any of the three terms; hence, the term during which it occurred should be excluded in the computation. In the case of Hagedorn, no such involuntary severance took place during any of his three terms brought about by his election in 1992 and reelections in 1995 and 1998. More importantly, the voluntary renunciation referred to in Section 8, Article X of the Constitution and Section 43(b) of R.A. No. 7160 is one that takes place at any time during either the first, second, or

third term of the three consecutive terms. This is very clear from the last clause of Section 8, Article X of the Constitution, which reads: "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The purpose of the provision is to prevent an elective local official from voluntarily resigning from office for the purpose of circumventing the rule on the belief that the term during which he resigned would be excluded in the counting of the threeterm rule. In short, the provision excluded is intended to impose a penalty on one who flouts the rule or make a mockery of it by the simple act of resigning. Thus, applying it in the case of Hagedorn, even if he voluntarily resigned on his third term, he would still be barred from seeking reelection in the May 2001 election. Hagedorn cannot likewise avail of the ruling in Adormeo vs. COMELEC (G.R. No. 147927, 4 February 2002) because in that case Talaga did not win in his second reelection bid, or for a third term, in the May 1998 elections. He won in the recall election of 12 May 2000. Hagedorn, as earlier stated, fully served three successive terms. Neither can we allow Hagedorn to take refuge under the exchange between Commissioner Suarez and Commissioner Davide found on page 592, Vol. II of the Record of the Constitutional Commission and quoted on pages 19-20 of the ponencia: SUAREZ: For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President? DAVIDE: Yes, because we speak of "term" And if there is a special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the Members of the Lower House. On the contrary, it is clear from the views of Commissioners Suarez and Davide that the term of office of one who is elected in a special election is considered one term for purposes of determining the three consecutive terms. A declaration that Hagedorn is qualified to seek reelection in a recall election to remove the Mayor who was elected for a term for which Hagedorn was constitutionally and statutorily disqualified to be reelected to or, to hold Is to subvert the rationale of the three-consecutive-term rule and make a mockery of it. Worse, it abets destructive endless partisan politics and unsound governance. An elective local official who is disqualified to seek a fourth term because of the three-term limit but obsessed to hold on to power would spend the first year of the fourth term campaigning for the recall of the incumbent in the second year of said term. This would' not be a problem If the disqualified official has a solid following and a strong political machinery. Interestingly, in this case, as stated on page 3 of the ponencia, the President of the Association of Barangay Captains of Puerto Princesa City is oneMark David M. Hagedorn and he was designated by the Preparatory Recall Assembly as interim Chairman. I therefore vote to grant the petition in G.R. Nos. 155083-84, to set aside the resolution of the COMELEC holding private respondent Edward Hagedorn a qualified candidate for the position of Mayor of Puerto Princesa City in the recall election, and to declare him DISQUALIFIED from seeking reelection for a fourth term or from being a candidate for Mayor in the recall election in question.

CONCURRING OPINION PUNO, J.: The correctness of the decision so ably written by Mr. Justice Carpio speaks for itself. Nonetheless, the complex constitutional dimensions of the issue for resolution compels this humble concurring opinion. The issue is whether private respondent Hagedorn is disqualified from running in the September 24, 2002 recall election for mayor of Puerto Princesa City and from serving the unexpired portion of the 2001-2004 mayoralty term considering that he has thrice been consecutively elected and has served three full terms as Puerto Princesa City mayor from 1992-1998. In illuminating the gray interstices of this election case, prudence dictates that ". . . where the sovereignty of the people is at stake, we must not only be legally right but also politically correct."1 Private respondent Hagedorn was elected mayor of Puerto Princesa City, Palawan in 1992, 1995 and 1998 and served three full terms. In the May 14, 2001 national and local elections, he ran for governor for the Province of Palawan and lost. Petitioner-intervenor Victorino Dennis M. Socrates was elected mayor of Puerto Princesa City. On July 2, 2002, three hundred twelve (312) out of five hundred twenty-eight (528) members of the Barangay Officials of Puerto Princesa City convened themselves into a Preparatory Recall Assembly to initiate the recall of Mayor Socrates. On August 21, 2002, COMELEC promulgated Resolution No. 5673 prescribing a calendar of activities for the recall election. Two days after, Hagedorn filed his certificate of candidacy for mayor in said election. On August 27, 2002, petitioners Adovo and Gilo sought for Hagedorn's immediate disqualification on the ground that he had served three consecutive full terms as mayor of Puerto Princesa City immediately prior to the recall election and was thus proscribed by the Constitution from running in said election. On August 30, 2002, petitioner Ollave, Sr. intervened to disqualify Hagedorn on the same ground. The recall election was set on September 24, 2002. On September 20, 2002, public respondent COMELEC's First Division denied the petitions for Hagedorn's disqualification. The following day, petitioners Adovo, Gilo and Ollave, Sr. filed a motion for reconsideration imploring the COMELEC en banc to reverse the September 20 resolution. On September 23, 2002, the COMELEC en banc affirmed the resolution of the First Division holding Hagedorn qualified to run in the recall election. On September 24, 2002, petitioners Adovo, Gilo and Ollave, Sr. sought recourse in this Court with a Very Urgent Petition for Certiorari and Prohibition with Preliminary Injunction and Prayer for Temporary Restraining Order. On the same date, Mayor Socrates filed a petition-in-intervention to nullify the September 23 resolution of the COMELEC. The petitions before us raise the following issues: "I. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM RUNNING FOR THE POSITION OF MAYOR OF PUERTO PRINCESA CITY IN THE SCHEDULED RECALL ELECTION, THE CLEAR AND UNAMBIGUOUS CONSTITUTIONAL AND STATUTORY PROHIBITION AGAINST A FOURTH CONSECUTIVE TERM FOR LOCAL ELECTIVE OFFICIALS NOTWITHSTANDING.

II. THE HONORABLE COMELEC GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT PROCEEDED TO DIVIDE A SINGLE TERM OF OFFICE INTO TWO. III. THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AND VIOLATED THE INTENT AND PURPOSE FOR HOLDING THE SCHEDULED RECALL ELECTIONS FOR THE POSITION OF MAYOR OF PUERTO PRINCESA CITY AND THE CONSTITUTIONAL AND STATUTORY BAR AGAINST A FOURTH CONSECUTIVE TERM. IV. THE HONORABLE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM RUNNING IN THE UPCOMING RECALL ELECTIONS AS HIS INELIGIBILITY IS NOT APPARENT UNDER SECTIONS 65 AND 68 OF THE OMNIBUS ELECTION CODE, SECTIONS 39 AND 40 OF RA 7160 (LOCAL GOVERNMENT CODE), AND RULES 23 AND 25 OF THE COMELEC RULES OF PROCEDURE. V. THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT RESPONDENT HAGEDORN IS QUALIFIED TO RUN IN THE RECALL ELECTION EVEN IF HE STANDS DISQUALIFIED FROM SERVING UNDER A FOURTH CONSECUTIVE TERM AS SUCH IS ALLEGEDLY NOT THE PROVINCE OF THE INSTANT DISQUALIFICATION PROCEEDINGS. VI. THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT ISSUED A DEFECTIVE AND CLEARLY VOID RESOLUTION."2 The foregoing issues may be reduced to the singular issue of whether or not private respondent Hagedorn is disqualified from running in the September 24, 2002 recall election and serving as mayor of Puerto Princesa City considering that he has been thrice consecutively elected and has served three full terms in that position from 1992 to 2001. I find the petitions devoid of merit. Art. X, Sec. 8 of the Constitution provides: "Sec. 8: The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." This constitutional provision is restated in the Local Government Code of 1991, to wit: "Sec. 43. Term of Office. -. . . (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time

shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected." We have not interpreted Art. X, Sec. 8 of the Constitution in the recall election context of the cases at bar. It is imperative to distill the intent of the framers of the Constitution and the people who ratified it.3 Mere reliance on the surface meaning of the words of the above provision, however, will not suffice to capture this elusive intent. Thus, we turn to the proceedings and debates of the Constitutional Commission (ConCom) as an extrinsic aid to interpretation.4 The Record of the Constitutional Commission shows that Art. X. Sec. 8 was readily accepted by the Commissioners without much discussion;5 nonetheless, their debates on setting the term limit for Representatives show that the rationale for the limit applies to both Representatives and elective local officials. We quote at length the relevant portions of the debates, to wit: "MR. GARCIA. I would like to advocate the proposition that no further election for local and legislative officials be allowed after a total of three terms or nine years. I have four reasons why I would like to advocate this proposal, which are as follows: (1) to prevent monopoly of political power; (2) to broaden the choice of the people; (3) so that no one is indispensable in running the affairs of the country; (4) to create a reserve of statesmen both in the national and local levels. May I explain briefly these four reasons. First: To prevent monopoly of political power - Our history has shown that prolonged stay in public office can lead to the creation of entrenched preserves of political dynasties. In this regard, I would also like to advocate that immediate members of the families of public officials be barred from occupying the same position being vacated. Second: To broaden the choice of the people - Although individuals have the right to present themselves for public office, our times demand that we create structures that will enable more aspirants to offer to serve and to provide the people a broader choice so that more and more people can be enlisted to the cause of public service, not just limited only to those who may have the reason or the advantage due to their position. Third: No one is indispensable in running the affairs of the country After the official's more than a decade or nearly a decade of occupying the same public office, I think we should try to encourage a more team-oriented consensual approach to governance favored by a proposal that will limit public servants to occupy the same office for three terms. And this would also favor not relying on personalities no matter how heroic, some of whom, in fact, are now in our midst. Lastly, the fact that we will not reelect people after three terms would also favor the creation of a reserve of statesmen both in the national and local levels. Turnovers in public office after nine years will ensure that new ideas and new approaches will be welcome. Public office will no longer be a preserve of conservatism and tradition. At the same time, we will create a reserve of statesmen, both in the national and local levels, since we will not deprive the community of the wealth of experience and advice that could come from those who have served for nine years in public office. Finally, the concept of public service, if political dynasty symbolized by prolonged stay in particular public offices is barred will have fuller meaning. It will not be limited only to those who directly hold public office, but also to consultative bodies organized by the people,

among whom could be counted those who have served in public office with accomplishment and distinction, for public service must no longer be limited only to public office. xxx xxx xxx

MR. MONSOD. Madam President, I was reflecting on this issue earlier and I asked to speak because in this draft Constitution, we are recognizing people power. We have said that now there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at the same time, we are prescreening candidates among whom they will choose. We are saying that this 48-member Constitutional Commission has decreed that those who have served for a period of nine years are barred from running for the same position. The argument is that there may be other positions. But there are some people who are very skilled and good at legislation, and yet are not of a national stature to be Senators. They may be perfectly honest, perfectly competent and with integrity. They get voted into office at the age of 25, which is the age we provide for Congressmen. And at 34 years old we put them to pasture. Second, we say that we want to broaden the choices of the people. We are talking here only of congressional or senatorial seats. We want to broaden the people's choice but we are making a prejudgment today because we exclude a certain number of people. We are, in effect, putting an additional qualification for office - that the officials must not have served a total of more than a number of years in their lifetime. Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but the future participation of these statesmen is limited. Their skills may only be in some areas, but we are saying that they are going to be barred from running for the same position. Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing of his skills and competence, in intellectual combat, in concern and contact with the people, and here we are saying that he is going to be barred from the same kind of public service. I do not think it is in our place today to make such a very important and momentous decision with respect to many of our countrymen in the future who may have a lot more years ahead of them in the service of their country. If we agree that we will make sure that these people do not set up structures that will perpetuate them, then let us give them this rest period of three years or whatever it is. Maybe during that time, we would even agree that their fathers or mothers or relatives of the second degree should not run. But let us not bar them for life after serving the public for a number of years. xxx xxx xxx

MR. OPLE. . . . The principle involved is really whether this Commission shall impose a temporary or a perpetual disqualification on those who have served their terms in accordance with the limits on consecutive service as decided by the Constitutional Commission. I would be very wary about the Commission exercising a sort of omnipotent power in order to disqualify those who will already have served their terms from perpetuating

themselves in office. I think the Commission achieves its purpose in establishing safeguards against the excessive accumulation of power as a result of consecutive terms. We do put a gap on consecutive service - in the case of the President, six years; in the case of the VicePresident, unlimited; and in the case of the Senators, one reelection. In the case of the Members of Congress, both from the legislative districts and from the party list and sectoral representation, this is now under discussion and later on the policy concerning local officials will be taken up by the Committee on Local Governments. The principle remains the same. I think we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is taken care of because we put a gap on the continuity or unbroken service of all of these officials. But were we now (to) decide to put these prospective servants of the people or politicians, if we want to use the coarser term, under a perpetual disqualification, I have a feeling that we are taking away too much from the people, whereas we should be giving as much to the people as we can in terms of their own freedom of choice. I think the veterans of the Senate and of the House of Representatives here will say that simply getting nominated on a party ticket is a very poor assurance that the people will return them to the Senate or to the House of Representatives. There are many casualties along the way of those who want to return to their office, and it is the people's decision that matters. They judge whether or not a Soc Rodrigo, a Sumulong, a Padilla, an Alonto and a Rosales, after a first and second term, should go back to the Senate. That is a prerogative of the people that we should not take away from them -the right to judge those who have served. In any case, we already take away from the people the freedom to vote for the third termers because we say that a Senator, say, Mr. Rodrigo, is only good for twelve years. But if he wants to be like Cincinnatus, if he is called back by his people to serve again, let us say for a period of six years which Commissioner Davide called a period of hibernation which is spent at his fishpond in Bulacan, Bulacan - because there is a new situation in the country that fairly impels the people to summon him back, like Cincinnatus in the past, then there will no longer be any Cincinnatus. That is not perhaps a very important point, but I think we already have succeeded in striking a balance of policies, so that the structures, about which Commissioner Garcia expressed a very legitimate concern, could henceforth develop to redistribute opportunities, both in terms of political and economic power, to the great majority of the people, because very soon, we will also discuss the multiparty system. We have unshackled the Philippine politics from the two-party system, which really was the most critical support for the perpetuation of political dynasties in the Philippines. That is quite a victory, but at the same time, let us not despise the role of political parties. The strength of democracy will depend a lot on how strong our democratic parties are, and a splintering of all these parties so that we fall back on, let us say, nontraditional parties entirely will mean a great loss to the vitality and resiliency of our democracy... xxx xxx xxx

BISHOP BACANI. . . . I think when we voted on the provision that the illiterate be allowed to vote and when we proposed in this Constitutional Commission for initiative as a way also of empowering our people to engage in the legislative exercise, we are really presupposing the political maturity of our people. Why is it that that political maturity seems now to be denied by asking that we should put a constitutional bar to a further election of any Representative after a term of three years? Why should we not leave that to the premise accepted by

practically everybody here that our people are politically mature? Should we use this assumption only when it is convenient for us, and not when it may also lead to a freedom of choice for the people and for politicians who may aspire to serve longer? xxx xxx xxx

MR. GARCIA. I would like to answer Commissioner Bacani. We put a constitutional bar to reelection of any Representative basically because of the undue advantage of the incumbent. It is not because of lack of trust in the people. We realize from history that Mexico fought a revolution simply because of the issue of reelection. No reeleccion, sufragio universal. Basically, it is because of the undue advantage of the incumbent that he accumulates power, money, party machine or patronage. As regards what Commissioner Aquino has said, politics is not won by ideals alone; it is won by solid organizing work by organizations that have the capacity to do so; and normally the incumbent has all the advantages. . . xxx xxx xxx

THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We will now start the counting. Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-// Alternative No. 2 - no immediate reelection after three successive terms: /////-/////-/////-/////-//////"6 (emphasis supplied) In several cases, this Court was guided by the proceedings of the ConCom in construing Art. X, Sec. 8 of the Constitution in relation to Section 43(b) of the Local Government Code of 1991. Different from the issue presented by the cases at bar, however, the question in those cases was what constitutes a "term" for purposes of counting the three consecutive terms allowed under Art. X, Sec. 8. It is apropos to revisit these cases to aid us in extracting the intent behind said Constitutional provision and properly apply it to the unique case of private respondent Hagedorn. The maiden case was Borja, Jr. v. Commission on Elections and Jose T. Capco7 which involved the 1998 mayoralty election in Pateros. In 1989, private respondent Capco became mayor by operation of law upon the death of the incumbent, Cesar Borja. In 1992, he was elected mayor for a term ending in 1995. In 1995, he was reelected mayor for another term of three years ending in June 1998. In March 1998, he filed his certificate of candidacy for the May 1998 mayoralty election of Pateros. Petitioner Borja, Jr., another candidate for mayor, sought Capco's disqualification on the ground that by June 30, 1998, Capco would have already served as mayor for three consecutive terms and would therefore be ineligible to serve for another term. The COMELEC en banc declared Capco eligible to run for mayor, thus Borja, Jr. sought recourse in this Court. In dismissing the petition, we considered the historical background of Art. X, Sec. 8 of the Constitution, viz: "a consideration of the historical background of Article X, 8 of the Constitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of

Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term (2 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 [Session of July 25, 1986] . . .). Monsod warned against 'prescreening candidates [from] whom the people will choose' as a result of the proposed absolute disqualification, considering that the draft constitution contained provisions 'recognizing people's power.' xxx xxx xxx

Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose whom they wish to govern them be preserved. (emphasis supplied) xxx xxx xxx

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. This point can be made clearer by considering the following cases or situations: Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election? Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one "for which he was elected." Since A is only completing the service of the term for which the deceased and not he was elected, A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term. xxx xxx xxx

...the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. . . Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Art. X, 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Yes, because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death, of the deceased mayor.

To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for another term. But if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to office (even if it is just the third time he is standing for reelection) if his service of the first term is counted as one for the purpose of applying the term limit. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed."8 (emphasis supplied) We reiterated the Borja ruling in Lonzanida v. Commission on Elections, et al.9 which involved the election for mayor of San Antonio, Zambales. Prior to the May 8, 1995 elections, petitioner Romeo Lonzanida served two consecutive terms as municipal mayor of San Antonio, Zambales. In the May 1995 elections, he ran for mayor, was proclaimed winner, and assumed office. His proclamation was, however, contested by his opponent Juan Alvez in an election protest filed before the Regional Trial Court of Zambales which rendered a decision declaring a failure of elections. Upon appeal of the decision to the COMELEC, Alvez was declared the duly elected mayor of San Antonio. In February 1998, the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, and Alvez served the remainder of the term. Lonzanida filed his certificate of candidacy for the May 11, 1998 election for mayor of San Antonio. His opponent Eufemio Muli filed with the COMELEC a petition to disqualify Lonzanida on the ground that he had already served three consecutive terms in the same office and was thus prohibited from running in the upcoming election. On May 13, 1998, Lonzanida was proclaimed winner. COMELEC ruled that Lonzanida was disqualified as his assumption to office in 1995, although he was unseated before the expiration of the term, was considered one full term for purposes of counting the three term limit under the Constitution and the Local Government Code of 1991. On appeal to this Court, we ruled, viz: "It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio, Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term. The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of voluntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as a winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation... Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have served one full term from May 1995- 1998 because he

served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. In sum, the petitioner was not the duly elected mayor and he did not hold office for the full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit."10 (emphasis supplied) Finally, in the recent case of Adormeo v. COMELEC, et al.,11 we ruled that a mayor who assumed office via a recall election and served the unexpired portion of the mayoralty term is not considered to have served a full term for purposes of applying the three term limit. In this case, therein private respondent Ramon Talaga, Jr. was elected mayor in May 1992 and served the full term. In 1995, he was reelected and again served the full term. In 1998, he lost to Bernard G. Tagarao. About two years later, a recall election was held where Talaga, Jr. ran against Tagarao. He (Talaga, Jr.) won and served the remainder of Tagarao's term. In view of the upcoming May 2001 mayoralty election, Talaga, Jr. filed his certificate of candidacy. On March 2, 2001, therein petitioner Adormeo sought the cancellation of Talaga, Jr.'s certificate of candidacy and/or his disqualification on the ground that he had been thrice elected and had served three consecutive terms as city mayor. Talaga, Jr., however, was declared qualified for the position of city mayor. Adormeo thus sought recourse before this Court. Citing the Borja and Lonzanida rulings, we ruled that Talaga, Jr. was not disqualified as the two conditions for disqualification, namely (1) the elective official concerned was elected for three consecutive terms in the same post and (2) he has fully served three consecutive terms, were not met. We did not consider Talaga, Jr.'s service of the unexpired portion of Tagarao's term as service of a full term for purposes of the three term limit. We also ruled that he did not serve for three consecutive terms as there was a break in his service when he lost to Tagarao in the 1998 elections. We held, viz: "COMELEC's ruling that private respondent was not elected for three (3) consecutive terms should be upheld. For nearly two years, he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections. Patently untenable is petitioner's contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of the 1987 Constitution. (footnote omitted) To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that 'if one is elected representative to serve the unexpired term of another, that unexpired (term), no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed.' As pointed out by the COMELEC en banc, Fr. Bernas' comment is pertinent only to members of the House of Representatives. Unlike local government officials, there is no recall election provided for members of Congress. (Rollo, pp. 83-84)"12 (emphasis supplied) The deliberations of the ConCom and the ruling case law of Borja, Lonzanida and Adormeo show that there are two principal reasons for the three term limit for elective local officials: (1) to prevent political dynasties perpetuated by the undue advantage of the incumbent and (2) to broaden the choice of the people by allowing candidates other than the incumbent to serve the people. Likewise evident in the deliberations is the effort to balance between two interests, namely, the prevention of political dynasties and broadening the choice of the people on the one hand, and respecting the freedom of choice and voice of the people, on the other; thus, the calibration between perpetual

disqualification after three consecutive terms as proposed by Commissioner Garcia, and setting a limit on immediate reelection and providing for a hibernation period. In all three cases - Borja, Lonzanida and Adormeo - we ruled that the "term" referred to in the three term limit is service of a full term of three years for elective local officials. This ruling furthers the intent of the ConCom to prevent political dynasties as it is the service of consecutive full terms that makes service continuous and which opens the gates to political dynasties limiting the people's choice of leaders. In the words Of Commissioner Ople, ". . . we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is taken care of because we put a gap on the continuity or unbroken service of all of these officials. (emphasis supplied)" Thus, ConCom set the limit on consecutive full terms to no more than three. Otherwise stated, it is a fourth consecutive full term that is prohibited. In the cases at bar, however, private respondent Hagedorn will not serve a prohibited fourth consecutive full term as he will be serving only the unexpired portion of the 2001-2004 mayoralty term. Similar to Talaga, Jr. in the Adormeo case, Hagedorn's service as mayor will not be continuous from the third to a fourth consecutive full term as it was broken when Socrates was elected in the 2001 regular mayoralty election and served for one year. In the same vein that Talaga, Jr. was elected into office by recall election and his service of the unexpired portion of the incumbent's term was not considered a consecutive full term for purposes of applying the three term limit, Hagedorn's service of the unexpired portion of Socrates' term should not also be counted as a prohibited fourth consecutive full term. It should not make a difference whether the recall election came after the second consecutive full term as in the Adormeo case or after the third consecutive term as in the cases at bar because the intent to create a hiatus in service is satisfied in both instances. Even a textual analysis of Art. X, Sec. 8 will yield the interpretation that what is prohibited is the service of a fourth consecutive full term. Petitioners are correct in foisting the view that "term" is a fixed and definite period of time prescribed by law or the Constitution during which the public officer may claim to hold the office as a right. It is a fixed and definite period of time to hold office, perform its functions, and enjoy its privileges and emoluments until the expiration of the period.13 In ascertaining what "term" means for elective local officials, the Constitution itself provides in Art. X, Sec. 8 that it means a fixed, definite, and full period of three years, viz: "Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ..." Although one or more persons may discharge the duties of the office during this fixed three-year period, the term is not divided into smaller terms by the number of incumbents who may fill the office. It is one and indivisible, and term follows term in successive cycles of three years each. If the incumbent or the one elected to the office fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office, thereby creating a permanent vacancy,14 the term would remain unbroken until the recurring election for the office.15 The provisions on voluntary renunciation under Art. X, Sec. 8 and other articles of the Constitution bolster the interpretation that for purposes of applying the three term limit, service of a full term of three years is contemplated, viz: "Art. X, Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected."

"Art. VI, Sec. 4. . . . No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall be considered as an interruption in the continuity of his service for the full term for which he was elected. xxx xxx xxx

Sec. 7. . . . No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. xxx xxx xxx

Art. VII, Sec. 4. . . . No Vice-President shall serve more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected." (emphasis supplied) Similarly, the Local Government Code of 1991 provides in Sec. 43(b), viz: "Sec. 43(b) . . . No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected." (emphasis supplied) Likewise, because "term" is understood to be a fixed, definite, and full period, the Constitution, in Art. Vi, Sec. 9, uses the qualifier "unexpired term" to refer to only a portion of a term, viz: "Art. VI, Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term." (emphasis supplied) Similarly, Sec. 44 of the Local Government Code of 1991 uses the phrase "unexpired term" to mean the remainder of the term, viz: "Sec. 44(d). The successors as defined herein shall serve only the unexpired terms of his predecessors. . ." (emphasis supplied) Thus, when Art. X, Sec. 8 of the Constitution states that "...no such (local elective) official shall serve for more than three consecutive terms," it consistently means that it allows service of a maximum of three consecutive full terms and prohibits service of a minimum fourth consecutive full term. In putting a cap on the number of consecutive full terms an elective local official can serve, the ConCom sought to curb the undue advantage of the incumbent over other aspirants, which advantage makes it easier to found a political dynasty. At the time of the September 24, 2002 recall election, however, Hagedorn was not the incumbent favored with this feared "undue advantage of the incumbent." On the contrary, he ran against the incumbent Mayor Socrates who alone could be the subject of recall election and who, by law, was automatically a candidate in the election.16 Hagedorn did not run in the 2001 regular mayoralty election of Puerto Princesa City which Socrates won, precisely because he was aware of the three term limit.

It is my respectful submission that the Constitution and the Local Government Code of 1991 proscribe a local official who has been thrice consecutively elected in regular elections and has served three full terms in the same position, from running in the regular election succeeding his third consecutive term. It is this situation that is prohibited because it makes possible service of more than three consecutive and continuous full terms, i.e., service of a fourth consecutive full term. We cannot overstress that it is this continuousness that the ConCom feared would open the gates to the two evils sought to be avoided: the incumbent's use of his undue advantage to put up a political dynasty and limiting the people's choice of leaders. It is in this context of regular elections that our obiter dictum in the Lonzanida case, which petitioners harp on, should be understood. In that case, we opined that "[a]s finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office."17 Indeed, insofar as regular local elections are concerned, which were the elections involved in that case, there should be a hiatus of at least one full term of three years. On the other hand, in the case of a local official who assumes office through a recall election whether after his first, second, or third consecutive term- there is a break in his service caused by the election of the incumbent who was recalled. Even in the case of a local official who initially assumes office via recall election, then wins the two succeeding regular elections and serves two full terms in the same post, he is not prohibited from seeking another reelection and serving another full term. This is so because his service of the remainder of the incumbent's term via recall election is not, in reality and in law, a full term continuing on to his three succeeding full terms. Local officials who assume office via recall election serve only the unexpired portion of the incumbent's term and this service is not counted as a full term, despite the Constitutional mandate that the term of office of elective local officials is three years. Such is the design because Art. XVIII, Secs. 2 and 5 of the Constitution also prescribe synchronization of regular national and local elections beginning on the second Monday of May 1992,18 which is accomplished if the local official who assumes office through recall election serves only the incumbent's unexpired term. It is only in the case of Representatives (and Senators) that "if one is elected Representative to serve the unexpired term of another, that unexpired term will be considered one term for purposes of computing the number of successive terms allowed."19 The election herein contemplated is a special election thus this Constitutional intent does not apply to a recall election which involves only elective local officials. The Record bear this out, viz: "MR. SUAREZ. . . May we ask a clarificatory question regarding the interpretation of the provisions in Sections 3 and 6 in relation to Section 9 regarding the disqualification on the part of the Senator to run for two consecutive terms, and in the case of the Members of the House of Representatives, for three consecutive terms. For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President? MR. DAVIDE. Yes, because we speak of "term" and if there is a special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two terms for the Members of the Lower House."20 As we ruled in the Adormeo case, service of an unexpired term is considered service of a full term only with respect to Representatives (and Senators) because unlike local government officials, Representatives cannot be recalled. It is continuous prolonged stay in office that breeds political

dynasties. Understandably therefore, insofar as Representatives who cannot be recalled are concerned, service of an unexpired term is strictly counted as service of a full term because the purpose of the ConCom was to limit the right to run and be elected in Congress.21 In allowing Hagedorn to participate in the September 24 recall election, we are not unmindful of the intent of the ConCom to broaden the people's choice of leaders. The three term limit was adopted to allow the electorate to choose from other candidates in the regular election succeeding the incumbent's third consecutive term. This is clear in the Commissioners' alternatives for voting on the term limit for Representatives and the outcome of their voting where 17 voted for "no further election after a total of three terms" and 26 voted for "no immediate reelection after three successive terms." A reelection is immediate if a local official wins in the election succeeding the third consecutive term.22 This is not the case with Hagedorn who did not run in the 2001 regular mayoralty election and left that political arena to other contenders, thereby upholding the intent of the ConCom to broaden the choice of the electorate. The intent of the ConCom to create a hiatus in the service of elective local officials after three consecutive full terms cannot be undermined through abuse of the power of recall. The Local Government Code of 1991 provides limitations on recall in Section 74, viz: "Section 74. Limitations on Recall. (a) any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election." (emphasis supplied) Thus, an elective local official cannot perpetually hold on to his office through the mechanism of recall as at the very least, there will be a hiatus of one year after an unbroken service of three terms. He could not simply create, in the words of Commissioner Monsod, "structures that will perpetuate him (them)" in power with the assurance that they will not be exposed because after serving three consecutive full terms, he will certainly be replaced. Within the one-year period under Sec. 74, his successor could discover and begin to dismantle these manipulative structures. This one year period also provides a reasonable basis for the electorate to judge the performance of the incumbent successor, thus obviating fear of political maneuvering through initiation of recall proceedings by a Preparatory Recall Assembly dominated by minions of the previous local official.23 In Claudio v. COMELEC, et al.,24 we held, viz: "In the Bower case (in re Bower 41 I11. 777, 242 N.E. 2d 252 [1968]) cited by this Court in Angobung v. COMELEC (269 SCRA 245, 256 [1997]), it was held that 'The only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions.'"25 If, after one year in office, the incumbent proves himself to be worthy of his position, then his constituents will confirm this should a recall election be called, as in the case of Mayor Reynaldo Malonzo of Caloocan City. If, on the other hand, the incumbent turns out to be an ineffective leader, there is no reason why the electorate should not be allowed to make a Cincinnatus of their past leader. The imagined fear of abuse of the power of recall does not suffice to disqualify private respondent Hagedorn and should not prevail over the resounding voice of the people of Puerto Princesa City. They have spoken and there is no mistaking that Hagedorn is their overwhelming choice. We cannot subscribe to the petitioners' position and allow an overly literal reading of the law to mute the

electorate's cry and curtail their freedom to choose their leaders. This freedom was as much a concern of the ConCom as was the prevention of political dynasties and broadening the choice of the people. This Court has not just once admonished against a too literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of the authors.26 In sum, private respondent Hagedorn is not disqualified from running in the September 24, 2002 recall election as the disqualification under Art. X, Sec. 8 of the Constitution applies to the regular mayoralty election succeeding the third consecutive term served. Nor is he precluded from serving the unexpired portion of the 2001-2004 mayoralty term as this is not service of a prohibited fourth consecutive full term. I vote to deny the petition, giving due consideration to the tenet of representative democracy that the people should be allowed to choose whom they wish to govern them.27 In the end, ". . . more than judgments of courts of law, the judgment of the tribunal of the people is final for 'sovereignty resides in the people and all government authority emanates from them.'"28

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 153475 November 13, 2002

ATTY. MIGUEL M. LINGATING, petitioner, vs. COMMISSION ON ELECTIONS and CESAR B. SULONG, respondents. DECISION MENDOZA, J.: This is a petition for certiorari to set aside the resolution,1 dated April 4, 2002, of the Commission on Elections (COMELEC) en banc, reversing the resolution,2 dated August 1, 2001, of its First Division and dismissing the petition for disqualification filed by petitioner Miguel M. Lingating against respondent Cesar B. Sulong as candidate for mayor of Lapuyan, Zamboanga del Sur in the May 14, 2001 elections. On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to 40(b) of Republic Act No. 7160 (Local Government Code), which disqualifies from running for any elective local position "those removed from office as a result of an administrative case."3 It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other individuals,4 was administratively charged (AC No. 12-91) with various offenses,5 and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this

decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992.6 Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulongs motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulongs) motion had consequently remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-91. After the parties had filed their memoranda, the case was submitted for resolution. Because the COMELEC was unable to render judgment before the elections of May 14, 2001, respondent Sulong was voted for in the elections, receiving 4,882 votes as against the 3,611 votes for petitioner. On May 16, 2001, respondent Sulong was proclaimed by the Municipal Board of Canvassers of Lapuyan as the duly elected mayor of that municipality. In a resolution dated August 1, 2001, the COMELECs First Division declared respondent Cesar B. Sulong disqualified. It held: Section 40(b) of the Local Government Code is clear that any person removed from office by reason of an administrative case is disqualified from running for any elective local office. From such point, it is clear that Respondent Sulong was declared guilty of having violated the AntiGraft and Corrupt Practices Act by the Sangguniang Panlalawigan of Zamboanga del Sur. . .which. . .has become final and executory, thereby depriving him of his right to run for public office. .... WHEREFORE, in the light of the foregoing, this Commission hereby resolves to GRANT this Petition and DISQUALIFY Respondent Cesar B. Sulong to run for Municipal mayor for Lapuyan, Zamboanga del Sur in the May 14, 2001 Elections in violation of Section 40[b] of the Local Government Code.7 Respondent Sulong filed a motion for reconsideration citing a certification, dated August 7, 2001, of Provincial Secretary of Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC No. 12-91 "has not become final and executory as the final disposition thereof was overtaken by the local elections of May 1992." He reiterated his claim that at no time had he been removed by virtue of the said decision.8 Petitioner filed an opposition contending, among other things, that the fact that Zamboanga del Sur Governor Ariosa had ordered the enforcement of the decision signified that respondent Sulongs motion for reconsideration and/or notice of appeal had not been given due course by the Sangguniang Panlalawigan; and that respondent Sulongs claim that he had not been removed from office was belied by the fact that he (respondent Sulong) brought charges against Vicente Imbing for Usurpation of Official Functions (I.S. No. 92-35), in support of which respondent Sulong attested under oath that Imbing had succeeded him as mayor of Lapuyan.9 In a separate motion, petitioner prayed that the resolution of August 1, 2001 be executed and that he be installed as mayor of Lapuyan in view of private respondents disqualification. On August 30, 2001, the COMELECs First Division denied petitioners motion for execution on the ground that the disqualification of an elected candidate does not entitle the candidate who obtained the second

highest number of votes to occupy the office vacated.10Petitioner then filed a motion for reconsideration of this order.11 On April 4, 2002, the COMELEC en banc issued its resolution subject of the petition in this case, reversing the resolution, dated August 1, 2001, of its First Division insofar as it found respondent Sulong disqualified from running as mayor. It held: The only issue in this case is whether or not the foregoing decision [in AC No. 12-91], assuming it has become final and executory, constitutes a ground for the disqualification of herein respondentmovant as a candidate in the elections [of May 14, 2001]. The records of the case reveal that the decision of the Sangguniang Panlalawigan was promulgated on February [4], 1992 finding respondent Sulong "guilty of dishonesty, falsification of public documents, malversation. . ." In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan, Zamboanga del Sur despite the decision of the Sangguniang dismissing him from office. In the 1995 May elections, respondent Sulong ran and won the mayoralty elections of Lapuyan, Zamboanga del Sur. While it is true that one of the disqualifications from running in an elective position is removal from office as a result of an administrative case, said provision no longer applies if the candidate whose qualification is questioned got re-elected to another term. In Aguinaldo vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-election renders an administrative case moot and academic. .... Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections would be tantamount to a condonation of the Sangguniang Panlalawigan decision promulgated 04 February 1992 which found him guilty of dishonesty, malversation of public funds etc[.], granting said decision has become final and executory. Moreover, the people of LAPUYAN have already expressed their will when they cast their votes in the recent elections as evidenced by the results which found respondent Sulong to have won convincingly. .... WHEREFORE, premises considered, the Commission En Banc RESOLVED as it hereby RESOLVES to reverse the First Division Resolution [dated August 1, 2001] and DISMISS the petition for lack of merit.12 The COMELEC en banc also ruled that, in any event, respondent Sulong was not entitled to occupy the office thus vacated. Hence, this petition by Lingating. Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v. Commission on Elections13 in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections14 in which we held that an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under 40(b) of the Local Government Code.

We stated in Reyes: Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, . . . the decision in the administrative case, . . . was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. The records of this case show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a "motion for reconsideration and/or notice of appeal;" that on February 27, 1992, the Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91, to comment; and that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang Panlalawigan resolved respondents motion. The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. Thus, it was held15 that a party in a disbarment proceeding under Rule 139-B, 12(c) can move for a reconsideration of a resolution of the Integrated Bar of the Philippines although Rule 139-B does not so provide: Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration, nothing in its text or history suggests that such motion is prohibited. It may therefore be filed . . . . Indeed, the filing of such motion should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment [an] opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of evidence. There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was "overtaken by the local elections of May [11,]1992." Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor,

respectively, be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to 6816 of the Local Government Code, which makes decisions in administrative cases immediately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since, at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. Having come to the conclusion that respondent Sulong is not disqualified from holding the position of mayor of Lapuyan, it is unnecessary to pass upon petitioners contention that, as the candidate who obtained the second highest number of votes, he is entitled to be installed as mayor because the votes cast in favor of respondent Sulong were void. WHEREFORE, the petition for certiorari is DISMISSED and the resolution, dated April 4, 2002, of the COMELEC en banc, dismissing petitioners petition for disqualification, is AFFIRMED. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Corona, Morales, Callejo, Sr., and Azcuna, JJ., concur. Austria-Martinez, J., on leave.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 146875 July 14, 2003

KAGAWADS JOSE G. MENDOZA, ROSARIO B. ESPINO, TERESITA S. MENDOZA, JORGE BANAL, Chairman of the Special Investigation Committee on Administrative Cases Against Elected Barangay Officials of the Quezon City Council and ISMAEL A. MATHAY, JR., City Mayor of Quezon City, petitioners, vs. BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent. YNARES-SANTIAGO, J.: Is the taking of an oath of office anew by a duly proclaimed but subsequently unseated local elective official a condition sine qua non to the validity of his re-assumption in office where the Commission on Elections (COMELEC) orders the relinquishment of the contested position? This is the legal question raised in this petition under Rule 45 of the 1997 Rules of Civil Procedure, assailing the November 13, 2000 Summary Judgment1 of the Regional Trial Court of Quezon City,

Branch 77, which set aside the decision of the City Council of Quezon City finding respondent Barangay Captain Manuel D. Laxina guilty of grave misconduct. On May 27, 1997, respondent took his oath and thereafter assumed office as the duly proclaimed and elected barangay captain of Barangay Batasan Hills, Quezon City, in the 1997 Barangay Elections. Meanwhile, Roque Fermo, his rival candidate, filed an election protest with the Metropolitan Trial Court of Quezon City, Branch 40. On January 18, 1999, Fermo was declared as the winner in the Barangay Elections. Respondent filed a notice of appeal with the COMELEC while Fermo filed a motion for execution pending appeal. On January 20, 1999, an order was issued by the trial court granting the motion for execution pending appeal. Hence, respondent vacated the position and relinquished the same to Fermo. Thereafter, respondent filed a petition with the COMELEC questioning the January 20, 1999 order of the trial court. On September 16, 1999, the COMELEC issued a resolution2 annulling the order which granted the execution of the decision pending appeal on the ground that there existed no good reasons to justify execution. The dispositive portion thereof reads: WHEREFORE, in view of all the foregoing, the Commission En Banc GRANTS the petition. Accordingly, the January 20, 1999 Order of the Court a quo is hereby ANNULLED. Private respondent ROQUE FERMO is hereby ORDERED to CEASE and DESIST from further performing the functions of Punong Barangay of Barangay Batasan Hills, District II, Quezon City and to relinquish the same to Petitioner MANUEL LAXINA, SR., pending final resolution of appeal. SO ORDERED.3 On October 27, 1999, the COMELEC issued a writ of execution directing Fermo to vacate the office of Barangay Chairman of Barangay Batasan Hills. On October 28, 1999, Fermo was served a copy of the writ of execution but refused to acknowledge receipt thereof. He also refused to vacate the premises of the barangay hall of Batasan Hills.4 This did not, however, prevent respondent and his staff from discharging their functions and from holding office at the SK-Hall of Batasan Hills.5 On the same date, respondent appointed Godofredo L. Ramos as Barangay Secretary6 and on November 8, 1999, he appointed Rodel G. Liquido as Barangay Treasurer.7 On November 12, 1999, the COMELEC, acting on respondent's motion to cite Fermo for contempt,8 issued an alias writ of execution,9 which was likewise returned unsatisfied. Finally, on November 16, 1999, respondent took his oath of office as Barangay Captain of Batasan Hills, Quezon City before Mayor Ismael Mathay, Jr.10 The following day, November 17, 1999, Roque Fermo turned over to respondent all the assets and properties of the barangay.11 On November 20, 1999, the Barangay Council of Batasan Hills issued Resolution No. 001-S-1999 ratifying the appointment of Godofredo L. Ramos as Barangay Secretary, effective November 1, 199912 and Resolution No. 002-S-1999 ratifying the appointment of Rodel G. Liquido, as Barangay Treasurer, also effective November 1, 1999.13 However, the appointees of Roque Fermo to the same position registered objections to the said Resolutions. In order to accommodate these appointees, respondent agreed to grant them allowances and renumerations for the period of November 17, 1999.14 In Resolution No. 017-S-99 dated December 11, 1999, the barangay council of Batasan Hills, authorized the appropriation of P864,326.00 for the November to December 1999 salary of its barangay officials and employees.15 Pursuant thereto, the barangay payroll was issued on December 18, 1999, enumerating the names of respondent and his appointed barangay secretary and

barangay treasurer as among those entitled to compensation for services rendered for the period November 8, 1999 to December 31, 1999.16 Petitioners Jose G. Mendoza, Jr., Rosario E. Espino and Teresita S. Mendoza, who were barangay councilors, refused to sign Resolution No. 017-S-99 as well as said payroll.17 Sometime in January 2000, petitioner barangay councilors filed with the Quezon City Council a complaint18 for violation of the anti-graft and corrupt practices act and falsification of legislative documents against respondent and all other barangay officials who signed the questioned resolution and payroll, namely, Barangay Secretary Godofredo L. Ramos, Barangay Treasurer Rodel G. Liquido, Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T. Castaeda, Elias G. Gamboa, and SK-Chairman Sharone Amog. They contended that defendants made it appear in the payroll that he and his appointees rendered services starting November 8, 1999 when, in truth, they commenced to serve only on November 17, 1999 after respondent took his oath and assumed the office of barangay chairman. They further claimed that the effectivity date of the barangay secretary and barangay treasurer's appointment, as approved in Resolution No. 001-S1999, was November 16, 1999, but respondent fraudulently antedated it to November 1, 1999. Petitioners also contended that respondent connived with the other barangay officials in crossing out their names in the payroll. In their joint counter-affidavit,19 defendants claimed that the taking anew of the oath of office as barangay chairman was a mere formality and was not a requirement before respondent can validly discharge the duties of his office. They contended that respondent's appointees are entitled to the remuneration for the period stated in the payroll as they commenced to serve as early as October 28, 1999. They added that the names of the 3 petitioner barangay councilors who refused to sign the assailed resolution and daily wage payroll were crossed out from the said payroll to prevent any further delay in the release of the salaries of all barangay officials and employees listed therein.20 On October 2, 2000, the Special Investigation Committee on Administrative Cases of the City ruled that respondent had no power to make appointments prior to his oath taking on November 16, 1999.21 The Committee, however, found that respondent and the other barangay officials who signed the questioned resolution and payroll acted in good faith when they erroneously approved the grant of renumerations to respondent's appointees starting November 8, 1999. Nevertheless, it found respondent guilty of grave misconduct and recommended the penalty of 2 months suspension. The charges against Barangay Secretary Godofredo Ramos and Barangay Treasurer Rodel Liquido were dismissed, inasmuch as the City Council's disciplinary jurisdiction is limited to elective barangay officials only. As to Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T. Castaeda, Elias G. Gamboa, and SK-Chairman Sharone Amog, the charges against them were likewise dismissed on the ground that there was no "separate and independent proof that . . . [they] conspired with Punong Barangay Laxina . . . Ramos and Liquido in committing the acts therein complained of."22 On October 3, 2000, the Quezon City Council adopted the findings and recommendations of the Committee.23Respondent filed a motion for reconsideration.24 On October 9, 2000, however, the City Council implemented the decision and appointed Charlie Mangune as acting barangay chairman of Batasan Hills, Quezon City.25 Respondent filed a petition for certiorari26 with the Regional Trial of Quezon City, Branch 67, seeking to annul the decision of the Quezon City Council. In their answer, petitioners prayed for the dismissal of the petition, arguing that respondent failed to exhaust administrative remedies and the trial court has no jurisdiction over the case because appeals from the decision of the City Council should be brought to the Office of the President.

On November 13, 2000, a summary judgment was rendered by the trial court in favor of respondent. It did not rule on the propriety of the re-taking of the oath office by the latter, but nevertheless, exonerated him on the basis of the finding of the City Council that he did not act in bad faith but merely "misread the law, as applied to the facts." The dispositive portion of the said decision, states: WHEREFORE, the decision finding herein petitioner guilty of grave misconduct and imposing upon him the penalty of suspension and loss of concomitant benefits for two (2) months is hereby annulled and set aside. The suspension of the petitioner is hereby lifted and all benefits due to him are ordered restored. The motion for a preliminary hearing on the affirmative defense of respondents and the motion to drop City Councilor Banal as party respondent are both denied. SO ORDERED.27 Petitioners filed the instant petition for review raising pure questions of law. Before going into the substantive issues, we shall first resolve the issue on exhaustion of administrative remedies. The trial court ruled that Section 67 of the Local Government Code, which allows an appeal to the Office of the President, is not applicable because the decision of the City Council is final and executory. It added that respondent correctly filed a petition for certiorari because he had no other plain, speedy and adequate remedy. The trial court further ratiocinated that an appeal to the Office of the President before going to the regular courts might render the case moot and academic inasmuch as the penalty of suspension might have been fully served by the time the court renders a decision. Sections 61 and 67 of the Local Government Code, provide: Section 61. Form and Filing of Administrative Complaints. A verified complaint against any erring local elective official shall be prepared as follows: xxx xxx xxx

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory. (emphasis supplied) Sec. 67. Administrative Appeals. Decisions in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following: xxx xxx xxx

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and thesangguniang panlungsod of highly urbanized cities and independent component cities. Decision of the Office of the President shall be final and executory.

In interpreting the foregoing provisions, the trial court did not consider Section 68 of the same code which provides: An appeal shall not prevent a decision from being final and executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event that he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal. Obviously, the said Code does not preclude the taking of an appeal. On the contrary, it specifically allows a party to appeal to the Office of the President. The phrases "final and executory," and "final or executory" in Sections 67 and 68, respectively, of the Local Government Code, are not, as erroneously ruled by the trial court, indicative of the appropriate mode of relief from the decision of the Sanggunian concerned. These phrases simply mean that the administrative appeals will not prevent the enforcement of the decisions.28 The decision is immediately executory but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be.29 It is clear that respondent failed to exhaust all the administrative remedies available to him. The rule is that, before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be availed of by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought. The premature invocation of the court's intervention is fatal to one's cause of action.30 The application of the doctrine of exhaustion of administrative remedies, however, admits of exceptions, one of which is when the issue involved is purely legal.31 In the case at bar, the issues of whether or not the decision of the Sangguniang Panlungsod in disciplinary cases is appealable to the Office of the President, as well as the propriety of taking an oath of office anew by respondent, are certainly questions of law which call for judicial intervention.32 Furthermore, an appeal to the Office of the President would not necessarily render the case moot and academic. Under Section 68, in the event the appeal results in his exoneration, the respondent shall be paid his salary and such other emoluments during the pendency of the appeal. Hence, the execution of the penalty or expiration of term of the public official will not prevent recovery of all salaries and emoluments due him in case he is exonerated of the charges. Clearly, therefore, the trial court correctly took cognizance of the case at bar, albeit for the wrong reasons. We now come to the substantive issues. To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. It is only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete.33 However, once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof. The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions.34 Unless his election is annulled by a final and executory decision,35 or a valid execution of an order unseating him pending appeal is issued, he has the lawful right to assume and perform the duties of the office to which he has been elected. In the case at bar, respondent was proclaimed as the winner in the 1997 Barangay Elections in Batasan Hills, Quezon City; he took his oath on May 27, 1997 and thereafter assumed office. He is therefore vested with all the rights to discharge the functions of his office. Although in the interim, he

was unseated by virtue of a decision in an election protest decided against him, the execution of said decision was annulled by the COMELEC in its September 16, 1999 Resolution which, incidentally, was sustained by this Court on March 13, 2000, in Fermo v. Commission on Elections.36 It was held therein that "[w]hen the COMELEC nullified the writ of execution pending appeal in favor of FERMO, the decision of the MTC proclaiming FERMO as the winner of the election was stayed and the 'status quo' or the last actual peaceful uncontested situation preceding the controversy was restored . . ."37 The status quo referred to the stage when respondent was occupying the office of Barangay Captain and discharging its functions. For purposes of determining the continuity and effectivity of the rights arising from respondent's proclamation and oath taken on May 27, 1997, it is as if the said writ of execution pending appeal was not issued and he was not ousted from office. The re-taking of his oath of office on November 16, 1999 was a mere formality considering that his oath taken on May 27, 1997 operated as a full investiture on him of the rights of the office. Hence, the taking anew of his oath of office as Barangay Captain of Batasan Hills, Quezon City was not a condition sine qua non to the validity of his re-assumption in office and to the exercise of the functions thereof. Having thus ruled out the necessity of respondent's taking anew of the oath of office, the next question to be resolved is: when is respondent considered to have validly re-assumed office from October 28, 1999, the date of service of the writ of execution to Roque Fermo and the date respondent actually commenced to discharge the functions of the office, or from November 17, 1999, the date Roque Fermo turned over to respondent the assets and properties of Barangay Batasan Hills, Quezon City? The records show that the COMELEC served on October 28, 1999 a writ of execution ordering Fermo to desist from performing the function of the Office of Barangay Captain, but the latter refused to comply therewith. His supporters prevented respondent from occupying the barangay hall, prompting the latter to move for the issuance of an alias wit of execution, which was granted on November 12, 1999. It was only on November 17, 1999 that the turn-over to respondent of the assets and properties of the barangay was effected. Undoubtedly, it was Fermo's defiance of the writ that prevented respondent from assuming office at the barangay hall. To reckon, therefore, the effectivity of respondent's assumption in office on November 17, 1999, as petitioners insist, would be to sanction dilatory maneuvers and to put a premium on disobedience of lawful orders which this Court will not countenance. It is essential to the effective administration of justice that the processes of the courts and quasi-judicial bodies be obeyed.38 Moreover, it is worthy to note that although the physical possession of the Office of the Barangay Captain was not immediately relinquished by Fermo to respondent, the latter exercised the powers and functions thereof at the SK-Hall of Batasan Hills, Quezon City starting October 28, 1999. His re-assumption in office effectively enforced the decision of the COMELEC which reinstated him in office. It follows that all lawful acts of the latter arising from his re-assumption in office on October 28, 1999 are valid. Hence, no grave misconduct was committed by him in appointing Godofredo L. Ramos and Rodel G. Liquido as Barangay Secretary and Barangay Treasurer, respectively, and in granting them emoluments and renumerations for the period served. Respondent was also charged of conniving with the other barangay officials in crossing out the names of the petitioner barangay councilors in the payroll. The petition alleged that as a consequence of the striking out of the names of the petitioner barangay officials, they were not able to receive their salaries for the period November 8 to December 31, 1999.39 A reading of the payroll reveals that the names of said petitioners and their corresponding salaries are written thereon. However, they refused to sign the payroll and to acknowledge receipt of their salaries to manifest their protest. Quod quis ex culpa sua damnum sentire. Indeed, he who suffered injury through his own fault is not considered to have suffered any damage.40 Hence, the investigative committee correctly brushed aside this charge against respondent.

The trial court therefore did not err in exonerating respondent and pursuant to Article 68 of the Local Government Code, he should be paid his salaries and emoluments for the period during which he was suspended without pay. WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The Summary Judgment of the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. Q-00-42155, exonerating respondent Manuel D. Laxina, Sr., of the charge of grave misconduct and ordering the payment of all benefits due him during the period of his suspension, is AFFIRMED. SO ORDERED. Vitug, Carpio and Azcuna, JJ ., concur. Davide, Jr., C .J ., concurs in the result.

EN BANC

[G.R. No. 151944. January 20, 2004]

ENGR. ERNESTO T. MATUGAS, petitioner, vs. COMMISSION ON ELECTIONS and ROBERT LYNDON S. BARBERS, respondents. DECISION
TINGA, J.:

The Local Government Code of 1991 requires that an elective local official be a citizen of the Philippines. Whether the incumbent Governor of Surigao del Norte is a citizen of the Philippines and, therefore, qualified to hold such office is the issue in this case.
[1] [2]

On February 28, 2001, private respondent Robert Lyndon S. Barbers filed his certificate of candidacy for the position of Governor of Surigao del Norte for the May 14, 2001 elections. On April 10, 2001, petitioner Ernesto T. Matugas, himself a candidate for the same post, filed with the Commission on Elections (COMELEC) a Petition to Disqualify private respondent as candidate. The Petition alleged, among other grounds, that private respondent is not a Filipino citizen. In support of this claim, petitioner offered in evidence a copy of a letterrequest dated August 25, 2000 from a certain Jesus Agana, a confidential

agent of the Bureau of Immigration, addressed to one George Clarke, purportedly of the United States Embassy. Below the request was the reply of said George Clarke stating that the subject was naturalized as an American citizen on October 11, 1991 in Los Angeles, California. The document reads:
[3]

Dear Mr. Clark [sic]: Per our phone conversation, may I request for [sic] a certification from your Embassy regarding the US citizenship of MR. ROBERT LYNDON S. BARBERS who was born on July 15, 1968. Kindly fax your reply, addressed to the undersigned at Tel. No. (02) 3384456. Thank you and regards. Very truly yours, (Sgd.) JESUS AGANA Confidential Agent Jesus Agana: SUBJECT was naturalized on October 11, 1991 in Los Angeles, CA. (Sgd.) G.R. Clarke, INS/Manila Petitioner also presented a Certification issued by the Bureau of Immigration and Deportation (BID) dated 1 September 2000 containing Barbers travel records and indicating in certain entries that private respondent is an American citizen. The Certification states:
[4]

CERTIFICATION THIS IS TO CERTIFY THAT the name BARBERS, ROBERT LYNDON S, American, appears in our available Computer Database/Passenger manifest/IBM listing on file as of September 1, 2000 10:27 am with the following travel records: Date of Departure : 01/28/1997

Destination Flight No. Passport No. Nationality Date of Birth Phil. Address Immig. Status Immig. Officer Date of Arrival Origin Flight No. Passport No. Nationality Date of Birth Phil. Address Immig. Status Immig. Officer Date of Arrival Origin Flight No. Passport No. Nationality

: OSA-Osaka : NWo26-Northwest Airlines : 034354245 : Filipino : 07/15/1968 : 6 Hercules St. Bel Air II Makati : RP : not stated : 02/12/1998 : LON-London : PR731-Phil. Airlines : 034354245 : American : American : 6 Hercules St. Bel Air II Makati : BB365 : REGALA : 07/31/1998 : BKK-Bangkok : TG620-Thai Airways : OF006673 : American

Date of Birth Phil. Address Immig. Status Immig. Officer

: 07/15/1968 : 16 Hercules St. Bel Air II Makati : BB365 : SOR

FURTHER, THIS IS TO CERTIFY THAT the name BARBERS, ROBERT LYNDON SMITH, American, appears in our Computer Database/Passenger manifest/IBM listing on file with the following travel records: Date of Departure : 07/27/1998 Destination Flight No. Passport No. Nationality Date of Birth Phil. Address Immig. Status Immig. Officer : not available : TG621-Thai Airways : not available : Filipino : 07/15/1968 : not available : not available : RACHO

This certification is issued upon request of Mr. Bebot Pomoy for whatever legal purpose it may serve. Verified by Date & Time : Edilberto Orbase Computer Section : September 1, 2000 10:27 am (Sgd.) ATTY. FELINO C. QUIRANTE, JR. Acting Chief, Admin. Division In addition, petitioner submitted a Certification issued by the Special Committee on Naturalization of the Office of the Solicitor General stating that,
[5]

based on their records, there is no pending petition by private respondent for repatriation. Neither has one been granted in his favor. In the meantime, private respondent garnered the highest number of votes in the gubernatorial race. On May 17, 2001, petitioner filed aMotion for Suspension/Annulment of Proclamation of private respondent. The Motion, however, was overtaken by subsequent events when, on the following day, May 18, 2001, private respondent was proclaimed the duly elected governor of Surigao del Norte. On July 5, 2001, the Second Division of the COMELEC issued a Resolution dismissing for lack of merit the Petition to Disqualify. The COMELEC found little or no probative value in the notation of George Clarke to Aganas letter-request. While noting that the BID certification involving the travel records of Robert Lyndon S. Barbers stated that he was an American, the COMELEC held that there is no other independent evidence... to justify petitioners claim that respondent has renounced his allegiance to the Philippines at any time.
[6] [7]

Petitioner filed a Motion for Reconsideration with the COMELEC En Banc, which on January 8, 2002 dismissed the Motion and affirmed theResolution of the Second Division. Petitioner thus instituted these proceedings for certiorari, claiming that the COMELEC committed grave abuse of discretion in denying hisPetition to Disqualify. He maintains that private respondent was not a Filipino citizenship at the time of his election.
[8]

Basic in the law of evidence is that one who alleges a fact has the burden of proving it. In administrative cases, the quantum of proof required is substantial evidence. Petitioner did not overcome his burden. The documentary evidence he submitted fails to establish that private respondent is not a Filipino citizen.
[9] [10]

The document containing the notation of George Clarke does not prove that private respondent is indeed a naturalized American citizen. For the purpose of their presentation in evidence, documents are either public or private. Public documents include the written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country. The record of such public documents may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record. If the record is not kept in the Philippines, the attested copy should be accompanied by a certificate that such officer has custody thereof.
[11] [12]

The grant of United States citizenship by naturalization is an the United States. The document containing the record of therefore, a public document and, following the rule cited document can only be evidenced by its official publication or attested by the officer having legal custody thereof.

official act of this act is, above, this a copy duly

The notation in the letter-inquiry of Jesus Agana is neither an official publication of the document that contains the record of private respondents naturalization, nor a copy attested by the officer who has legal custody of the record. Petitioner did not show if Clarke, the notations alleged author, is the officer charged with the custody of such record. Furthermore, Section 7, Rule 130 of the Rules of Court states that when the original of a document is in the custody of a public officer or is recorded in a public office, as in this case, the contents of said document may be proved by a certified copy issued by the public officer in custody thereof. The subject letter-inquiry, which contains the notation, appears to be a mere photocopy, not a certified copy. The other document relied upon by petitioner is the Certification dated 1 September 2000 issued by the BID. Petitioner submits that private respondent has declared that he is an American citizen as shown by said Certification and, under Section 26, Rule 130 of the Rules of Court, such declaration may be given in evidence against him. The rule cited by petitioner does not apply in this case because the rule pertains to the admissibility of evidence. There is no issue here as to the admissibility of the BID Certification; the COMELEC did not hold that the same was inadmissible. In any case, the BID Certification suffers from the same defect as the notation from the supposed US Embassy official. Said Certification is also a photocopy, not a certified copy. Moreover, the certification contains inconsistent entries regarding the nationality of private respondent. While some entries indicate that he is American, other entries state that he is Filipino. Petitioner also attached in his Memorandum before this Court another document, obviously a photocopy, which reads in full:
[13]

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA U.S. COURTHOUSE 312 NORTH SPRING STREET, SUITE 329 LOS ANGELES, CALIFORNIA, 90012

August 1, 2001 The official Naturalization the United States District Court of California shows the following: Name: Robert Lyndon Barbers Date of Birth: July 15, 1968 Petition No.: 890573 Alien No.: A40 460 660 Certificate No.: 14738741 Date of Naturalization: October 11, 1991 (Sgd.) Deputy Clerk Abel Martinez The above document was attached to an Authentication, also a photocopy, stating:
[14]

CONSULATE GENERAL OF THE PHILIPPINES) CITY OF LOS ANGELES )S.S. STATE OF CALIFORNIA, U.S.A. AUTHENTICATION TO ALL WHOM THESE PRESENTS SHALL COME, GREETINGS: I, CRISTINA G. ORTEGA, CONSUL at Los Angeles, California, duly commissioned and qualified, do hereby certify that ABEL MARTINEZ whose seal/signature appears on the annexed certificate was, at the time he signed the annexed certificate, A Deputy Clerk of the United States District Court, Central District of California and verily believe that his seal/signature affixed thereto is genuine. For the contents of the annexed document, this Consulate General assumes no responsibility. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Consulate General of the Republic of the Philippines at Los Angeles, California, U.S.A., to affixed this day of 30 August 2001. (Sgd.) CRISTINA G. ORTEGA

Consul of the Republic of the Philippines The annexed document is an Information of Naturalization Re: Robert Lyndon Barbers executed by United States District Court, Central District of California Subsequently, petitioner filed a Manifestation with Motion for Leave to Admit Original Documents, appending thereto the originals of the above documents.
[15]

These new documents likewise cannot be admitted in evidence. To repeat, Section 24, Rule 132 of the Rules of Court requires that if the public document or the public record is not kept in the Philippines, its official publication or its copy duly attested by the officer in charge of the custody of the same must be accompanied by a certificate that such officer has the custody. Said certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his office. In this case, the Authentication executed by Cristina G. Ortega, the Philippine Consul in Los Angeles, California merely states that Abel Martinez is the Deputy Clerk of the United States District Court, Central District of California. It does not state that said Deputy Clerk has the custody of the above record. There is another cogent reason that precludes the admission of these documents. Petitioner calls upon this Court to consider alleged newevidence not presented before the COMELEC, a course of action clearly beyond the courts certiorari powers. In Lovina and Montila v. Moreno and Yonzon, the Court of First Instance (CFI) conducted a trial de novo even though the Secretary of Public Works and Communications, in the exercise of his administrative powers, had made his own independent findings of fact. This Court reversed the decision of the CFI because:
[16]

The findings of the Secretary can not be enervated by new evidence not laid before him, for that would be tantamount to holding a new investigation, and to substitute for the discretion and judgment of the Secretary the discretion and judgment of the court, to whom the statute had not entrusted the case. It is immaterial that the present action should be one for prohibition or injunction and not one for certiorari; in either event the case must be resolved upon the evidence submitted to the Secretary, since a judicial review of executive decisions does not import a trial de novo, but only an ascertainment of whether the executive findings are not in violation of the

Constitution or of the laws, and are free from fraud or imposition, and whether they find reasonable support in the evidence. Similarly, petitioner in this case cannot enervate the COMELECs findings by introducing new evidence before this Court, which in any case is not a trier of facts, and then ask it to substitute its own judgment and discretion for that of the COMELEC. The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, and documents forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action. This is true whether the decision elevated for review originated from a regular court or an administrative agency or quasi-judicial body, and whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal presentation of evidence is simply not in accord with orderly justice.
[17] [18] [19] [20] [21] [22] [23] [24]

The same rules apply with greater force in certiorari proceedings. Indeed, it would be absurd to hold public respondent guilty of grave abuse of discretion for not considering evidence not presented before it. The patent unfairness of petitioners plea, prejudicing as it would public and private respondents alike, militates against the admission and consideration of the subject documents. Finally, petitioner in his Memorandum invokes the case of Yu v. Defensor-Santiago, holding that a naturalized Filipino citizen effectively renounces his Filipino citizenship when he applies for and is issued a Portuguese passport, and declares his nationality as a Portuguese in commercial documents he signed. That case, however, has no relevance here because the documents submitted in this case, assuming that they constitute substantial evidence that private respondent indeed renounced his Filipino citizenship, are inadmissible. In other words, there is no evidence in this case of any renunciation.
[25] [26]

There is grave abuse of discretion amounting to lack of jurisdiction when the respondent board, tribunal or officer exercising judicial functions exercised its judgment in a capricious, whimsical, arbitrary or despotic manner, as when the assailed order has no basis both in fact and in law. In this case, the Petition to Disqualify is not supported by substantial evidence. Hence, the COMELEC did not commit grave abuse of discretion in issuing the assailed Resolutions dismissing the Petition.
[27]

WHEREFORE, the Petition is DISMISSED. SO ORDERED.

Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Davide, Jr., C.J., concur, but without prejudice to a more appropriate action.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 147767 January 14, 2004

MANUEL E. ZAMORA, petitioner, vs. GOVERNOR JOSE R. CABALLERO, ANESIO M. RANARIO, in his capacity as Provincial Administrator, MARIANO KINTANAR, in his capacity as Provincial Auditor, CARMEN R. RASUL, in his capacity as Provincial Treasurer, ROLANDO L. OSORIO, BELINDA G. APAWAN, ARMANDO L. SERAS, RUWEL PETER S. GONZAGA, ARMANDO C. CODILLA, RAUL B. BASAÑES, GRACIANO C. ARAFOL, JR., respondents. DECISION CARPIO-MORALES, J.: Petitioner Manuel Zamora, a member of the Sangguniang Panlalawigan of Compostela Valley (the Sanggunian), seeks to invalidate all acts executed and resolutions issued by the Sanggunian during its sessions held on February 8 and 26, 2001 for lack of quorum. It appears that on February 6, 2001, Vice-Governor Reynaldo Navarro sent a written notice of a special session on February 7, 2001.1 Upon the request of Governor Jose R. Caballero, however, the scheduled special session was reset to February 8, 2001 without the benefit of a written notice.2 On February 8, 2001, the Sanggunian thus held a special session to, among other things, allow the Governor to deliver his State of the Province Address. As only seven members of the fourteenmember Sanggunian were present,3 no resolution was considered. On February 26, 2001, the Sanggunian held its 4th regular session during which it issued Resolution No. 054declaring the entire province of Compostela Valley under a state of calamity and Resolution No. 075 authorizing the Governor to, on behalf of the province, enter into a construction contract (Contract) with Allado Construction Company, Inc. (the Allado Company) for the completion of Phase II of the construction of the capitol building. During the same session, the Sanggunian

accepted the letter of irrevocable resignation submitted by Board Member Gemma Theresa M. Sotto.6 While only eight members of the Sanggunian were present at the commencement of the session on February 26, 2001, the Journal of the Proceedings (Journal) and Resolution Nos. 05 and 07 showed that a total of thirteen members attended it.7 Petitioner thus filed a petition8 before the Regional Trial Court (RTC) of Nabunturan, Compostela Valley against the Governor, et al., challenging the validity of the acts of the Sanggunian on February 26, 2001, alleging that while the Journal and Resolutions indicated the presence of 13 members, the Sanggunian nonetheless "conducted official business without a quorum"9 as only seven of its fourteen members were actually present when the irrevocable letter of resignation of Board Member Sotto was noted,10 and the motions to declare the entire province of Compostela Valley under a state of calamity11 and to authorize the Governor to enter into the Contract with the Allado Company12 were approved.13 Petitioner additionally alleged that when the vote respecting Resolution No. 05 was taken, only the remaining six members voted for the adoption thereof, the then presiding officer Board Member Rolando Osorio not having cast his vote;14 that when Resolution No. 07 was taken up, however, then presiding officer Osorio,15 relinquished his seat to Board Member Graciano Arafol after the six members present unanimously voted on the said resolution in the affirmative, following which Osorio cast his vote as a member also in the affirmative, thereby authorizing the Governor to enter into the Contract with Allado Company; and that Board Member Arafol thereafter relinquished his seat as presiding officer to Board Member Osorio who once again assumed the duties of a presiding officer.16 Petitioner furthermore challenged the validity of the special session of February 8, 2001 for lack of quorum, there being only seven members of the Sanggunian in attendance, and for lack of written notice sent to all members at least 24 hours before the holding of the special session in accordance with Section 52 (d)17 of the Local Government Code of 1991 (LGC).18 Respondents, on the other hand, contended that since Board Member Sotto was in the United States19 at the time the questioned acts were executed and resolutions adopted, the actual number of Board Members then in the country was thirteen which should be the basis of the determination of a quorum. Branch 3 of the RTC of Nabunturan, at Compostela Valley, by Order20 of April 24, 2001, dismissed the petition upon the following ratiocination: . . . Gemma Theresa M. Sotto should not be counted as member for the purpose of determining the number to constitute a quorum because she is in the United States of America. However, sub-paragraph (b) [of section 53 of the Local Government Code] states and provides for compulsion of any member absent without any justifiable cause. This is interpreted by the Supreme Court in the case of Jose Avelino, petitioner vs. Mariano J. Cuenco, respondent, G.R. No. L-2821, March 4, 1949. Gemma Theresa M. Sotto is beyond the reach of the legal processes of the Sangguniang Panlalawigan and could not be arrested to compel her to attend its session. Quorum should be determined on the basis of the actual number of members of the body concerned rather than upon its full membership which is fourteen (14). Therefore, in this case, with seven (7) members of the thirteen (13) members present in constitutive of a quorum. x x x

Moreover, Presidential Decree 181821 prohibits the issuance of a restraining order or injunction in any case involving government infrastructure projects.22 (Emphases omitted) Hence, the present petition for Certiorari under Rule 45, faulting the trial court for erroneously (1) applying the case of Avelino v. Cuenco23 to a controversy involving a local government unit; (2) taking judicial notice of Board Member Sottos being in the United States without proof thereof; and (3) ruling that to grant a Temporary Restraining Order would be in violation of P.D. 1818.24 Respondents question the authority of the Court to look beyond the Journal and Resolutions of the Sanggunian25and assert that the construction of the capitol building26 cannot be enjoined. And they too assert that the presence of thirteen members at the February 26, 2001 session should be conclusive on the strength of Arroyo v. De Venecia27 and U.S. v. Pons.28 Citation of these cases is misplaced, however. In Arroyo v. De Venecia, this Court refused to inquire into allegations that the House of Representatives failed to comply with the rules of procedures which the House itself promulgated absent any showing that there was a violation of a constitutional provision or of the rights of private individuals. In U.S. v. Pons, this Court did not go beyond the legislative journals which it found clear and explicit, it holding that to disprove the entries in the journals, evidence must be adduced based merely upon the memory or recollection of witnesses in contrast to journals which are the acts of the Government or sovereign itself.29 In the instant case, this Court is not called upon to inquire into the Sanggunians compliance with its own rules. Rather, it is called upon to determine whether the Sanggunian complied with the LGC, a law enacted by Congress, and its Implementing Rules. Moreover, the Journal of the Sanggunian is far from clear and explicit as to the presence of a quorum when the questioned acts were taken. It does not indicate how many members were actually present when the body voted on the motions leading to the adoption of Resolution Nos. 05 and 07. While the Journal and the Resolutions show that 13 members attended the session,30 the Journal shows that only six members were called by the presiding officer to vote on the motions.31 Six members whose names appear in attendance, namely: Vice Governor Navarro and Board Members Zamora, Yanong, Castillo, Andres and Gentugaya, were not called and, save for the absent Vice Governor,32 no explanation was given therefor. Coincidentally, in Resolutions 05 and 07, the names of the Board Members who were not called upon to vote, including petitioner as he had in the meantime left, are followed by two asterisks (**). Additionally, it was clearly noted by petitioner, when he asked permission to leave the session, that only seven members were left: SP Member ZAMORA : Mr. President, I move to adjourn, Mr. President. SP Member ARAFOL : Objection Mr. President. SP Member ZAMORA : Mr. President, before the objection, before objection Mr. President, I would like to invite everybody to go at my service I have a patient nga gi-pagawas na sa hospital nga i-uli na sa Awao, its been there for one hour so I really have to go I have to carry that patient to Awao Mr. President.

SP Member OSORIO : You are excused Honorable SP Member ZAMORA : Okay, then remember that youre only seven Mr. President. SP Member ARAFOL : No problem. SP Member ZAMORA : Okay so its alright for you to decide. The seven of you. I would like to manifest in the record that before further discussion that SP Member GONZAGA : Mr. President he is already excused Mr. President. SP Member ZAMORA : Yes but I would like to make statement first for the record, for the record. That I do not want Mr. President that the incident of the of the State of the Province Address will be repeated Mr. President, wherein there are only seven members present and the quorum was declared Mr. President. x x x SP Member GONZAGA : Thats only your opinion . . .33 (Underscoring supplied) Respondents themselves admit that there were only seven members present when the motions were voted upon: 26. Nevertheless, even if that remark constituted a proper question on quorum, it is a matter of fact that there were still seven (7) members present. x x x [T]here is a quorum since seven is a majority of thirteen (13). x x x34 (Emphasis supplied.) Clearly, this Court is constrained to look into the proceedings of the Sanggunian as recorded in the Journal and not just rely on Resolution Nos. 05 and 07 to determine who and how many participated in the consideration thereof. The placing of the asterisks after the names of five members in the Resolutions is highly irregular and suspicious especially since both resolutions indicate that petitioner, whose name is also followed by asterisks, was present even if it is clear from the Journal that he had already left the session before the Sanggunian took note of the resignation of Board Member Sotto and voted on the motions. Respondents other contention that the construction of the capitol building cannot be enjoined in light of Malaga v. Penachos, Jr.35 fails to convince. In Malaga, this Court declared that although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in technical cases. On issues clearly outside this dimension and involving questions of law, this Court declared that courts could not be prevented from exercising their power to restrain or prohibit administrative acts.36 Respondents maintain that the exception in Malaga as indicated above should not be applied in the instant case because there was therein a defect in the compliance with procedural rules on bidding. In contrast, respondents stress, the bidding for the construction of the capitol building in which the winner was the Allado Company was not defective, they adding that Resolution 07 simply authorized the Governor to formalize the Contract necessary for the full implementation of the project.37 This Court fails to see the essential difference between Malaga and the instant case.

In both cases, the defect in the Contract relates to the non-compliance with the mandate of a law respecting requirements before validly entering into a contract. In Malaga, the defect pertained to bidding. In the present case, the alleged defect pertains to the required number of votes necessary to authorize the Governor to enter into a construction contract. Clearly then, what is at issue in this case is not the propriety or the wisdom of entering into the Contract for the construction of the capitol building, which is beyond the power of this Court to enjoin, but the Sanggunians compliance with the requirements prescribed under the LGC before it may grant the Governor authority to enter into the Contract, which issue falls under the exception to the proscription against injunctions in cases involving infrastructure projects, as held in Malaga. On the applicability of Avelino38 to the present case: The issue in said case was whether there was a quorum in a meeting attended by only 12 of 24 senators, one having been in the hospital while another was out of the country. This Court held that although the total membership of the Senate was 24, the presence of 12 members already constituted a quorum since the 24th member was outside the country and beyond the coercive power of the Senate.39 In the instant case, there is nothing on record, save for respondents allegation, to show that Board Member Sotto was out of the country and to thereby conclude that she was outside the coercive power of the Sanggunian when the February 8 and 26, 2001 sessions were held. In fact it is undisputed that the leave form filed by said Board Member before the Department of Interior and Local Government (DILG) did not mention that she was going out of the country.40 Petitioners contention that the trial court cannot take judicial notice of Board Member Sottos whereabouts is thus well taken. On this score, the instant case is outside the application of the doctrine in Avelino. A court may take judicial notice of matters of public knowledge, or those which are capable of unquestionable determination or ought to be known to judges because of their judicial functions.41 With respect to disputed facts, however, the court must receive evidence thereof, with notice to the parties.42 Also, in Avelino, the legislative body involved was the Senate and the applicable rule on quorum was that embodied in Article VI, Section 10 of the 1935 Constitution which reads: Section 10. x x x (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner and under such penalties as such House may provide.43 (Emphasis supplied) The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of Compostela Valley Province, and the applicable rule respecting quorum is found in Section 53(a) of the LGC which provides: Section 53. Quorum.(a) A majority of all members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business. Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results. (Emphasis supplied)

"Quorum" is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid act.44 "Majority," when required to constitute a quorum, means the number greater than half or more than half of any total.45 In fine, the entire membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that "majority of each House shall constitute a quorum," Section 53 of the LGC is more exacting as it requires that the "majority of all members of the sanggunian . . . elected and qualified" shall constitute a quorum. The difference in the wordings of the Constitution and the LGC is not merely "a matter of style and writing" as respondents would argue, but is actually a matter of "meaning and intention."46 The qualification in the LGC that the majority be based on those "elected and qualified" was meant to allow sanggunians to function even when not all members thereof have been proclaimed.47 And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave. What should be important then is the concurrence of election to and qualification for the office. And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence. The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority of sanggunian members present when there is no quorum.48 A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the participation of all its members so that they may not only represent the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts done during an unauthorized session. Board Member Sotto is then deemed not resigned because there was no quorum when her letter of irrevocable resignation was noted by the Sanggunian. For the same reason, Resolution Nos. 05 and 07 are of no legal effect. Even assuming arguendo that there were indeed thirteen members present during the questioned February 26, 2001 session, Resolution No. 05 declaring the entire province of Compostela Valley under state of calamity is still null and void because the motion for its approval was approved by only six members.49 When there are thirteen members present at a session, the vote of only six members can not, at any instance, be deemed to be in compliance with Section 107(g)50 of the Rules and Regulations Implementing the LGC which requires the concurrence of the approval by the majority of the members present and the existence of a quorum in order to validly enact a resolution. The motion to grant the Governor authority to enter into the construction contract is also deemed not approved in accordance with the law even if it received seven affirmative votes, which is already the majority of thirteen, due to the defect in the seventh vote. For as priorly stated, as the Journal confirms, after all six members voted in the affirmative, Board Member Osorio, as acting presiding officer, relinquished his seat to Board Member Arafol and thereafter cast his vote as a member in favor of granting authority to the Governor.51

This Court is faced with an act clearly intended to circumvent an express prohibition under the law a situation that will not be condoned.52 The LGC clearly limits the power of presiding officers to vote only in case of a tie, to wit: Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang panlalawigan x x x. The presiding officer shall vote only to break a tie. (b) In the event of inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. x x x (Italics in the original. Emphasis supplied.) While acting as presiding officer, Board Member Osorio may not, at the same time, be allowed to exercise the rights of a regular board member including that of voting even when there is no tie to break. A temporary presiding officer who merely steps into the shoes of the presiding officer could not have greater power than that possessed by the latter53 who can vote only in case of a tie. Lastly, for a resolution authorizing the governor to enter into a construction contract to be valid, the vote of the majority of all members of the Sanggunian, and not only of those present during the session, is required in accordance with Section 46854 of the LGC in relation to Article 10755 of its Implementing Rules. Even including the vote of Board Member Osorio, who was then the Acting Presiding Officer, Resolution No. 07 is still invalid. Applying Section 468 of the LGC and Article 107 of its Implementing Rules, there being fourteen members in the Sanggunian, the approval of eight members is required to authorize the governor to enter into the Contract with the Allado Company since it involves the creation of liability for payment on the part of the local government unit. WHEREFORE, the petition is hereby GRANTED. The assailed Order of the Regional Trial Court of Nabunturan, Compostela Valley dated April 24, 2001 is hereby reversed and set aside. Resolution Nos. 05 and 07 of the Sangguniang Panlalawigan of Compostela Valley approved on February 26, 2001 declaring the entire Province of Compostela Valley under a state of calamity and granting authority to the Provincial Governor to enter into a general construction agreement, respectively, are hereby declared null and void. SO ORDERED. Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 154616 July 12, 2004

GOV. ANTONIO CALINGIN, petitioner, vs. COURT OF APPEALS, Special 17th Division, EXECUTIVE SECRETARY RENATO S. DE VILLA, DEPT. OF INTERIOR & LOCAL GOVERNMENT SECRETARY JOEY LINA,*UNDERSECRETARY EDUARDO R. SOLIMAN, JR., DEPARTMENT OF THE INTERIOR & LOCAL GOVERNMENT, REGIONAL OFFICE NO. 10, DIRECTOR RODOLFO Z. RAZUL, respondents.

RESOLUTION

QUISUMBING, J.: Before us is a petition for review seeking to annul the Resolution1 dated May 11, 2001 of the Court of Appeals in CA-G.R. SP No. 64583, which denied petitioner Governor Antonio Calingins petition for prohibition with prayer for temporary restraining order and/or the issuance of an order of status quo ante, as well as its Resolution2 dated July 1, 2002, denying the motion for reconsideration. The antecedent facts, as summarized by the Court of Appeals and borne by the records, are as follows: The Office of the President issued a Resolution3 dated March 22, 2001 in OP Case No. 00-1-9220 (DILG ADM. Case No. P-16-99) entitled Vice Governor Danilo P. Lagbas, et al. versus Governor Antonio P. Calingin (Misamis Oriental) suspending Gov. Calingin for 90 days. On April 30, 2001, Undersecretary Eduardo R. Soliman of the Department of the Interior and Local Government (DILG), by authority of Secretary Jose D. Lina, Jr., issued a Memorandum4 implementing the said Resolution of the Office of the President. On May 3, 2001, Gov. Calingin filed before the Office of the President a Motion for Reconsideration.5 The DILG Memorandum bore the authority of the Commission on Elections (COMELEC) which granted an exemption to the election ban in the movement of any public officer in its Resolution No. 39926 promulgated on April 24, 2001. This was in pursuance to COMELEC Resolution No. 3401 which provides in part that Section 1. Prohibited Acts (a) During the election period from January 2, 2001 until July 13, 2001, no public official shall make or cause any transfer/detail whatsoever of any officer or employee in the civil service, including public school teachers, or suspend elective provincial, city, municipal or barangay official, except upon prior written approval of the Commission. On May 7, 2001, Gov. Calingin filed a petition for prohibition before the Court of Appeals to prevent the DILG from executing the assailed suspension order. However, on May 11, 2001, the Court of Appeals dismissed the said petition and by resolution issued on July 1, 2002, denied petitioners motion for reconsideration. Hence, this appeal by certiorari where petitioner asserts that the Court of Appeals erred in

 FINDING THAT THE EXECUTION OF THE SUSPENSION ORDER OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT DURING THE ELECTION PERIOD IS WITH AUTHORITY FROM THE COMMISSION ON ELECTIONS. FINDING THAT THE DECISION OF THE OFFICE OF THE PRESIDENT IS FINAL AND EXECUTORY AS PROVIDED IN SECTION 67, CHAPTER 4, OF REPUBLIC ACT 7160, THE LOCAL GOVERNMENT CODE OF 1991.7 In dispute is the validity of the DILG Memorandum implementing the suspension order issued by the Office of the President. We are asked to resolve in this connection two issues: (1) Was the decision of the Office of the President already final and executory? and (2) Was the exemption from the election ban in the movement of any public officer granted by COMELEC valid? Petitioner contends that decisions of the Office of the President on cases where it has original jurisdiction become final and executory only after the lapse of 15 days from the receipt thereof and that the filing of a Motion for Reconsideration shall suspend the running of the said period8 in accordance with Section 15,9 Chapter 3, Book VII of the Administrative Code of 1987. Petitioner further contends that Section 67,10 Chapter 4 of the Local Government Code (Rep. Act 7160), which provides that decisions of the Office of the President shall be final and executory, applies only to decisions of the Office of the President on administrative cases appealed from the sangguniang panlalawigan, sangguniang panlungsod of highly-urbanized cities and independent component cities, and sangguniang bayan of municipalities within the Metro Manila Area. It does not cover decisions on cases where the Office of the President has original jurisdiction such as those involving a Provincial Governor.11 In Lapid v. Court of Appeals,12 we held that it is a principle of statutory construction that where there are two statutes that apply to a particular case, that which was specially intended for the said case must prevail. The case on hand involves a disciplinary action against an elective local official. Thus, the Local Government Code is the applicable law and must prevail over the Administrative Code which is of general application.13 Further, the Local Government Code of 1991 was enacted much later than the Administrative Code of 1987. In statutory construction, all laws or parts thereof which are inconsistent with the later law are repealed or modified accordingly.14 Besides, even though appeal to the Court of Appeals is granted under Sec. 1,15 Rule 43 of the Revised Rules of Court, Sec. 12,16 Rule 43 of the Revised Rules of Court in relation to Sec. 6817 of the Local Government Code provides for the immediate execution pending appeal. Under the same case of Lapid v. Court of Appeals,18 we enunciated that the decisions of the Office of the President under the Local Government Code are immediately executory even pending appeal because the pertinent laws under which the decisions were rendered mandated them to be so. In sum, the decisions of the Office of the President are final and executory. No motion for reconsideration is allowed by law but the parties may appeal the decision to the Court of Appeals. The appeal, however, does not stay the execution of the decision. Thus, the DILG Secretary may validly move for its immediate execution. As to the validity of the exemption granted by COMELEC in its Resolution No. 3992, petitioner claims that the exemption was invalid for being based on a mere draft resolution. According to him, a draft resolution does not operate as a final resolution of a case until the proper resolution is duly signed and promulgated. Petitioner maintains that a draft cannot produce any legal effect.

A perusal of the records, however, reveals that the Resolution in O.P. Case No. 00-1-9220 was approved and signed on March 22, 2001 by Executive Secretary Renato de Villa by the authority of the President. Hence, the approval was before the promulgation of COMELEC Resolution No. 3992 on April 24, 2001. The record also shows that the request to implement the said suspension order was filed on March 22, 2001 by the Senior Deputy Executive Secretary of the Office of the President pursuant to the requirements stated in the Resolution. Moreover, COMELEC Resolution No. 352919 which may be applied by analogy and in relation to Sec. 220 of COMELEC Resolution No. 3401 merely requires the request to be in writing indicating the office and place from which the officer is removed, and the reason for said movement, and submitted together with the formal complaint executed under oath and containing the specific charges and the answer to said complaint. The request for the exemption was accompanied with the Affidavit of Complaint, Affidavit of Controversion, Reply and Draft Resolution. The pertinent documents required by the COMELEC to substantiate the request were submitted. There being a proper basis for its grant of exemption, COMELEC Resolution No. 3992 is valid. WHEREFORE, the instant petition for review on certiorari is DENIED. The assailed Court of Appeals resolutions dated May 11, 2002 and July 1, 2002 in CA-G.R. SP No. 64583 are hereby AFFIRMED. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.