Local Government Law Vacancies To Removal

G.R. No.
96817 July 25, 1991

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

Department of Local Government
PNCC Bldg., EDSA Corner Reliance St.,
Mandaluyong, Metro Manila
OFFICE OF THE SECRETARY
November 19, 1990
Zaldy B. Docena for petitioner.
Sir:
CRUZ, J.:p
Pursuant to the provisions of existing

laws, you are hereby appointed
MEMBER OF THE SANGGUNIANG
PANLALAWIGAN, PROVINCE OF
EASTERN SAMAR.
Two persons are claiming the same position in

the Sangguniang Panlalawigan of Eastern
Samar by virtue of separate appointments
thereto extended to them by the same authority.
The first appointment was replaced by the
second appointment, which was subsequently
withdrawn to reinstate the first appointment, but
this was later itself recalled in favor of the
second appointment. To add to the confusion,
the Sangguniang Panlalawigan has joined the
fray and taken it upon itself to decide who as
between the two claimants is entitled to the
office.
The case arose when Luis B. Capito, who had
been elected to and was serving as a member of
the Sangguniang Panlalawigan of Eastern
Samar (SPES) died in office and petitioner
Agustin B. Docena was appointed to succeed
him.
The appointment was issued on November 19,
1990, 1 by Secretary Luis T. Santos of the
Department of Local Government and read in
full as follows:
Pursuant thereto, the petitioner took his oath of

office before Speaker Ramon V. Mitra of the
House of Representatives on November 22,
1990, 2 and assumed office as member of the
SPES on November 26, 1990. 3
The record does not show why, but on
November 27, 1990, private respondent
Socrates B. Alar was appointed, also by
Secretary Luis T. Santos, to the position already
occupied by Docena. 4 The appointment read in
full as follows:
By virtue hereof, you may qualify and

enter upon the performance of the
duties of the office, furnishing this Office
and the Civil Service Commission
copies of your oath of office.

November 27, 1990
Sir:
Very truly yours,

By Authority of the President
LUIS T. SANTOS
Secretary
Mr. AGUSTIN B. DOCENA

Thru: The Honorable Governor
Province of Eastern Samar
Pursuant to the provisions of existing

laws, you are hereby appointed
MEMBER OF THE SANGGUNIANG
PANLALAWIGAN, PROVINCE OF
EASTERN SAMAR.
By virtue hereof, you may qualify and
enter upon the performance of the
duties of the office, furnishing this Office
and the Civil Service Commission with
copies of your oath of office.
Very truly yours,
By Authority of the President
LUIS T. SANTOS
Thru: The Honorable Governor
dated November 19, 1990 was

already issued to Mr. AGUSTIN
DOCENA as member of the
Sangguniang Panlalawigan of
Eastern Samar, vice: Luis
Capito, the appointment issued
to you dated November 27,
1990 as member of the same
sanggunian, is hereby recalled
effective the date of issue.
Eastern Samar
Please be guided accordingly.
Secretary
Atty. SOCRATES ALAR
On December 18, 990, the SPES passed

Resolution No. 75 5 recognizing Alar rather than
Docena as the legitimate successor of the late
Board Member Capito.
The following day, the SPES was in effect
reversed by Secretary Santos when he
addressed the following letter to Alar: 6
Department of Local
Government
LUIS T. SANTOS
Secretary
cc: The Honorable Governor
Borongan, Eastern Samar
Mr. Socrates Alar

Dear Mr. Alar:
It appearing from perusal of
records that an appointment
The reaction of the SPES was to pass,

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

appointment of Mr. Agustin
Docena stands and should be
recognized.
Very truly yours,
PNCC Bldg., EDSA Corner

Reliance St.,
to the same post in favor of Atty.

Socrates Alar on November 27,
1990; the Secretary, on
December 19, 1990, has
recalled the appointment of Atty.
Socrates Alar on the basis of the
earlier appointment extended in
favor of Mr. Docena.
This action was affirmed in a First Indorsement

dated January 4, 1991, signed by Head
Executive Assistant Arturo V. Agundo of the
Department of Local Government, 7 in which he
declared "by authority of the Secretary" that
1. Records show that the
Secretary has appointed Mr.
Agustin B. Docena as
Sangguniang Panlalawigan
Member as of November 19,
1990; the Secretary has
extended another appointment
On the same date, Provincial Prosecutor Dario

S. Labrador had rendered an opinion that the
recall order of Secretary Santos was "void ab
initio"' because Alar's right to the office "had
become vested." 9
It is not clear if Secretary Santos agreed with
these views, but at any rate he issued on
February 20, 1991, another recall order. 10 this
time addressed to Docena, reading in full as
follows:

MEMORANDUM
TO: MR. AGUSTIN DOCENA
SUBJECT: RECALL OF APPOINTMENT
Please be informed that the

appointment extended to you as
Member of the Sangguniang
Panlalawigan of Eastern Samar, last
November 19, 1990 is hereby recalled
effective immediately.
You are hereby directed to turn-over the
office to Mr. Socrates Alar who was
appointed by this Department on
November 27, 1990, immediately upon
receipt hereof.
For compliance.
cc: The Honorable Governor
Province of Eastern Samar
Mr. Socrates Alar
Docena then came to this Court in a petition
for mandamus to compel the respondents to
recognize and admit him as a lawfully appointed
member of the Sangguniang Panlalawigan of
Eastern Samar. He also seeks to hold them
officially and personally liable in damages for
their refusal to do so in spite of his clear title to
the disputed office.
Pending resolution of this case, we issued a

temporary restraining order on January 31,
1991, enjoining both Docena and Alar from
assuming the office of member of the
Sangguniang Panlalawigan of Eastern Samar.
The pertinent legal provision is Section 50 of the
Local Government Code reading as follows:
Sec. 50. Permanent Vacancies
in Local Sanggunians. In
case of permanent vacancy in
the sangguniang panlalawigan,
sangguniang panlungsod,
sangguniang bayan, or
sangguniang barangay, the
President of the Philippines,
upon recommendation of the
Minister of Local Government,
shall appoint a qualified person
to fill the vacancy in the
sangguniang panlalawigan and
the sangguniang panlungsod;
the governor, in the case of
sangguniang bayan members;
or the city or municipal mayor, in
the case of sangguniang
barangay members. Except for
the sangguniang barangay, the
appointee shall come from the
political party of the sanggunian
member who caused the
vacancy, and shall serve the
unexpired term of the vacant
office.
The petitioner makes the point, and it has not
been disputed by the respondents, that both he
and Capito ran for the provincial board in the
1988 elections under the banner of Lakas ng
Bansa. Later, they both joined the Laban ng
Demokratikong Pilipino under the leadership of
Speaker Mitra, who administered the oath of
office to him when he was appointed to the
SPES on November 19, 1990. Docena argues
that he has a preferential right to the disputed
office even on equitable grounds because he

placed ninth in the election, next to Capito,
compared to Alar who did not even run for the
office.
The respondents do not challenge the
qualifications of the petitioner. But they contend
that the appointment in his favor on November
19, 1990, had been superseded by the
appointment in favor of Alar on November 27,
1990, and that the recall of the second
appointment on December 19, 1990, was null
and void ab initio for lack of previous hearing.
Curiously, they do not have the same view of the
recall of Docena's appointment on February 20,
1991, which was also issued without hearing.
From the tenor of the appointment extended to
Docena on November 19, 1990, there is no
question that it was intended to be permanent,
to fill the permanent vacancy caused by Capito's
death. As such, it was to be valid for the
unexpired portion of the term of the deceased
member, who was entitled to serve "until noon of
June 30, 1992," in accordance with Article XVIII,
Section 2, of the Constitution.
The said appointment had been accepted by
Docena, who had in fact already assumed office
as member of the SPES as per certification of
the Provincial Secretary. 11 For all legal intents
and purposes, the petitioner's appointment had
already become complete and enforceable at
the time it was supposed to have been
"superseded" by the appointment in favor of
Alar.
The respondents are ambivalent about the
power of the Secretary of Local Government to
recall his appointments. They described the
appointment as "whimsical, capricious and
wishy-washy" but they had no similar complaints
about the recall of Docena's appointment
although also apparently indecisive. On the
contrary, they maintained a deep silence about
this other recall and insisted simply that the
subsequent appointment of Alar had invalidated

the earlier appointment of Docena.
It is noteworthy that absolutely no reason was
given for the recall of Docena's appointment (or
for that matter, the recall of Alar's appointment).
It appears that after appointing Docena and later
twice sustaining his title to the office, Secretary
Santos simply had a change of heart and
decided to award the position to Alar.
This is not the way things are done in a
democracy.
Docena's appointment having been issued and
accepted earlier, and the petitioner having
already assumed office, he could not thereafter
be just recalled and replaced to accommodate
Alar. The appointment was permanent in nature,
and for the unexpired portion of the deceased
predecessor's term. Docena had already
acquired security of tenure in the position and
could be removed therefrom only for any of the
causes, and conformably to the procedure,
prescribed by the Local Government
Code. 12 These requirements could not be
circumvented by the simple process of recalling
his appointment.
Whatever gave the SPES the impression that
the questioned appointments were revocable at
will can only be left to conjecture; what is certain
is that it was not based on careful legal study.
The Provincial Prosecutor's opinion that the
office had "become vested" in Alar suffers from
the same flaw and a lack of understanding of the
nature of a public office. Political rather than
legal considerations seem to have influenced
the action of the provincial government in
rejecting the petitioner's claim despite its
obvious merit.
The respondents also argue that the petitioner
should have sought to enforce his claimed right
in a petition not formandamus but for quo
warranto, as his purpose is to challenge Alar's

title to the disputed office. That is only secondary
in this case. The real purpose of the present
petition is to compel the respondent SPES to
recognize and admit Docena as a member of
the body by virtue of a valid appointment
extended to him by the Secretary of Local
Government.
Mandamus is employed to compel the
performance of a ministerial duty to which the
petitioner is entitled. In arguing that the
recognition and admission of the petitioner is not
a ministerial duty, the respondents are asserting
the discretion to review, and if they so decide,
reject, the Secretary's appointment. They have
no such authority. Faced with a strictly legal
question, they had no right and competence to
resolve it in their discretion. What they should
have done was reserve their judgment on the
matter, leaving it to the courts of justice to
decide which of the conflicting claims should be
upheld. As a local legislative body subject to the
general supervision of the President of the
Philippines, the SPES had no discretion to rule
on the validity of the decisions of the Secretary
of Local Government acting as her alter ego.
Even assuming that the proper remedy is a
petition for quo warranto, the Court may in its
own discretion consider the present petition a.
such and deal with it accordingly. We find that as
a petition for quo warranto, it complies with the
prescribed requirements, to wit, that it be filed on
time and by a proper party asserting title to the
office also claimed by the respondent. Acting
thereon, we hold that Docena has proved his
right to the disputed office and could not be
legally replaced by Alar.
The Court will make no award of damages, there
being no sufficient proof to overcome the
presumption that the respondents have acted in
good faith albeit erroneously. Nevertheless, the
petitioner is entitled to the payment of the
salaries and other benefits appurtenant to the
office of a Member of the Sangguniang

Panlalawigan of Eastern Samar, from the time of
his assumption of office and until he is actually
admitted or reinstated.
WHEREFORE, the petition is GRANTED. The
petitioner is DECLARED the lawfully appointed
member of the Sangguniang Panlalawigan of
Eastern Samar, which is hereby DIRECTED to
admit or reinstate him as such. The temporary
restraining order dated January 31, 1991, is
LIFTED. No costs.
SO ORDERED.

SUPREME COURT
Manila
districts of the Province of Albay were elected

and proclaimed as members of the Sangguniang
Panlalawigan, to wit:
Baclao 17,545
votes
EN BANC
(Rollo, pp. 27-28)

FIRST DISTRICT
G.R. No. 109005 January 10, 1994

JUAN D. VICTORIA, petitioner,
vs.
THE COMMISSION ON ELECTIONS and
JESUS JAMES CALISIN, respondents.
Juan D. Victoria for himself and in his own
behalf.
The Solicitor General for public respondent.
Name No. of Votes

Garnered
1. Jesus James
Calisin 28,335
votes
2. Vicente Go,
Sr. 17,937
votes
3. Clenio
Cabredo 16,705
votes
SECOND DISTRICT
QUIASON, J.:
This is a petition for certiorari, under Rule 65 of
the Revised Rules of Court in relation to section
2, Article IX of the Constitution, to set aside (a)
the Resolution of the Commission on Elections
(COMELEC) dated January 22, 1993, which
certified respondent James Calisin as the
highest ranking member of the Sangguniang
Panlalawigan of the Province of Albay and (b) its
Resolution dated February 22, 1993, which
denied the motion for reconsideration of
petitioner.
The issue in the case at bench is the ranking of
the members of the Sangguniang Panlalawigan
of the Province of Albay for purposes of
succession.
In the May 11, 1992 Elections, the following
candidates from the first, second and third
1. Juan D.
Victoria 32,918
votes
2. Jesus
Marcellana
26,030 votes
3. Lorenzo
Reyeg 23,887
votes
THIRD DISTRICT
1. Ramon
Fernandez, Jr.
19,315 votes
2. Masikap
Fontanilla
19,241 votes
3. Arturo Osia
17,778 votes
4. Nemesio
Due to the suspension of Governor Romeo

Salalima of the Province of Albay, Vice-Governor
Danilo Azana automatically assumed the powers
and functions of the governor, leaving vacant his
post as vice-governor. Under the law, Azana's
position as vice-governor should be occupied by
the highest ranking Sangguniang member, a
post being contested by petitioner and private
respondent.
In answer to private respondent's petition for his
declaration as senior Sanggunian member for
the Province of Albay, the COMELEC issued a
resolution dated January 22, 1993, certifying him
as first in the order of ranking with petitioner
herein as second ranking member. The
COMELEC based its certification on the number
of votes obtained by the Sanggunian members
in relation to the number of registered voters in
the district.
Thus, on February 15, 1993, Secretary Rafael
M. Alunan III of the Department of Interior and
Local Government designated private
respondent as acting Vice-Governor of the
province.
Petitioner filed a motion for reconsideration of
the COMELEC resolution which was denied on
February 22, 1993.
Hence, this petition.
Petitioner claims that the ranking of the
Sanggunian members should not only be based
on the number of votes obtained in relation to
the total number of registered voters, but also on
the number of voters in the district who actually
voted therein. He further argues that a district

may have a large number of registered voters
but only a few actually voted, in which case the
winning candidate would register a low
percentage of the number of votes obtained.
Conversely, a district may have a smaller
number of registered voters but may have a big
voters' turn-out, in which case the winning
candidate would get a higher percentage of the
votes. Applying his formula, petitioner would
come out to be the highest ranking Sanggunian
member.
Petitioner gives the following illustration:
1. for private respondent.
107,216 (actually voted)
x
28,335 (votes obtained)
= 23.40%
129,793 (registered
voters)
(Rollo, pp. 24, 25 and
30)
2. for petitioner
121,423 (actually voted)
x
32,918 (votes obtained)
= 25.84%
154,665 (registered
voters)
(Rollo, p. 9).
Vice-Governor, Mayor, and

Vice-Mayor. (a) If a
permanent vacancy occurs in
the office of the governor or
mayor, the vice-governor or
vice-mayor concerned shall
become governor or mayor. If a
permanent vacancy occurs in
the offices of the governor, vicegovernor, mayor, or vice-mayor,
the highest ranking Sanggunian
member or, in case of his
permanent inability, the second
highest ranking Sanggunian
member, shall become the
governor, vice-governor, mayor
or vice-mayor, as the case may
be. Subsequent vacancies in
the said office shall be filled
automatically by the other
Sanggunian members according
to their ranking as defined
herein.
xxx xxx xxx
For purposes of succession as
provided in this Chapter, ranking
in the Sanggunian shall be
determined on the basis of the
proportion of votes obtained by
each winning candidate to the
total number of registered
voters in each district in the
immediately preceding local
election. (Emphasis ours)
The COMELEC came up with the following
ranking of the top three Sanggunian members:
We are not persuaded.

The Local Government provides:
Sec. 44. Permanent Vacancies
in the Office of the Governor,
NAME District Registered Votes

Percent Rank
of Elected Voters Obtained
Dist'n
Candidates
ALBAY
CALISIN,
JESUS JAMES B. 1st 130,085
28,335 21.78 1st
VICTORIA,
JUAN D. 2nd 155.318 32,918
21.19 2nd
MARCELLANA
JESUS, M. 2nd 155.318 26,030
16.76 3rd
(Rollo, p. 14)
The law is clear that the ranking in the
Sanggunian shall be determined on the basis of
the proportion of the votes obtained by each
winning candidate of the total number of
registered voters who actually voted. In such a
case, the Court has no recourse but to merely
apply the law. The courts may not speculate as
to the probable intent of the legislature apart
from the words (Pascual v. Pascual-Bautista,
207 SCRA 561 [1992]).
In the case of Globe-Mackay Cable and Radio
Corporation v. National Labor Relations
Commission, 206 SCRA 710 (1992), we held
that:
. . . Under the principles of
statutory construction, if a statue
is clear, plain and free from
ambiguity, it must be given it
literal meaning and applied
without attempted interpretation.
This plain-meaning rule or

verba legis derived from the
maxim, index animi sermo
est (speech is the index of
intention) rests on the valid
presumption that the words
employed by the legislature in a
statute correctly express its
intent or will and preclude the
court from construing it
differently. The legislature is
presumed to know the meaning
of the words, to have used
words advisely, and to have
expressed its intent by the use
of such words as are found in
the statute. Verba legis non est
recedendum, or from the words
of a statute there should be no
departure. . .
Petitioner's contention is therefore untenable
considering the clear mandate of the law, which
leaves no room for other interpretation but it
must very well be addressed to the legislative
branch and not to this Court which has no power
to change the law.
Considering the foregoing, we find no grave
abuse of discretion on the part of the COMELEC
in issuing the Resolution dated January 22,
1993.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

SUPREME COURT
Baguio City
EN BANC
G.R. No. 116763 April 19, 1996

GOVERNOR RODOLFO C. FARIAS and AL
NACINO, petitioners,
vs.
MAYOR ANGELO N. BARBA, VICE MAYOR
MANUEL S. HERNANDO and EDWARD
PALAFOX, respondents.
MENDOZA, J.:p
The question in this case is: In case of a
permanent vacancy in the Sangguniang Bayan
caused by the cessation from office of a member
who does not belong to any political party, who
can appoint the replacement and in accordance
with what procedure?
This case arose from the following facts:
Carlito B. Domingo was a member of the
Sangguniang Bayan of San Nicolas, Ilocos
Norte. On March 24, 1994, he resigned after
going without leave to the United States.
To fill the vacancy created by his resignation, the
mayor, respondent Angelo M. Barba,
recommended to the Governor of the province,
respondent Rodolfo C. Farias, the appointment
of respondent Edward Palafox.
A similar recommendation for the appointment of
Edward Palafox was made by the Sangguniang
Bayan of San Nicolas but the recommendation

was made to Mayor Barba. The resolution,
containing the recommendation, was submitted
to the Sangguniang Panlalawigan of Ilocos
Norte purportedly in compliance with 56 of the
Local Government Code (R.A. No. 7160). 1
The Sangguniang Panlalawigan, purporting to
act under this provision of the Local Government
Code, disapproved the resolution "for the reason
that the authority and power to appoint
Sangguniang Bayan members are lodged in the
Governor, and therefore, the Resolution should
be addressed to the Provincial Governor."
Accordingly, the Sangguniang Panlalawigan
recommended to the Governor the appointment
of petitioner Al Nacino, vice Carlito Domingo, as
member of the Sangguniang Bayan of San
Nicolas. On June 8, 1994, petitioner Governor
appointed petitioner Nacino and swore him in
office that same day.
On the other hand, respondent Mayor Barba
appointed respondent Edward Palafox to the
same position on June 8, 1994. The next day,
June 9, 1994, respondent Palafox took his oath
as member of the Sangguniang Bayan.
On June 14, 1994, petitioners filed with the
Regional Trial Court of Ilocos Norte a petition
for quo warranto and prohibition, entitled
"Governor Rodolfo C. Farias and Al Nacino v.
Mayor Angelo M. Barba, Vice Mayor Manuel S.
Hernando, Jr. and Edward D. Palafox."
On July 8, 1994 the trial court rendered its
decision, upholding the appointment of
respondent Palafox by respondent Mayor Barba.
It held:
Under the facts and
circumstances as shown clearly
in the case, there is no doubt
the law that is applicable is sub-
section "C" of Section 45 of

Republic Act No. 7160
otherwise known as the Local
Government Code of 1991
which provides:
In case the permanent
vacancy is caused by a
Sanggunian Member
who does not belong to
any political party, the
Local Chief Executive
shall upon the
recommendation of the
Sanggunian concerned,
appoint a qualified
person to fill the
vacancy.
. . . Inasmuch as the permanent
vacancy is in the Sanggunian
Bayan of San Nicolas, Ilocos
Norte, it is the Sanggunian
concerned referred to in the law
which recommends the
appointment to fill the vacancy. .
. This being so, the Local Chief
Executive referred to in subsection "C" of Section 45 of
Republic Act No. 7160 is the
Municipal Mayor of San Nicolas,
Ilocos Norte.
It cannot be denied that the
Governor has the authority to
appoint a qualified person to fill
the vacancy in the Sanggunian
Bayan caused by resignation of
a member thereof as that is
vested in him or her by the
Provision of No. 2, Sec. 45 of
Republic Act No. 7160. To the
mind of the court that authority
is not vested in him or her
where the permanent vacancy is
caused by a Sanggunian
Member who does not belong to
any political party as that
authority is specifically vested
upon the Local Chief Executive
Sanggunian concerned as per
sub-section "C" of Section 45 of
the same Republic Act No.
7160. Under No. 2 of Sec. 45
aforementioned the law does
not require a recommendation
for the appointment of
Sanggunian Bayan Member to
fill a permanent vacancy either
from the Sangguniang
Panlalawigan or from the
Sanggunian Bayan. . . As such
there can be no other person
referred to as the Local Chief
Executive having the authority
to appoint other than the
Municipal Mayor of the
Municipality of the Sanggunian
Bayan where there is
permanent vacancy. This can be
clearly inferred from the two (2)
provisions of the law (No. 2 and
sub-section C of Sec. 45 of Rep.
Act No. 7160). While No. 2 of
Sec. 45 specifically vests the
power to appoint in the
Governor, sub-sec. C of Sec.
45, specifically vests the power
to appoint in the Local Chief
Executive. The Local Chief
Executive specifically mentioned
in said sub-section C of Sec. 45
is not the Governor, for there
would have been no need for
the law making body to have
specifically stated in the law if it
had intended that the Governor
is that one and the same Local
Chief Executive vested with
power to appoint.
Petitioners filed a motion for reconsideration, but

this was denied by the trial court on August 18,
1994. Hence this petition for review on certiorari.
Petitioners contend that the power to fill a
vacancy in the Sangguniang Bayan, which is
created as a result of the cessation from office of
a member who does not belong to a political
party, is vested in the provincial governor upon
recommendation of the Sangguniang
Panlalawigan.
The statutory provision in question is 45 of the
Local Government Code of 1991 (R.A. No .
7160) which reads:
45. Permanent Vacancies in the
Sanggunian.
(a) Permanent vacancies in the
sanggunian where automatic
successions provided above do not
apply shall be filled by appointment in
the following manner:
(1) The President, through the
Executive Secretary, in the case
of the sangguniang
panlalawigan and the
sangguniang panlungsod of
highly urbanized cities and
independent component cities;
(2) The governor, in the case of
the sangguniang panlungsod of
component cities and the
sangguniang bayan;
(3) The city or municipal mayor,
in the case of the sangguniang
barangay, upon
sangguniang barangay
concerned.
(b) Except for the sangguniang

barangay, only the nominee of
the political party under which
the sanggunian member
concerned had been elected
and whose elevation to the
position next higher in rank
created the last vacancy in the
sanggunian shall be appointed
in the manner hereinabove
provided. The appointee shall
come from the same political
party as that of the sanggunian
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
sanggunian member who does
not belong to any political party,
the local chief executive shall,
sanggunian concerned, appoint
a qualified person to fill the
vacancy.
(d) In case of vacancy in the

representation of the youth and
the barangay in the sanggunian,
said vacancy shall be filled
automatically by the official next
in rank of the organization
concerned.
[1] Since the vacancy in this case was created
by a Sanggunian member who did not belong to
any political party, the specific provision involved
is par. (c), to wit:
(c) In case the permanent
sanggunian member who does
not belong to any political party,
the local chief executive shall,
sanggunian concerned, appoint
a qualified person to fill the
vacancy.
But who is the "local chief executive" referred?
And which is the "sanggunian concerned"? With
respect to the first ("local chief executive"),
petitioners look to 45(a) for the answer and say
that it is the governor, with respect to vacancies
in the Sangguniang Panlungsod of component
cities and Sangguniang Bayan, or the mayor
with respect to vacancies in the Sangguniang
Barangay.
In support of this view, they cite, first of all, the
following provision of the former Local
Government Code (B.P. Blg. 337):
50. Permanent Vacancies in
the Local Sanggunians. In
case of permanent vacancy in
thesangguniang panlalawigan,
sangguniang panlungsod,
sangguniang
bayan, or sangguniang
barangay, the President of the
Philippines, upon
recommendation of the Minister
of Local Government, shall
appoint a qualified person to fill
the vacancy in the sangguniang
panlalawigan and
the sangguniang panglungsod;
the governor, in the case
of sangguniang
bayan members; or the city or
municipal mayor, in the case
of sangguniang
barangay members. Except for
the sangguniang barangay, the
appointee shall come from the
political party of
the sanggunian member who
caused the vacancy, and shall
serve the unexpired term of the
vacant office.
and, second, the following provision of
the present Code:
63. Preventive Suspension.
(a) Preventive suspension may
be imposed:
(1) By the President, if the
respondent is an elective official
of a province, a highly urbanized
or an independent component
city;
(2) By the governor, if the
of a component city or
municipality; or
(3) By the mayor, if the
of the barangay. . . .
Reference to these provisions is appropriate not
for the reason advanced by petitioners, i.e., that
the power to appoint implies the power to

remove, but because implicit in these provisions
is a policy to vest in the President, the governor
and the mayor in descending order the exercise
of an executive power whether to appoint in
order to fill vacancies in local councils or to
suspend local officials. These provisions are
in pari materia with 45.
To be sure the President of the Philippines can
not be referred to as "local chief executive" in
45(c) but it is apparent that the phrase is a
misnomer and that the choice of this phrase was
simply dictated by the need to avoid, for stylistic
reasons, interminably repeating the officials on
whom the power to appoint is conferred.
Perhaps "authorities concerned" would have
been a more accurate generic phrase to use.
For that matter, to follow private respondents'
interpretation would be to run into a similar, if not
greater, difficulty. For 45(a) (3) vests the power
to fill vacancies in the Sangguniang Barangay in
the mayor but the local chief executive of a
barangay is not the mayor. It is the punong
barangay. Yet "local chief executive" cannot be
applied to the punong barangay without
rendering 45(a) (3) meaningless. For then
there would never be any occasion when the
mayor, under this provision, can appoint a
replacement for a member of the Sangguniang
Bayan who for one reason or another ceases
from office for reason other than the expiration of
his term. And why should a vacancy in the
Sangguniang Panlalawigan be filled by a
different authority (the governor, according to
this view) simply because the vacancy was
created by a member who does not belong to a
political party when, according to 45(a) (1), a
vacancy created by a member who belongs to a
political party must be filled by appointment by
the President of the Philippines?
With reference to the phrase "sangguniang
concerned" in 45(c), petitioners say it means,
with respect to a vacancy in the Sangguniang
Bayan, the Sangguniang Panlalawigan. Their

reason is that under 61 of the Code, the power
to investigate complaints against elective
municipal officials is vested in the Sangguniang
Panlalawigan:
61. Form and Filing of
Administrative Complaints A
verified complaint against any
erring local elective official shall
be prepared as follows:
(a) A complaint against any
elective official of a province, a
highly urbanized city, an
independent component city or
a component city shall be filed
before the Office of the
President;
(b) A complaint against any
elective official of a municipality
shall be filed before the
sanggunian panlalawigan
whose decision may be
appealed to the Office of the
President;
(c) A complaint against any
elective barangay official shall
be filed before the sangguniang
panlungsod or sangguniang
bayan concerned whose
decision shall be final and
executory.
This interpretation is inconsistent with the fact
that in filling vacancies in the Sangguniang
Barangay it is the Sangguniang Barangay which
under 45(a) (3) recommends the appointee, not
the Sangguniang Panlungsod or the
Sangguniang Bayan, which would be the case if
petitioners' view were to prevail.
We think that the phrase "sanggunian

concerned" in 45(c) should more properly be
understood as referring to the Sanggunian in
which the vacancy is created. This is in keeping
with the policy implicit in 45(a) (3).
In other words, with the exception of the
Sangguniang Barangay pars. (a) and (b) must
be read as providing for the filling of vacancies
in the various Sanggunians when these
vacancies are created as a result of the
cessation from office (other than expiration of
term) of members who belong to political parties.
On the other hand, 45(c) must be understood
as providing for the filling of vacancies created
by members who do not belong to any political
party. Consequently, 45 must be construed to
mean that
I. Where the Permanent Vacancy is
Caused by a Sanggunian Member
Belonging to a Political Party
A. Sangguniang Panlalawigan
and Sangguniang Panlungsod
of highly urbanized cities and
independent component cities
The President, through the
Executive Secretary, upon the
nomination and certification of
the political party to which the
vacancy belonged, as provided
in 45 (b).
B. Sangguniang Panlungsod of
component cities and
Sangguniang Bayan The
Governor upon the nomination
and certification of the political
party to which the member who
caused the vacancy belonged,
as provided in 45 (b).
II. Where the Vacancy is Caused by a

Sanggunian Member Not Belonging to a
Political Party
A. Sangguniang Panlalawigan
and Sangguniang Panlungsod
of highly urbanized and
independent component cites
The President, through the
Executive Secretary, upon
Sangguniang Panlalawigan or
Sangguniang Panlungsod as
the case may be
B. Sangguniang Panlungsod of
component cities and
Sangguniang Bayan The
Governor upon recommendation
of the Sangguniang Panlungsod
or Sangguniang Bayan as the
case may be
III. Where the Vacancy is Caused by a
Member of the Sangguniang Barangay
City or Municipal Mayor upon
recommendation of the Sangguniang
Barangay
There is only one rule governing appointments
to the Sangguniang Barangay. Any vacancy
therein caused by the cessation from office of a
member must be made by the mayor upon the
recommendation of that Sanggunian. The
reason is that members of the Sangguniang
Barangay are not allowed to have party
affiliations.
Indeed there is no reason for supposing that
those who drafted 45 intended to make the
manner of filling vacancies in the Sanggunians,
created by members who do not belong to any
political party, different from the manner of filling
such vacancies when created by members who
belong to political party or parties. The provision
for the first must approximate the provision for

the second situation. Any difference in procedure
must be limited to the fact that in the case of
vacancies caused by those who have political
affiliations there is a party which can nominate a
replacement while there is none in the case of
those who have no political affiliation.
Accordingly, where there is no political party to
make a nomination, the Sanggunian, where the
vacancy occurs, must be considered the
appropriate authority for making the
recommendation, by analogy to vacancies
created in the Sangguniang Barangay whose
members are by law prohibited from having any
party affiliation.
[2] Having determined that appointments in case
of vacancies caused by Sanggunian members
who do not belong to any political party must be
made in accordance with the "recommendation"
of the Sanggunians concerned where the
vacancies occur, the next question is: Is the
appointing authority limited to the appointment of
those "recommended" to him? We think an
affirmative answer must be given to the
question. The appointing authority is not bound
to appoint anyone recommended to him by the
Sanggunian concerned. The power of
appointment is a discretionary power. On the
other hand, neither is the appointing power
vested with so large a discretion that he can
disregard the recommendation of the
Sanggunian concerned, Since the
recommendation takes the place of nomination
by political party, the recommendation must
likewise be considered a condition sine qua
non for the validity of the appointment, by
analogy to the provision of 45(b).
[3] The upshot of this is that in the case at bar,
since neither petitioner Al Nacino nor respondent
Edward Palafox was appointed in the manner
indicated in the preceding discussion, neither is
entitled to the seat in the Sangguniang Bayan of
San Nicolas, Ilocos Norte which was vacated by
member Carlito B. Domingo. For while petitioner
Al Nacino was appointed by the provincial

governor, he was not recommended by the
Sangguniang Bayan of San Nicolas. On the
other hand, respondent Edward Palafox was
recommended by the Sangguniang Bayan but it
was the mayor and not the provincial governor
who appointed him.
WHEREFORE, the decision of the Regional Trial
Court of Ilocos Norte, insofar as it dismisses
petitioners' action for quo warranto and
prohibition, is AFFIRMED, but for different
reasons from those given by the trial court in its
decision.
SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. 134213 July 20, 1999

ROMEO J. GAMBOA, JR., petitioner,
vs.
MARCELO AGUIRRE, JR., and JUAN Y.
ARANETA, respondents.
YNARES-SANTIAGO, J.:
The query herein is purely legal. May an
incumbent Vice-Governor, while concurrently the
Acting Governor, continue to preside over the
sessions of the Sangguniang
Panlalawigan (SP)?
The facts are not in dispute.1wphi1.nt
In the 1995 elections, Rafael Coscolluela,
petitioner Romeo J. Gamboa, Jr. and
respondents Marcelo Aguirre, Jr., and Juan Y.
Araneta were elected Negros Occidental
Governor, Vice-Governor and SP members,
respectively. Sometime in August of 1995, the
governor designated petitioner as Acting
Governor for the duration of the former's official
trip abroad until his return. When the SP held its
regular session on September 6, 1995,
respondents questioned the authority of
petitioner to preside therein in view of his
designation as Acting Governor and asked him
to vacate the Chair. The latter, however, refused
to do so. In another session, seven (7) members
of the SP voted to allow petitioner to continue
presiding while four (4) others voted against with

one (1) abstention. On September 22, 1995,
respondents filed before the lower court a
petition for declatory relief and prohibition. In the
meantime, on October 2, 1995, the Governor reassumed his office. Later, the trial court
rendered a decision and declared petitioner as
"temporarily legally incapacitated to preside over
the sessions of the SP during the period that he
is the Acting Governor." 1 Aggrieved, petitioner
filed a petition for review raising the issue earlier
mentioned. Although this case is dismissible for
having become moot and academic considering
the expiration in 1998 of the terms of office of
the local officials involved herein, the Court
nonetheless proceeds to resolve this common
controversy but novel issue under the existing
laws on local government.
Sec. 49(a) and 466(a) (1) of Republic Act (R.A.)
No. 7160 otherwise known as the Local
Government Code of 1991, provide that the
Vice-Governor shall be the presiding officer of
the SP. 2 In addition to such function, he
"become(s)" 3 the Governor and
"assume(s)" 4 the higher office for the unexpired
term of his predecessor, in case of "permanent
vacancy" therein. When the vacancy, however,
is merely temporary, the Vice-Governor "shall
automatically exercise the powers (subject to
certain limitations) and perform the duties and
functions" 5 of the Governor. It may be noted that
the code provides only for modes of succession
in case of permanent vacancy in the office of the
Governor and the Vice-Governor (whether single
or simultaneously) as well as in case of a
temporary vacancy in the office of the Governor.
But, no such contingency is provided in case of
temporary vacancy in the office of the ViceGovernor, just like the 1983 Local Government
Code. 6
It is correct that when the Vice-Governor
exercises the "powers and duties" of the Office
of the Governor, he does not assume the latter
office. He only "acts" as the Governor but does

not "become" the Governor. His assumption of
the powers, duties and functions of the
provincial Chief Executive does not create a
permanent vacuum or vacancy in his position as
the Vice-Governor. Necessarily, he does not
relinquish nor abandon his position and title as
Vice-Governor by merely becoming an Acting
Governor, (not Governor) or by merely
exercising the powers and duties of the higher
officer. But the problem is, while in such
capacity, does he temporarily relinquish the
powers, functions, duties and responsibilities of
the Vice-Governor, including the power to
preside over the sessions of the SP?
Sad to say the new Local Government Code is
silent on this matter, yet this query should be
answered in the positive. A Vice-Governor who
is concurrently an Acting Governor is actually a
quasi-Governor. This means, that for purposes
of exercising his legislative prerogatives and
powers, he is deemed as a non-member of the
SP for the time being. By tradition, the offices of
the provincial Governor and Vice-Governor are
essentially executive in nature, whereas plain
members of the provincial board perform
functions partaking of a legislative character.
This is because the authority vested by law in
the provincial boards involves primarily a
delegation of some legislative powers of
Congress. 7 Unlike under the old Code, where
the Governor is not only the provincial Chief
Executive, 8 but also the presiding officer of the
local legislative body, 9 the new Code delineated
the union of the executive-legislative powers in
the provincial, city and municipal levels except in
the Barangay. Under R.A. 7160, the Governor
was deprived of the power to preside over the
SP and is no longer considered a member
thereof. 10 This is clear from the law, when it
provides that "local legislative power shall be
vested in the
SP," 11 which is "the legislative body of the
province," and enumerates therein membership

consisting of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral
representatives, and
4.) those ex-officio members, namely:
a.) president of the provincial
chapter of the liga ng mga
barangay,
b.) president of the
panlalawigang pederasyon ng
mga sangguniang kabataan,
c.) president of the provincial
federation of sangguniang
members of municipalities and
component cities. 12
None being included in the enumeration, the
Governor is deemed excluded applying the rule
in legal hermeneutics that when the law
enumerates, the law necessarily excludes. On
the contrary, local executive power in the
province is vested alone in the
Governor. 13 Consequently, the union of
legislative-executive powers in the office of the
local chief executive under the former Code has
been disbanded, so that either department now
comprises different and non-intermingling official
personalities with the end in view of ensuring a
better delivery of public service and provide a
system of check and balance between the two.
It has been held that if a Mayor who is out of the
contrary is considered "effectively absent", the
Vice-Mayor should discharge the duties of the
mayor during the latter's absence. 14 This
doctrine should equally apply to the Vice-
Governor since he is similarly situated as the

Vice-Mayor. Although it is difficult to lay down a
definite rule as to what constitutes absence, yet
this term should be reasonably construed to
mean "effective" absence, 15 that is, one that
renders the officer concerned powerless, for the
time being, to discharge the powers and
prerogatives of his office. 16 There is no vacancy
whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a
vacancy when there is no person lawfully
authorized to assume and exercise at present
the duties of the office. 17 By virtue of the
foregoing definition, it can be said that the
designation, appointment or assumption of the
Vice-Governor as the Acting Governor creates a
corresponding temporary vacancy in the office of
the Vice-Governor during such contingency.
Considering the silence of the law on the matter,
the mode of succession provided for permanent
vacancies, under the new Code, in the office of
the Vice-Governor may likewise be observed in
the event of temporary vacancy occurring in the
same office. 18This is so because in the eyes of
the law, the office to which he was elected was
left barren of a legally qualified person to
exercise the duties of the office of the ViceGovernor.
Being the Acting Governor, the Vice-Governor
cannot continue to simultaneously exercise the
duties of the latter office, since the nature of the
duties of the provincial Governor call for a fulltime occupant to discharge them. 19Such is not
only consistent with but also appears to be the
clear rationale of the new Code wherein the
policy of performing dual functions in both offices
has already been abandoned. To repeat, the
creation of a temporary vacancy in the office of
the Governor creates a corresponding
temporary vacancy in the office of the ViceGovernor whenever the latter acts as Governor
by virtue of such temporary vacancy. This event
constitutes an "inability" on the part of the
regular presiding officer (Vice Governor) to
preside during the SP sessions, which thus calls
for the operation of the remedy set in Article

49(b) of the Local Government Code
concerning the election of a temporary presiding
officer. The continuity of the Acting Governor's
(Vice Governor) powers as presiding officer of
the SP is suspended so long as he is in such
capacity. Under Section 49(b), "(i)n the event of
the inability of the regular presiding officer to
preside at the sanggunian session, the members
present and constituting a quorum shall elect
from among themselves a temporary presiding
officer." 20
WHEREFORE, the petition is DENIED for lack
of merit.
SO ORDERED.
SUPREME COURT
Baguio City
Baltazar Aquino
Vice-Mayor
8. Rolando Lalas
FIRST DIVISION
Elected as members of the Sangguniang Bayan
ranked according to the highest number of votes
obtained were the following councilors:
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.
1. Danny B. Tamayo
2. Rolando S. Soriano
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.
3. Leopoldo C. Biagtan
4. Florentino Z. Lalas
5. Mamerto Eden, Jr.

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
6. Victorio C. Lalangan
7. Judy A. Pascual
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 ViceMayor Baltazar Aquino succeeded him.
Political
Party
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
REFORMA-LM
belonged to the REFORMA-LM political party.
Since a vacancy occurred in the Sangguniang
Bayan by the elevation of petitioner Tamayo to
REFORMA-LM
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
REFORMA-LM
same political party as that of petitioner Tamayo.
Private respondents filed Civil Case No. 9912958-D to nullify the appointment of petitioner
REFORMA-LM
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,
REFORMA-LM
private respondents filed a Petition for Review
on Certiorari with this Court.
In a Resolution dated August 25, 1999, this
LAKAS-NUCD-KAMPI
Court referred the case to the Court of Appeals
due to the hierarchy of courts.
Private respondents argued before the Court of
REFORMA-LM
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
LAKA
was also a member of the Sanggunian. Thus,

the appointee must come from said former vicemayors political party, in this case, the LakasNUCD-Kampi.
Aggrieved by the decision of the Court of

Appeals, petitioners brought the instant petition.
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.
Sections 44 and 45 of RA 7160 governing

vacancies and succession are quoted
hereunder:
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 highest-ranking
member and that vacated by the second
highest-ranking member was succeeded by the
third highest-ranking member, and so forth. And
the last vacancy created was the position of the
lowest ranking-member of the Sanggunian, that
is, the eighth position occupied by Rolando
Lalas. The Court of Appeals then concluded that
it was the appointment of the eighth councilor,
who was Rolando Lalas to the number seven
position which created the "last vacancy;"
therefore, the person to be appointed to the
vacant position should come form the same
political party to which Rolando Lalas belonged,
which was the Lakas-NUCD-Kampi.1wphi1.nt
We give due course to the petition.
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 highestranking 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 highest-ranking
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
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
Vice-Mayor, a vacancy occurred in the
Sanggunian that should be filled up with
someone who should belong to the political
party of petitioner Tamayo. Otherwise,
REFORMA-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.1wphi1.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.

SUPREME COURT
Manila
EN BANC
G.R. No. 195229
October 9, 2012
EFREN RACEL ARA TEA, Petitioner,

vs.
COMMISSiON ON ELECTIONS and ESTELA
D. ANTlPOLO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a special civil action
for certiorari1 seeking to review and nullify the
Resolution2 dated 2 February 2011 and the
Order3 dated 12 January 2011 of the
Commission on Elections (COMELEC) En Banc
in Dra. Sigrid S. Rodolfo v. Romeo D.
Lonzanida, docketed as SPA No. 09-158 (DC).
The petition asserts that the COMELEC issued
the Resolution and Order with grave abuse of
discretion amounting to lack or excess of
jurisdiction.
The Facts
Romeo D. Lonzanida (Lonzanida) and Estela D.
Antipolo (Antipolo) were candidates for Mayor of
San Antonio, Zambales in the May 2010
National and Local Elections. Lonzanida filed his
certificate of candidacy on 1 December
2009.4 On 8 December 2009, Dra. Sigrid S.
Rodolfo (Rodolfo) filed a petition under Section
78 of the Omnibus Election Code to disqualify
Lonzanida and to deny due course or to cancel
Lonzanidas certificate of candidacy on the
ground that Lonzanida was elected, and had
served, as mayor of San Antonio, Zambales for
four (4) consecutive terms immediately prior to

the term for the May 2010 elections. Rodolfo
asserted that Lonzanida made a false material
representation in his certificate of candidacy
when Lonzanida certified under oath that he was
eligible for the office he sought election. Section
8, Article X of the 1987 Constitution5 and Section
43(b) of the Local Government Code6 both
prohibit a local elective official from being
elected and serving for more than three
consecutive terms for the same position.
The COMELEC Second Division rendered a
Resolution7 on 18 February 2010 cancelling
Lonzanidas certificate of candidacy. Pertinent
portions of the 18 February 2010 Resolution
read:
Respondent Lonzanida never denied having
held the office of mayor of San Antonio,
Zambales for more than nine consecutive years.
Instead he raised arguments to forestall or
dismiss the petition on the grounds other than
the main issue itself. We find such arguments as
wanting. Respondent Lonzanida, for holding the
office of mayor for more than three consecutive
terms, went against the three-term limit rule;
therefore, he could not be allowed to run anew
in the 2010 elections. It is time to infuse new
blood in the political arena of San Antonio.
WHEREFORE, premises considered, the instant
petition is hereby GRANTED. The Certificate of
Candidacy of Respondent Romeo D. Lonzanida
for the position of mayor in the municipality of
San Antonio, Zambales is hereby CANCELLED.
His name is hereby ordered STRICKEN OFF the
list of Official Candidates for the position of
Mayor of San Antonio, Zambales in May 10,
2010 elections.
SO ORDERED.8
Lonzanidas motion for reconsideration before
the COMELEC En Banc remained pending
during the May 2010 elections. Lonzanida and

Efren Racel Aratea (Aratea) garnered the
highest number of votes and were respectively
proclaimed Mayor and Vice-Mayor.
Aratea took his oath of office as Acting Mayor
before Regional Trial Court (RTC) Judge
Raymond C. Viray of Branch 75, Olongapo City
on 5 July 2010.9 On the same date, Aratea wrote
the Department of Interior and Local
Government (DILG) and requested for an
opinion on whether, as Vice-Mayor, he was
legally required to assume the Office of the
Mayor in view of Lonzanidas disqualification.
DILG Legal Opinion No. 117, S. 201010 stated
that Lonzanida was disqualified to hold office by
reason of his criminal conviction. As a
consequence of Lonzanidas disqualification, the
Office of the Mayor was deemed permanently
vacant. Thus, Aratea should assume the Office
of the Mayor in an acting capacity without
prejudice to the COMELECs resolution of
Lonzanidas motion for reconsideration. In
another letter dated 6 August 2010, Aratea
requested the DILG to allow him to take the oath
of office as Mayor of San Antonio, Zambales. In
his response dated 24 August 2010, then
Secretary Jesse M. Robredo allowed Aratea to
take an oath of office as "the permanent
Municipal Mayor of San Antonio, Zambales
without prejudice however to the outcome of the
cases pending before the [COMELEC]."11
On 11 August 2010, the COMELEC En Banc
issued a Resolution12 disqualifying Lonzanida
from running for Mayor in the May 2010
elections. The COMELEC En Bancs resolution
was based on two grounds: first, Lonzanida had
been elected and had served as Mayor for more
than three consecutive terms without
interruption; and second, Lonzanida had been
convicted by final judgment of ten (10) counts of
falsification under the Revised Penal Code.
Lonzanida was sentenced for each count of
falsification to imprisonment of four (4) years
and one (1) day of prisin correccional as
minimum, to eight (8) years and one (1) day

of prisin mayor as maximum. The judgment of
conviction became final on 23 October 2009 in
the Decision of this Court in Lonzanida v.
People,13 before Lonzanida filed his certificate of
candidacy on 1 December 2009. Pertinent
portions of the 11 August 2010 Resolution read:
mandated by Section 4416 of the Local

Government Code to succeed as Mayor.
Prescinding from the foregoing premises,

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

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

Motion for Reconsideration is hereby DENIED.
SO ORDERED.14
On 25 August 2010, Antipolo filed a Motion for
Leave to Intervene and to Admit Attached
Petition-in-Intervention.15 She claimed her right
to be proclaimed as Mayor of San Antonio,
Zambales because Lonzanida ceased to be a
candidate when the COMELEC Second
Division, through its 18 February 2010
Resolution, ordered the cancellation of his
certificate of candidacy and the striking out of his
name from the list of official candidates for the
position of Mayor of San Antonio, Zambales in
the May 2010 elections.
In his Comment filed on 26 January 2011, Aratea
asserted that Antipolo, as the candidate who
received the second highest number of votes,
could not be proclaimed as the winning
candidate. Since Lonzanidas disqualification
was not yet final during election day, the votes
cast in his favor could not be declared stray.
Lonzanidas subsequent disqualification resulted
in a permanent vacancy in the Office of Mayor,
and Aratea, as the duly-elected Vice-Mayor, was
issue to be resolved at this juncture is how to fill

the vacancy resulting from Lonzanidas
disqualification."18 The Resolution further stated:
The COMELECs Rulings

The COMELEC En Banc issued an Order dated
12 January 2011, stating:
1. GRANT the aforesaid Motion;

2. ADMIT the Petition-in-Intervention filed by
Antipolo;
3. REQUIRE the Respondent, ROMEO
DUMLAO LONZANIDA, as well as EFREN
RACEL ARATEA, proclaimed Vice-Mayor of San
Antonio, Zambales, to file their respective
Comments on the Petition-in- Intervention within
a non-extendible period of five (5) days from
receipt thereof;
4. SET the above-mentioned Petition-inIntervention for hearing on January 26, 2011 at
10:00 a.m. COMELEC Session Hall, 8th Floor,
Palacio del Gobernador, Intramuros, Manila.
WHEREFORE, furnish copies hereof the parties
for their information and compliance.
SO ORDERED.17
In its Resolution dated 2 February 2011, the
COMELEC En Banc no longer considered
Lonzanidas qualification as an issue: "It is
beyond cavil that Lonzanida is not eligible to
hold and discharge the functions of the Office of
the Mayor of San Antonio, Zambales. The sole
We cannot sustain the submission of Oppositor

Aratea that Intervenor Antipolo could never be
proclaimed as the duly elected Mayor of Antipolo
[sic] for being a second placer in the elections.
The teachings in the cases of Codilla vs. De
Venecia and Nazareno and Domino vs.
COMELEC, et al., while they remain sound
jurisprudence find no application in the case at
bar. What sets this case apart from the cited
jurisprudence is that the notoriety of Lonzanidas
disqualification and ineligibility to hold public
office is established both in fact and in law on
election day itself. Hence, Lonzanidas name, as
already ordered by the Commission on February
18, 2010 should have been stricken off from the
list of official candidates for Mayor of San
Antonio, Zambales.
WHEREFORE, in view of the foregoing, the
Commission hereby:
1. Declares NULL and VOID the proclamation of
respondent ROMEO D. LONZANIDA;
2. GRANTS the Petition for Intervention of
Estela D. Antipolo;
3. Orders the immediate CONSTITUTION of a
Special Municipal Board of Canvassers to
PROCLAIM Intervenor Estela D. Antipolo as the
duly elected Mayor of San Antonio, Zambales;
4. Orders Vice-Mayor Efren Racel Aratea to
cease and desist from discharging the functions
of the Office of the Mayor, and to cause a
peaceful turn-over of the said office to Antipolo
upon her proclamation; and
5. Orders the Office of the Executive Director as
well as the Regional Election Director of Region
III to cause the implementation of this Resolution
and disseminate it to the Department of Interior

and Local Government.
SO ORDERED.19
Aratea filed the present petition on 9 February
2011.
The Issues
The manner of filling up the permanent vacancy
in the Office of the Mayor of San Antonio,
Zambales is dependent upon the determination
of Lonzanidas removal. Whether Lonzanida was
disqualified under Section 68 of the Omnibus
Election Code, or made a false material
representation under Section 78 of the same
Code that resulted in his certificate of
candidacy being void ab initio, is
determinative of whether Aratea or Antipolo is
the rightful occupant to the Office of the Mayor of
San Antonio, Zambales.
The dissenting opinions reverse the
COMELECs 2 February 2011 Resolution and 12
January 2011 Order. They hold that Aratea, the
duly elected Vice-Mayor of San Antonio,
Zambales, should be declared Mayor pursuant
to the Local Government Codes rule on
succession.
The dissenting opinions make three grave
errors: first, they ignore prevailing jurisprudence
that a false representation in the certificate of
candidacy as to eligibility in the number of terms
elected and served is a material fact that is a
ground for a petition to cancel a certificate of
candidacy under Section 78; second, they
ignore that a false representation as to eligibility
to run for public office due to the fact that the
candidate suffers from perpetual special
disqualification is a material fact that is a ground
for a petition to cancel a certificate of candidacy
under Section 78; and third, they resort to a
strained statutory construction to conclude that
the violation of the three-term limit rule cannot

be a ground for cancellation of a certificate of
candidacy under Section 78, even when it is
clear and plain that violation of the three-term
limit rule is an ineligibility affecting the
qualification of a candidate to elective office.
city or province x x x; a resident therein for at

least one (1) year immediately preceding the
day of the election; and able to read and write
Filipino or any other local language or dialect.
The dissenting opinions tread on dangerous

ground when they assert that a candidates
eligibility to the office he seeks election must be
strictly construed to refer only to the details, i.e.,
age, citizenship, or residency, among others,
which the law requires him to state in his COC,
and which he must swear under oath to
possess. The dissenting opinions choose to view
a false certification of a candidates eligibility on
the three-term limit rule not as a ground for false
material representation under Section 78 but as
a ground for disqualification under Section 68 of
the same Code. This is clearly contrary to wellestablished jurisprudence.
(c) Candidates for the position of mayor or vicemayor of independent component cities,
component cities, or municipalities must be at
least twenty-one (21) years of age on election
day.
The Courts Ruling

We hold that Antipolo, the alleged "second
placer," should be proclaimed Mayor because
Lonzanidas certificate of candidacy was void ab
initio. In short, Lonzanida was never a candidate
at all. All votes for Lonzanida were stray votes.
Thus, Antipolo, the only qualified candidate,
actually garnered the highest number of votes
for the position of Mayor.
xxxx
xxxx
Sec. 40. Disqualifications. - The following
persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an
offense punishable by one (1) year or more
of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for
violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
Qualifications and Disqualifications

Section 65 of the Omnibus Election Code points
to the Local Government Code for the
qualifications of elective local officials.
Paragraphs (a) and (c) of Section 39 and
Section 40 of the Local Government Code
provide in pertinent part:
Sec. 39. Qualifications. (a) An elective local
official must be a citizen of the Philippines; a
registered voter in the barangay, municipality,
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same right
after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis
supplied)
Section 12 of the Omnibus Election Code

provides:
Sec. 12. Disqualification. Any person who has
been declared by competent authority insane or
incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion
or for any offense for which he was
sentenced to a penalty of more than eighteen
months or for a crime involving moral
turpitude, shall be disqualified to be a candidate
and to hold any office, unless he has been given
plenary pardon or granted amnesty.
The disqualifications to be a candidate herein
provided shall be deemed removed upon the
declaration by competent authority that said
insanity or incompetence had been removed or
after the expiration of a period of five years from
his service of sentence, unless within the same
period he again becomes disqualified.
(Emphasis supplied)
The grounds for disqualification for a petition
under Section 68 of the Omnibus Election Code
are specifically enumerated:
Sec. 68. Disqualifications. Any candidate who,
in an action or protest in which he is a party is
declared by final decision by a competent court
guilty of, or found by the Commission of
having (a) given money or other material
consideration to influence, induce or corrupt
the voters or public officials performing
electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent
in his election campaign an amount in
excess of that allowed by this Code; (d)
solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and
104; (e) violated any of Sections 80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been
elected, from holding the office. Any person who
is a permanent resident of or an immigrant to a
foreign country shall not be qualified to run for

any elective office under this Code, unless said
person has waived his status as permanent
resident or immigrant of a foreign country in
accordance with the residence requirement
provided for in the election laws. (Emphasis
supplied)
A petition for disqualification under Section 68
clearly refers to "the commission of prohibited
acts and possession of a permanent resident
status in a foreign country."20 All the offenses
mentioned in Section 68 refer to election
offenses under the Omnibus Election Code,
not to violations of other penal laws. There is
absolutely nothing in the language of Section 68
that would justify including violation of the threeterm limit rule, or conviction by final judgment of
the crime of falsification under the Revised
Penal Code, as one of the grounds or offenses
covered under Section 68. In Codilla, Sr. v. de
Venecia,21 this Court ruled:
[T]he jurisdiction of the COMELEC to disqualify
candidates is limited to those enumerated in
Section 68 of the Omnibus Election Code. All
other election offenses are beyond the ambit of
COMELEC jurisdiction. They are criminal and
not administrative in nature. x x x
Clearly, the violation by Lonzanida of the threeterm limit rule, or his conviction by final judgment
of the crime of falsification under the Revised
Penal Code, does not constitute a ground for a
petition under Section 68.
False Material Representation
Section 78 of the Omnibus Election Code states
that a certificate of candidacy may be denied or
cancelled when there is false material
representation of the contents of the
certificate of candidacy:
Sec. 78. Petition to deny due course to or cancel

a certificate of candidacy. A verified petition
seeking to deny due course or to cancel a
certificate of candidacy may be filed by the
person exclusively on the ground that any
material representation contained therein as
required under Section 74 hereof is false. The
petition may be filed at any time not later than
twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided,
after due notice and hearing, not later than
fifteen days before the election. (Emphasis
supplied)
Section 74 of the Omnibus Election Code
details the contents of the certificate of
candidacy:
Sec. 74. Contents of certificate of
candidacy. The certificate of candidacy
shall state that the person filing it is
announcing his candidacy for the office stated
therein and that he is eligible for said office; if
for Member of the Batasang Pambansa, the
province, including its component cities, highly
urbanized city or district or sector which he
seeks to represent; the political party to which
he belongs; civil status; his date of birth;
residence; his post office address for all election
purposes; his profession or occupation; that he
will support and defend the Constitution of the
Philippines and will maintain true faith and
allegiance thereto; that he will obey the laws,
legal orders, and decrees promulgated by the
duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign
country; that the obligation imposed by his oath
is assumed voluntarily, without mental
reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are
true to the best of his knowledge.
x x x x (Emphasis supplied)
A candidate for mayor in the 2010 local elections
was thus required to provide 12 items of
information in the certificate of

candidacy:22 name; nickname or stage name;
gender; age; place of birth; political party that
nominated the candidate; civil status;
residence/address; profession or occupation;
post office address for election purposes; locality
of which the candidate is a registered voter; and
period of residence in the Philippines before 10
May 2010. The candidate also certifies four
statements: a statement that the candidate is a
natural born or naturalized Filipino citizen; a
statement that the candidate is not a permanent
resident of, or immigrant to, a foreign country; a
statement that the candidate is eligible for
the office he seeks election; and a statement
of the candidates allegiance to the Constitution
of the Republic of the Philippines.23 The
certificate of candidacy should also be under
oath, and filed within the period prescribed by
law.
The conviction of Lonzanida by final judgment,
with the penalty of prisin mayor, disqualifies
him perpetually from holding any public
office, or from being elected to any public
office. This perpetual disqualification took
effect upon the finality of the judgment of
conviction, before Lonzanida filed his
certificate of candidacy. The pertinent
provisions of the Revised Penal Code are as
follows:
Art. 30. Effects of the penalties of perpetual or

temporary absolute disqualification. The
penalties of perpetual or temporary absolute
disqualification for public office shall produce
the following effects:
1. The deprivation of the public offices and
employments which the offender may have
held, even if conferred by popular election.
2. The deprivation of the right to vote in any
election for any popular elective office or to
be elected to such office.
3. The disqualification for the offices or
public employments and for the exercise of
any of the rights mentioned.
In case of temporary disqualification, such
disqualification as is comprised in paragraphs 2
and 3 of this article shall last during the term of
the sentence.
4. The loss of all rights to retirement pay or other
pension for any office formerly held.
temporary special disqualification. The
penalties of perpetual or temporary special
disqualification for public office, profession or
calling shall produce the following effects:
Art. 27. Reclusion perpetua. x x x

Prisin mayor and temporary disqualification.
The duration of the penalties of prisin
mayor and temporary disqualification shall
be from six years and one day to twelve
years, except when the penalty of
disqualification is imposed as an accessory
penalty, in which case, it shall be that of the
principal penalty.
xxxx
1. The deprivation of the office, employment,

profession or calling affected.
2. The disqualification for holding similar offices
or employments either perpetually or during the
term of the sentence, according to the extent of
such disqualification.
temporary special disqualification for the
exercise of the right of suffrage.
The perpetual or temporary special
disqualification for the exercise of the right
of suffrage shall deprive the offender

perpetually or during the term of the
sentence, according to the nature of said
penalty, of the right to vote in any popular
election for any public office or to be elected to
such office.Moreover, the offender shall not
be permitted to hold any public office during
the period of his disqualification.
Art. 42. Prisin mayor Its accessory penalties.
The penalty of prision mayor shall carry with it
that oftemporary absolute
disqualification and that of perpetual special
disqualification from the right of suffrage which
the offender shall suffer although pardoned as to
the principal penalty, unless the same shall have
been expressly remitted in the pardon.
(Emphasis supplied)
The penalty of prisin mayor automatically
carries with it, by operation of law,24 the
accessory penalties of temporary absolute
disqualification and perpetual special
disqualification. Under Article 30 of the
Revised Penal Code, temporary absolute
disqualification produces the effect of
"deprivation of the right to vote in any election
for any popular elective office or to be elected to
such office. The duration of temporary absolute
disqualification is the same as that of the
principal penalty of prisin mayor. On the other
hand, under Article 32 of the Revised Penal
Code, perpetual special
disqualification means that "the offender shall
not be permitted to hold any public office
during the period of his
disqualification, which is perpetually. Both
temporary absolute disqualification and
perpetual special disqualification constitute
ineligibilities to hold elective public office.A
person suffering from these ineligibilities is
ineligible to run for elective public office, and
commits a false material representation if he
states in his certificate of candidacy that he
is eligible to so run.
In Lacuna v. Abes (Lacuna),25 the Court,

speaking through Justice J.B.L. Reyes,
explained the import of the accessory penalty
of perpetual special disqualification:
On the first defense of respondent-appellee
Abes, it must be remembered that appellees
conviction of a crime penalized with prision
mayor which carried the accessory penalties of
temporary absolute disqualification and
perpetual special disqualification from the right
of suffrage (Article 42, Revised Penal Code);
and Section 99 of the Revised Election Code
disqualifies a person from voting if he had been
sentenced by final judgment to suffer one year
or more of imprisonment.
The accessory penalty of temporary absolute
disqualification disqualifies the convict for public
office and for the right to vote, such
disqualification to last only during the term of the
sentence (Article 27, paragraph 3, & Article 30,
Revised Penal Code) that, in the case of Abes,
would have expired on 13 October 1961.
But this does not hold true with respect to the
other accessory penalty of perpetual special
disqualification for the exercise of the right of
suffrage. This accessory penalty deprives the
convict of the right to vote or to be elected to or
hold public office perpetually, as distinguished
from temporary special disqualification, which
lasts during the term of the sentence. Article 32,
Revised Penal Code, provides:
temporary special disqualification for the
exercise of the right of suffrage. The
perpetual or temporary special disqualification
for the exercise of the right of suffrage shall
deprive the offender perpetually or during the
term of the sentence, according to the nature of
said penalty, of the right to vote in any popular
election for any public office or to be elected to
such office. Moreover, the offender shall not be
permitted to hold any public office during the

period of disqualification.
The word "perpetually" and the phrase "during
the term of the sentence" should be applied
distributively to their respective antecedents;
thus, the word "perpetually" refers to the
perpetual kind of special disqualification, while
the phrase "during the term of the sentence"
refers to the temporary special disqualification.
The duration between the perpetual and the
temporary (both special) are necessarily
different because the provision, instead of
merging their durations into one period, states
that such duration is "according to the nature of
said penalty" which means according to
whether the penalty is the perpetual or the
temporary special disqualification. (Emphasis
supplied)
Clearly, Lacuna instructs that the accessory
penalty of perpetual special disqualification
"deprives the convict of the right to vote or
to be elected to or hold public office
perpetually.
The accessory penalty of perpetual special
disqualification takes effect immediately
once the judgment of conviction becomes
final. The effectivity of this accessory penalty
does not depend on the duration of the principal
penalty, or on whether the convict serves his jail
sentence or not. The last sentence of Article 32
states that "the offender shall not be permitted to
hold any public office during the period of his
[perpetual special] disqualification." Once the
judgment of conviction becomes final, it is
immediately executory. Any public office that the
convict may be holding at the time of his
conviction becomes vacant upon finality of the
judgment, and the convict becomes ineligible
to run for any elective public office
perpetually. In the case of Lonzanida, he
became ineligible perpetually to hold, or to
run for, any elective public office from the
time the judgment of conviction against him
became final. The judgment of conviction

was promulgated on 20 July 2009 and
became final on 23 October 2009, before
Lonzanida filed his certificate of candidacy
on 1 December 2009 . 26
Perpetual special disqualification is a ground
for a petition under Section 78 of the Omnibus
Election Code because this accessory penalty is
an ineligibility, which means that the convict is
not eligible to run for public office, contrary to the
statement that Section 74 requires him to state
under oath in his certificate of candidacy. As this
Court held in Fermin v. Commission on
Elections,27 the false material representation
may refer to "qualifications or eligibility. One
who suffers from perpetual special
disqualification is ineligible to run for public
office. If a person suffering from perpetual
special disqualification files a certificate of
candidacy stating under oath that "he is eligible
to run for (public) office," as expressly required
under Section 74, then he clearly makes afalse
material representation that is a ground for a
petition under Section 78. As this Court
explained in Fermin:
Lest it be misunderstood, the denial of due
course to or the cancellation of the CoC is not
based on the lack of qualifications but on a
finding that the candidate made a material
representation that is false, which may relate to
the qualifications required of the public
office he/she is running for. It is noted that
the candidate states in his/her CoC that
he/she is eligible for the office he/she seeks.
Section 78 of the OEC, therefore, is to be
read in relation to the constitutional and
statutory provisions on qualifications or
eligibility for public office. If the candidate
subsequently states a material
representation in the CoC that is false, the
COMELEC, following the law, is empowered
to deny due course to or cancel such
certificate. Indeed, the Court has already
likened a proceeding under Section 78 to a quo
warranto proceeding under Section 253 of the

OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction
mainly in the fact that a "Section 78" petition is
filed before proclamation, while a petition for quo
warranto is filed after proclamation of the
winning candidate.28 (Emphasis supplied)
Latasa, Rivera and Ong:
The Three-Term Limit Rule as a Ground for
Ineligibility
Section 74 requires the candidate to certify that
he is eligible for the public office he seeks
election. Thus, Section 74 states that "the
certificate of candidacy shall state that the
person filing x x x is eligible for said office.
The three-term limit rule, enacted to prevent the
establishment of political dynasties and to
enhance the electorates freedom of choice,29 is
found both in the Constitution30 and the
law.31 After being elected and serving for three
consecutive terms, an elective local official
cannot seek immediate reelection for the same
office in the next regular election32 because he
is ineligible. One who has an ineligibility to run
for elective public office is not "eligible for [the]
office." As used in Section 74, the word
"eligible"33 means having the right to run for
elective public office, that is, having all the
qualifications and none of the ineligibilities to run
for the public office.
In Latasa v. Commission on
Elections,34 petitioner Arsenio Latasa was
elected mayor of the Municipality of Digos,
Davao del Sur in 1992, 1995, and 1998. The
Municipality of Digos was converted into the City
of Digos during Latasas third term. Latasa filed
his certificate of candidacy for city mayor for the
2001 elections. Romeo Sunga, Latasas
opponent, filed before the COMELEC a "petition
to deny due course, cancel certificate of
candidacy and/or disqualification" under Section
78 on the ground that Latasa falsely represented
in his certificate of candidacy that he is eligible

to run as mayor of Digos City. Latasa argued
that he did not make any false representation. In
his certificate of candidacy, Latasa inserted a
footnote after the phrase "I am eligible" and
indicated "*Having served three (3) term[s] as
municipal mayor and now running for the first
time as city mayor." The COMELEC First
Division cancelled Latasas certificate of
candidacy for violation of the three-term limit rule
but not for false material representation. This
Court affirmed the COMELEC En Bancs denial
of Latasas motion for reconsideration.
We cancelled Marino Morales certificate of
candidacy in Rivera III v. Commission on
Elections (Rivera).35 We held that Morales
exceeded the maximum three-term limit, having
been elected and served as Mayor of Mabalacat
for four consecutive terms (1995 to 1998, 1998
to 2001, 2001 to 2004, and 2004 to 2007). We
declared him ineligible as a candidate for the
same position for the 2007 to 2010 term.
Although we did not explicitly rule that Morales
violation of the three-term limit rule constituted
false material representation, we nonetheless
granted the petition to cancel Morales certificate
of candidacy under Section 78. We also affirmed
the cancellation of Francis Ongs certificate of
candidacy in Ong v. Alegre,36 where the "petition
to disqualify, deny due course and cancel" Ongs
certificate of candidacy under Section 78 was
predicated on the violation of the three-term limit
rule.
Loong, Fermin and Munder:
When Possession of a Disqualifying Condition
is Not a Ground for a Petition for Disqualification
It is obvious from a reading of the laws and
jurisprudence that there is an overlap in the
grounds for eligibility and ineligibility vis-vis qualifications and disqualifications. For
example, a candidate may represent that he is a
resident of a particular Philippine locality37 when
he is actually a permanent resident of another

country.38 In cases of such overlap, the petitioner
should not be constrained in his choice of
remedy when the Omnibus Election Code
explicitly makes available multiple
remedies.39 Section 78 allows the filing of a
petition to deny due course or to cancel a
certificate of candidacy before the election, while
Section 253 allows the filing of a petition for quo
warranto after the election. Despite the overlap
of the grounds, one should not confuse a
petition for disqualification using grounds
enumerated in Section 68 with a petition to deny
due course or to cancel a certificate of
candidacy under Section 78.
The distinction between a petition under Section
68 and a petition under Section 78 was
discussed in Loong v. Commission on
Elections40 with respect to the applicable
prescriptive period. Respondent Nur Hussein
Ututalum filed a petition under Section 78 to
disqualify petitioner Benjamin Loong for the
office of Regional Vice-Governor of the
Autonomous Government of Muslim Mindanao
for false representation as to his age. The
petition was filed 16 days after the election, and
clearly beyond the prescribed 25 day period
from the last day of filing certificates of
candidacy. This Court ruled that Ututalums
petition was one based on false representation
under Section 78, and not for disqualification
under Section 68. Hence, the 25-day
prescriptive period provided in Section 78 should
be strictly applied. We recognized the possible
gap in the law:
It is true that the discovery of false
representation as to material facts required to be
stated in a certificate of candidacy, under
Section 74 of the Code, may be made only after
the lapse of the 25-day period prescribed by
Section 78 of the Code, through no fault of the
person who discovers such misrepresentations
and who would want the disqualification of the
candidate committing the misrepresentations. It
would seem, therefore, that there could indeed

be a gap between the time of the discovery of
the misrepresentation, (when the discovery is
made after the 25-day period under Sec. 78 of
the Code has lapsed) and the time when the
proclamation of the results of the election is
made. During this so-called "gap" the would-be
petitioner (who would seek the disqualification of
the candidate) is left with nothing to do except to
wait for the proclamation of the results, so that
he could avail of a remedy against the
misrepresenting candidate, that is, by filing a
petition for quo warranto against him.
Respondent Commission sees this "gap" in what
it calls a procedural gap which, according to it, is
unnecessary and should be remedied.
At the same time, it can not be denied that it is
the purpose and intent of the legislative branch
of the government to fix a definite time within
which petitions of protests related to eligibility of
candidates for elective offices must be filed, as
seen in Sections 78 and 253 of the Code.
Respondent Commission may have seen the
need to remedy this so-called procedural gap",
but it is not for it to prescribe what the law does
not provide, its function not being legislative. The
question of whether the time to file these
petitions or protests is too short or ineffective is
one for the Legislature to decide and remedy.41
In Fermin v. Commission on Elections,42 the
issue of a candidates possession of the required
one-year residency requirement was raised in a
petition for disqualification under Section 68
instead of a petition to deny due course or to
cancel a certificate of candidacy under Section
78. Despite the question of the one-year
residency being a proper ground under Section
78, Dilangalen, the petitioner before the
COMELEC in Fermin, relied on Section 5(C)(1)
and 5(C)(3)(a)(4) of COMELEC Resolution No.
780043 and filed the petition under Section 68.
In Fermin, we ruled that "a COMELEC rule or
resolution cannot supplant or vary legislative
enactments that distinguish the grounds for
disqualification from those of ineligibility,

and the appropriate proceedings to raise the
said grounds."44 A petition for disqualification can
only be premised on a ground specified in
Section 12 or 68 of the Omnibus Election Code
or Section 40 of the Local Government Code.
Thus, a petition questioning a candidates
possession of the required one-year residency
requirement, as distinguished from permanent
residency or immigrant status in a foreign
country, should be filed under Section 78, and a
petition under Section 68 is the wrong remedy.
In Munder v. Commission on
Elections,45 petitioner Alfais Munder filed a
certificate of candidacy for Mayor of Bubong,
Lanao del Sur on 26 November 2009.
Respondent Atty. Tago Sarip filed a petition for
Munders disqualification on 13 April 2010. Sarip
claimed that Munder misrepresented that he
was a registered voter of Bubong, Lanao del
Sur, and that he was eligible to register as a
voter in 2003 even though he was not yet 18
years of age at the time of the voters
registration. Moreover, Munders certificate of
candidacy was not accomplished in full as he
failed to indicate his precinct and did not affix his
thumb-mark. The COMELEC Second Division
dismissed Sarips petition and declared that his
grounds are not grounds for disqualification
under Section 68 but for denial or cancellation of
Munders certificate of candidacy under Section
78. Sarips petition was filed out of time as he
had only 25 days after the filing of Munders
certificate of candidacy, or until 21 December
2009, within which to file his petition.
The COMELEC En Banc, however, disqualified
Munder. In reversing the COMELEC Second
Division, the COMELEC En Banc did not rule on
the propriety of Sarips remedy but focused on
the question of whether Munder was a
registered voter of Bubong, Lanao del Sur. This
Court reinstated the COMELEC Second
Divisions resolution. This Court ruled that the
ground raised in the petition, lack of registration
as voter in the locality where he was running as

a candidate, is inappropriate for a petition for
disqualification. We further declared that with our
ruling in Fermin, we had already rejected the
claim that lack of substantive qualifications of a
candidate is a ground for a petition for
disqualification under Section 68. The only
substantive qualification the absence of which is
a ground for a petition under Section 68 is the
candidates permanent residency or immigrant
status in a foreign country.
The dissenting opinions place the violation of the
three-term limit rule as a disqualification under
Section 68 as the violation allegedly is "a status,
circumstance or condition which bars him from
running for public office despite the possession
of all the qualifications under Section 39 of the
[Local Government Code]." In so holding the
dissenting opinions write in the law what is not
found in the law. Section 68 is explicit as to the
proper grounds for disqualification under said
Section. The grounds for filing a petition for
disqualification under Section 68 are specifically
enumerated in said Section. However, contrary
to the specific enumeration in Section 68 and
contrary to prevailing jurisprudence, the
dissenting opinions add to the enumerated
grounds the violation of the three-term limit rule
and falsification under the Revised Penal Code,
which are obviously not found in the
enumeration in Section 68.
The dissenting opinions equate Lonzanidas
possession of a disqualifying condition (violation
of the three-term limit rule) with the grounds for
disqualification under Section 68. Section 68 is
explicit as to the proper grounds for
disqualification: the commission of specific
prohibited acts under the Omnibus Election
Code and possession of a permanent residency
or immigrant status in a foreign country. Any
other false representation regarding a material
fact should be filed under Section 78, specifically
under the candidates certification of his
eligibility. In rejecting a violation of the three-term
limit as a condition for eligibility, the dissenting

opinions resort to judicial legislation, ignoring
the verba legis doctrine and well-established
jurisprudence on this very issue.
In a certificate of candidacy, the candidate is
asked to certify under oath his eligibility, and
thus qualification, to the office he seeks election.
Even though the certificate of candidacy does
not specifically ask the candidate for the number
of terms elected and served in an elective
position, such fact is material in determining a
candidates eligibility, and thus qualification for
the office. Election to and service of the same
local elective position for three consecutive
terms renders a candidate ineligible from
running for the same position in the succeeding
elections. Lonzanida misrepresented his
eligibility because he knew full well that he had
been elected, and had served, as mayor of San
Antonio, Zambales for more than three
consecutive terms yet he still certified that he
was eligible to run for mayor for the next
succeeding term. Thus, Lonzanidas
representation that he was eligible for the office
that he sought election constitutes false material
representation as to his qualification or eligibility
for the office.
Legal Duty of COMELEC
to Enforce Perpetual Special Disqualification
Even without a petition under Section 78 of the
Omnibus Election Code, the COMELEC is under
a legal duty to cancel the certificate of candidacy
of anyone suffering from perpetual special
disqualification to run for public office by virtue of
a final judgment of conviction. The final
judgment of conviction is judicial notice to the
COMELEC of the disqualification of the convict
from running for public office. The law itself bars
the convict from running for public office, and the
disqualification is part of the final judgment of
conviction. The final judgment of the court is
addressed not only to the Executive branch, but
also to other government agencies tasked to

implement the final judgment under the law.
Whether or not the COMELEC is expressly
mentioned in the judgment to implement the
disqualification, it is assumed that the portion of
the final judgment on disqualification to run for
elective public office is addressed to the
COMELEC because under the Constitution the
COMELEC is duty bound to "enforce and
administer all laws and regulations relative to
the conduct of an election."46 The disqualification
of a convict to run for elective public office under
the Revised Penal Code, as affirmed by final
judgment of a competent court, is part of
theenforcement and administration of "all the
laws" relating to the conduct of elections.
Effect of a Void Certificate of Candidacy
A cancelled certificate of candidacy void ab
initio cannot give rise to a valid candidacy, and
much less to valid votes.47 We quote from the
COMELECs 2 February 2011 Resolution with
approval:
As early as February 18, 2010, the Commission
speaking through the Second Division had
already ordered the cancellation of Lonzanidas
certificate of candidacy, and had stricken off his
name in the list of official candidates for the
mayoralty post of San Antonio, Zambales.
Thereafter, the Commission En Banc in its
resolution dated August 11, 2010 unanimously
affirmed the resolution disqualifying Lonzanida.
Our findings were likewise sustained by the
Supreme Court no less. The disqualification of
Lonzanida is not simply anchored on one
ground. On the contrary, it was emphasized in
our En Banc resolution that Lonzanidas
disqualification is two-pronged: first, he violated
the constitutional fiat on the three-term limit; and
second, as early as December 1, 2009, he is
known to have been convicted by final judgment
for ten (10) counts of Falsification under Article
171 of the Revised Penal Code. In other words,
on election day, respondent Lonzanidas

disqualification is notoriously known in fact and
in law. Ergo, since respondent Lonzanida
was never a candidate for the position of
Mayor [of] San Antonio, Zambales, the votes
cast for him should be considered stray votes.
Consequently, Intervenor Antipolo, who remains
as the sole qualified candidate for the mayoralty
post and obtained the highest number of votes,
should now be proclaimed as the duly elected
Mayor of San Antonio, Zambales.48 (Boldfacing
and underscoring in the original; italicization
supplied)
Lonzanida's certificate of candidacy was
cancelled because he was ineligible or not
qualified to run for Mayor.1wphi1Whether his
certificate of candidacy is cancelled before or
after the elections is immaterial because the
cancellation on such ground means he was
never a candidate from the very beginning, his
certificate of candidacy being void ab
initio. There was only one qualified candidate for
Mayor in the May 201 0 elections - Anti polo,
who therefore received the highest number of
votes.
WHEREFORE, the petition is DISMISSED. The
Resolution dated 2 February 2011 and the Order
dated 12 January 2011 of the COMELEC En
Bane in SPA No. 09-158 (DC)
are AFFIRMED. The COMELEC En Bane
isDIRECTED to constitute a Special Municipal
Board of Canvassers to proclaim Estela D.
Antipolo as the duly elected Mayor of San
Antonio, Zambales. Petitioner Efren Racel
Aratea is ORDERED to cease and desist from
discharging the functions of the Office of the
Mayor of San Antonio, Zambales.
SO ORDERED.

SUPREME COURT
Manila
The petitioners take common issue on the power

of the President (acting through the Secretary of
Local Government), to suspend and/or remove
local officials.
EN BANC
G.R. No. 93252 August 5, 1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and
LUIS T. SANTOS, respondents.
G.R. No. 93746 August 5,1991
MARY ANN RIVERA ARTIEDA, petitioner,
vs.
HON. LUIS SANTOS, in his capacity as
Secretary of the Department of Local
Government, NICANOR M. PATRICIO, in his
capacity as Chief, Legal Service of the
Department of Local Government and
SALVADOR CABALUNA JR., respondents.
G.R. No. 95245 August 5,1991
RODOLFO T. GANZON, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and
LUIS T. SANTOS, in his capacity as the
Secretary of the Department of Local
Government, respondents.
Nicolas P. Sonalan for petitioner in 93252.
Romeo A. Gerochi for petitioner in 93746.
Eugenio Original for petitioner in 95245.
SARMIENTO, J.:p
The petitioners are the Mayor of Iloilo City (G.R.

Nos. 93252 and 95245) and a member of the
Sangguniang Panglunsod thereof (G.R. No.
93746), respectively.
The petitions of Mayor Ganzon originated from a
series of administrative complaints, ten in
number, filed against him by various city officials
sometime in 1988, on various charges, among
them, abuse of authority, oppression, grave
misconduct, disgraceful and immoral conduct,
intimidation, culpable violation of the
Constitution, and arbitrary detention. 1 The
personalities involved are Joceleehn Cabaluna,
a clerk at the city health office; Salvador
Cabaluna, her husband; Dr. Felicidad Ortigoza,
Assistant City Health Officer; Mansueto Malabor,
Vice-Mayor; Rolando Dabao, Dan Dalido,
German Gonzales, Larry Ong, and Eduardo
Pefia Redondo members of the Sangguniang
Panglunsod; and Pancho Erbite, a barangay
tanod. The complaints against the Mayor are set
forth in the opinion of the respondent Court of
Appeals. 2 We quote:
xxx xxx xxx
In her verified complaint (Annex
A), Mrs. Cabaluna, a clerk
assigned to the City Health,
Office of Iloilo City charged that
due to political reasons, having
supported the rival candidate,
Mrs. Rosa 0. Caram, the
petitioner City Mayor, using as
an excuse the exigency of the
service and the interest of the
public, pulled her out from
rightful office where her
qualifications are best suited

and assigned her to a work that
should be the function of a noncareer service employee. To
make matters worse, a utility
worker in the office of the Public
Services, whose duties are alien
to the complainant's duties and
functions, has been detailed to
take her place. The petitioner's
act are pure harassments aimed
at luring her away from her
permanent position or force her
to resign.
In the case of Dra. Felicidad
Ortigoza, she claims that the
petitioner handpicked her to
perform task not befitting her
position as Assistant City Health
Officer of Iloilo City; that her
office was padlocked without
any explanation or justification;
that her salary was withheld
without cause since April 1,
1988; that when she filed her
vacation leave, she was given
the run-around treatment in the
approval of her leave in
connivance with Dr. Rodolfo
Villegas and that she was the
object of a well-engineered
trumped-up charge in an
administrative complaint filed by
Dr. Rodolfo Villegas (Annex B).
On the other hand, Mansuelo
Malabor is the duly elected
Vice-Mayor of Iloilo City and
complainants Rolando Dabao,
Dan Dalido, German Gonzales,
Larry Ong and Eduardo Pefia
Pedondo are members of the
Sangguniang Panglunsod of the
City of Iloilo. Their complaint
arose out from the case where

Councilor Larry Ong, whose key
to his office was
unceremoniously and without
previous notice, taken by
petitioner. Without an office,
Councilor Ong had to hold office
at Plaza Libertad, The ViceMayor and the other
complainants sympathized with
him and decided to do the
same. However, the petitioner,
together with its fully-armed
security men, forcefully drove
them away from Plaza Libertad.
Councilor Ong denounced the
petitioner's actuations the
following day in the radio station
and decided to hold office at the
Freedom Grandstand at Iloilo
City and there were so many
people who gathered to witness
the incident. However, before
the group could reach the area,
the petitioner, together with his
security men, led the firemen
using a firetruck in dozing water
to the people and the
bystanders.
Another administrative case was
filed by Pancho Erbite, a
barangay tanod, appointed by
former mayor Rosa O. Caram.
On March 13, 1988, without the
benefit of charges filed against
him and no warrant of arrest
was issued, Erbite was arrested
and detained at the City Jail of
Iloilo City upon orders of
petitioner. In jail, he was
allegedly mauled by other
detainees thereby causing
injuries He was released only
the following day. 3
The Mayor thereafter answered 4 and the cases

were shortly set for hearing. The opinion of the
Court of Appeals also set forth the succeeding
events:
xxx xxx xxx
The initial hearing in the
Cabaluna and Ortigoza cases
were set for hearing on June 2021, 1988 at the Regional Office
of the Department of Local
Government in Iloilo City.
Notices, through telegrams,
were sent to the parties (Annex
L) and the parties received
them, including the petitioner.
The petitioner asked for a
postponement before the
scheduled date of hearing and
was represented by counsel,
Atty. Samuel Castro. The
hearing officers, Atty. Salvador
Quebral and Atty. Marino
Bermudez had to come all the
way from Manila for the two-day
hearings but was actually held
only on June 20,1988 in view of
the inability and
unpreparedness of petitioner's
counsel.
The next hearings were re-set to
July 25, 26, 27,1988 in the
same venue-Iloilo City. Again,
the petitioner attempted to delay
the proceedings and moved for
a postponement under the
excuse that he had just hired his
counsel. Nonetheless, the
hearing officers denied the
motion to postpone, in view of
the fact that the parties were
notified by telegrams of the
scheduled hearings (Annex M).
In the said hearings, petitioner's

counsel cross-examined the
complainants and their
witnesses.
Finding probable grounds and
reasons, the respondent issued
a preventive suspension order
on August 11, 1988 to last until
October 11,1988 for a period of
sixty (60) days.
Then the next investigation was
set on September 21, 1988 and
the petitioner again asked for a
postponement to September
26,1988. On September 26,
1988, the complainants and
petitioner were present, together
with their respective counsel.
The petitioner sought for a
postponement which was
denied. In these hearings which
were held in Mala the petitioner
testified in Adm. Case No. C10298 and 10299.
The investigation was continued
regarding the Malabor case and
the complainants testified
including their witnesses.
On October 10, 1988,
petitioner's counsel, Atty.
Original moved for a
postponement of the October
24, 1988 hearing to November 7
to 11, 1988 which was granted.
However, the motion for change
of venue as denied due to lack
of funds. At the hearing on
November 7, 1988, the parties
and counsel were present.
Petitioner reiterated his motion
to change venue and moved for
postponement anew. The
counsel discussed a proposal to

take the deposition of witnesses
in Iloilo City so the hearing was
indefinitely postponed. However,
the parties failed to come to
terms and after the parties were
notified of the hearing, the
investigation was set to
December 13 to 15, 1988.
The petitioner sought for
another postponement on the
ground that his witnesses were
sick or cannot attend the
investigation due to lack of
transportation. The motion was
denied and the petitioner was
given up to December 14, 1988
to present his evidence.
On December 14,1988,
petitioner's counsel insisted on
his motion for postponement
and the hearing officers gave
petitioner up to December 15,
1988 to present his evidence.
On December 15, 1988, the
petitioner failed to present
evidence and the cases were
considered submitted for
resolution.
In the meantime, a prima facie
evidence was found to exist in
the arbitrary detention case filed
by Pancho Erbite so the
respondent ordered the
petitioner's second preventive
suspension dated October 11,
1988 for another sixty (60) days.
The petitioner was able to
obtain a restraining order and a
writ of preliminary injunction in
the Regional Trial Court, Branch
33 of Iloilo City. The second
preventive suspension was not

enforced. 5
Amidst the two successive suspensions, Mayor
Ganzon instituted an action for prohibition
against the respondent Secretary of Local
Government (now, Interior) in the Regional Trial
Court, Iloilo City, where he succeeded in
obtaining a writ of preliminary injunction.
Presently, he instituted CA-G.R. SP No. 16417,
an action for prohibition, in the respondent Court
of Appeals.
Meanwhile, on May 3, 1990, the respondent
Secretary issued another order, preventively
suspending Mayor Ganzon for another sixty
days, the third time in twenty months, and
designating meantime Vice-Mayor Mansueto
Malabor as acting mayor. Undaunted, Mayor
Ganzon commenced CA-G.R. SP No. 20736 of
the Court of Appeals, a petition for
prohibition, 6 (Malabor it is to be noted, is one of
the complainants, and hence, he is interested in
seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals
rendered judgment, dismissing CA-G.R. SP No.
16417. On July 5, 1990, it likewise promulgated
a decision, dismissing CA-G.R. SP No. 20736.
In a Resolution dated January 24, 1990, it
issued a Resolution certifying the petition of
Mary Ann Artieda, who had been similary
charged by the respondent Secretary, to this
Court.
On June 26,1990, we issued a Temporary
Restraining Order, barring the respondent
Secretary from implementing the suspension
orders, and restraining the enforcement of the
Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we
consolidated all three cases. In our Resolutions
of January 15, 1991, we gave due course
thereto.
Mayor Ganzon claims as a preliminary (GR No.

93252), that the Department of Local
Government in hearing the ten cases against
him, had denied him due process of law and that
the respondent Secretary had been "biased,
prejudicial and hostile" towards him 7 arising
from his (Mayor Ganzon's) alleged refusal to join
the Laban ng Demokratikong Pilipino party 8 and
the running political rivalry they maintained in
the last congressional and local elections;9 and
his alleged refusal to operate a lottery in Iloilo
City. 10 He also alleges that he requested the
Secretary to lift his suspension since it had
come ninety days prior to an election (the
barangay elections of November 14,
1988), 11notwithstanding which, the latter
proceeded with the hearing and meted out two
more suspension orders of the aforementioned
cases. 12 He likewise contends that he sought to
bring the cases to Iloilo City (they were held in
Manila) in order to reduce the costs of
proceeding, but the Secretary rejected his
request. 13 He states that he asked for
postponement on "valid and
justifiable" 14 grounds, among them, that he was
suffering from a heart ailment which required
confinement; that his "vital" 15 witness was also
hospitalized 16 but that the latter unduly denied
his request. 17
Mayor Ganzon's primary argument (G.R. Nos.
93252 and 95245) is that the Secretary of Local
Government is devoid, in any event, of any
authority to suspend and remove local officials,
an argument reiterated by the petitioner Mary
Ann Rivera Artieda (G.R. No. 93746).
As to Mayor Ganzon's charges of denial of due
process, the records do not show very clearly in
what manner the Mayor might have been
deprived of his rights by the respondent
Secretary. His claims that he and Secretary LuisSantos were (are) political rivals and that his
"persecution" was politically motivated are pure
speculation and although the latter does not
appear to have denied these contentions (as he,
Mayor Ganzon, claims), we can not take his

word for it the way we would have under less
political circumstances, considering furthermore
that "political feud" has often been a good
excuse in contesting complaints.
The Mayor has failed furthermore to substantiate
his say-so's that Secretary Santos had
attempted to seduce him to join the
administration party and to operate a lottery in
Iloilo City. Again, although the Secretary failed to
rebut his allegations, we can not accept them, at
face value, much more, as judicial admissions
as he would have us accept them 18 for the same
reasons above-stated and furthermore, because
his say so's were never corroborated by
independent testimonies. As a responsible
public official, Secretary Santos, in pursuing an
official function, is presumed to be performing
his duties regularly and in the absence of
contrary evidence, no ill motive can be ascribed
to him.
As to Mayor Ganzon's contention that he had
requested the respondent Secretary to defer the
hearing on account of the ninety-day ban
prescribed by Section 62 of Batas Blg. 337, the
Court finds the question to be moot and
academic since we have in fact restrained the
Secretary from further hearing the complaints
against the petitioners. 19
As to his request, finally, for postponements, the
Court is afraid that he has not given any
compelling reason why we should overturn the
Court of Appeals, which found no convincing
reason to overrule Secretary Santos in denying
his requests. Besides, postponements are a
matter of discretion on the part of the hearing
officer, and based on Mayor Ganzon's above
story, we are not convinced that the Secretary
has been guilty of a grave abuse of discretion.
The Court can not say, under these
circumstances, that Secretary Santos' actuations
deprived Mayor Ganzon of due process of law.
We come to the core question: Whether or not

the Secretary of Local Government, as the
President's alter ego, can suspend and/or
remove local officials.
It is the petitioners' argument that the 1987
Constitution 20 no longer allows the President, as
the 1935 and 1973 Constitutions did, to exercise
the power of suspension and/or removal over
local officials. According to both petitioners, the
Constitution is meant, first, to strengthen selfrule by local government units and second, by
deleting the phrase 21 as may be provided by law
to strip the President of the power of control over
local governments. It is a view, so they contend,
that finds support in the debates of the
Constitutional Commission. The provision in
question reads as follows:
Sec. 4. The President of the
Philippines shall exercise
general supervision over local
governments. Provinces with
respect to component cities and
municipalities, and cities and
municipalities with respect to
component barangays shall
ensure that the acts of their
component units are within the
scope of their prescribed
powers and functions. 22
It modifies a counterpart provision appearing in
the 1935 Constitution, which we quote:
Sec. 10. The President shall
have control of all the executive
departments, bureaus, or
offices, exercise general
supervision over all Local
governments as may be
provided by law, and take care
that the laws be faithfully
executed. 23
The petitioners submit that the deletion (of "as

may be provided by law") is significant, as their
argument goes, since: (1) the power of the
President is "provided by law" and (2) hence, no
law may provide for it any longer.
It is to be noted that in meting out the
suspensions under question, the Secretary of
Local Government acted in consonance with the
specific legal provisions of Batas Blg. 337, the
Local Government Code, we quote:
Sec. 62. Notice of Hearing.
Within seven days after the
complaint is filed, the Minister of
local Government, or the
sanggunian concerned, as the
case may be, shall require the
respondent to submit his verified
answer within seven days from
receipt of said complaint, and
commence the hearing and
investigation of the case within
ten days after receipt of such
answer of the respondent. No
investigation shall be held within
ninety days immediately prior to
an election, and no preventive
suspension shall be imposed
with the said period. If
preventive suspension has been
imposed prior to the aforesaid
period, the preventive
suspension shall be lifted. 24
Sec. 63. Preventive
Suspension. (1) Preventive
suspension may be imposed by
the Minister of Local
Government if the respondent is
a provincial or city official, by the
provincial governor if the
respondent is an elective
municipal official, or by the city
or municipal mayor if the
barangay official.
(2) Preventive suspension may
be imposed at any time after the
issues are joined, when there is
reasonable ground to believe
that the respondent has
committed the act or acts
complained of, when the
evidence of culpability is strong,
when the gravity of the offense
so warrants, or when the
continuance in office of the
respondent could influence the
witnesses or pose a threat to
the safety and integrity of the
records and other evidence. In
all cases, preventive suspension
shall not extend beyond sixty
days after the start of said
suspension.
(3) At the expiration of sixty
days, the suspended official
shall be deemed reinstated in
office without prejudice to the
continuation of the proceedings
against him until its termination.
However ' if the delay in the
proceedings of the case is due
to his fault, neglect or request,
the time of the delay shall not be
counted in computing the time
of suspension. 25
The issue, as the Court understands it, consists
of three questions: (1) Did the 1987 Constitution,
in deleting the phrase "as may be provided by
law" intend to divest the President of the power
to investigate, suspend, discipline, and/or
remove local officials? (2) Has the Constitution
repealed Sections 62 and 63 of the Local
Government Code? (3) What is the significance
of the change in the constitutional language?
It is the considered opinion of the Court that

notwithstanding the change in the constitutional
language, the charter did not intend to divest the
legislature of its right or the President of her
prerogative as conferred by existing legislation
to provide administrative sanctions against local
officials. It is our opinion that the omission (of
"as may be provided by law") signifies nothing
more than to underscore local governments'
autonomy from congress and to break Congress'
"control" over local government affairs. The
Constitution did not, however, intend, for the
sake of local autonomy, to deprive the legislature
of all authority over municipal corporations, in
particular, concerning discipline.
Autonomy does not, after all, contemplate
making mini-states out of local government
units, as in the federal governments of the
United States of America (or Brazil or Germany),
although Jefferson is said to have compared
municipal corporations euphemistically to "small
republics." 26 Autonomy, in the constitutional
sense, is subject to the guiding star, though not
control, of the legislature, albeit the legislative
responsibility under the Constitution and as the
"supervision clause" itself suggest-is to wean
local government units from over-dependence
on the central government.
It is noteworthy that under the Charter, "local
autonomy" is not instantly self-executing, but
subject to, among other things, the passage of a
local government code, 27 a local tax
law, 28 income distribution legislation, 29 and a
national representation law, 30 and
measures 31 designed to realize autonomy at the
local level. It is also noteworthy that in spite of
autonomy, the Constitution places the local
government under the general supervision of the
Executive. It is noteworthy finally, that the
Charter allows Congress to include in the local
government code provisions for removal of local
officials, which suggest that Congress may
exercise removal powers, and as the existing
Local Government Code has done, delegate its

exercise to the President. Thus:
Sec. 3. The Congress shall
enact a local government code
which shall provide for a more
responsive and accountable
local government structure
instituted through a system of
decentralization with effective
mechanisms of recall, initiative,
and referendum, allocate among
the different local government
units their powers,
responsibilities and resources,
and provide for the
qualifications, election,
appointment and removal, term,
salaries, powers and functions
and duties of local officials, and
all other matters relating to the
organization and operation of
the local units. 32
As hereinabove indicated, the deletion of "as
may be provided by law" was meant to
stress, sub silencio, the objective of the framers
to strengthen local autonomy by severing
congressional control of its affairs, as observed
by the Court of Appeals, like the power of local
legislation. 33 The Constitution did nothing more,
however, and insofar as existing legislation
authorizes the President (through the Secretary
of Local Government) to proceed against local
officials administratively, the Constitution
contains no prohibition.
The petitioners are under the impression that the
Constitution has left the President mere
supervisory powers, which supposedly excludes
the power of investigation, and denied her
control, which allegedly embraces disciplinary
authority. It is a mistaken impression because
legally, "supervision" is not incompatible with
disciplinary authority as this Court has
held, 34 thus:
xxx xxx xxx

It is true that in the case of
Mondano vs. Silvosa, 51 Off.
Gaz., No. 6 p. 2884, this Court
had occasion to discuss the
scope and extent of the power
of supervision by the President
over local government officials
in contrast to the power of
control given to him over
executive officials of our
government wherein it was
emphasized that the two terms,
control and supervision, are two
different things which differ one
from the other in meaning and
extent. Thus in that case the
Court has made the following
digression: "In administration
law supervision means
overseeing or the power or
authority of an officer to see that
subordinate officers perform
their duties. If the latter fail or
neglect to fulfill them the former
may take such action or step as
prescribed by law to make them
perform their duties. Control, on
the other hand, means the
power of an officer to alter or
modify or nullify of set aside
what a subordinate officer had
done in the performance of his
duties and to substitute the
judgment of the former for that
of the latter." But from this
pronouncement it cannot be
reasonably inferred that the
power of supervision of the
President over local government
officials does not include the
power of investigation when in
his opinion the good of the
public service so requires, as
postulated in Section 64(c) of
the Revised Administrative

Code. ... 35
xxx xxx xxx
"Control" has been defined as "the power of an
officer to alter or modify or nullify or set aside
what a subordinate officer had done in the
performance of his duties and to substitute the
judgment of the former for test of the
latter." 36 "Supervision" on the other hand means
"overseeing or the power or authority of an
officer to see that subordinate officers perform
their duties. 37 As we held, 38 however,
"investigating" is not inconsistent with
"overseeing", although it is a lesser power than
"altering". The impression is apparently
exacerbated by the Court's pronouncements in
at least three cases, Lacson v. Roque, 39 Hebron
v. Reyes, 40 and Mondano v. Silvosa, 41 and
possibly, a fourth one, Pelaez v. Auditor
General. 42 In Lacson, this Court said that the
President enjoyed no control powers but only
supervision "as may be provided by law," 43 a
rule we reiterated in Hebron, and Mondano.
In Pelaez, we stated that the President "may
not . . . suspend an elective official of a regular
municipality or take any disciplinary action
against him, except on appeal from a decision of
the corresponding provincial board." 44 However,
neither Lacson nor Hebron nor Mondano catego
rically banned the Chief Executive from
exercising acts of disciplinary authority because
she did not exercise control powers, but
because no law allowed her to exercise
disciplinary authority. Thus, according to Lacson:
The contention that the
President has inherent power to
remove or suspend municipal
officers is without doubt not well
taken. Removal and suspension
of public officers are always
controlled by the particular law
applicable and its proper
construction subject to
constitutional limitations. 45
In Hebron we stated:
Accordingly, when the
procedure for the suspension of
an officer is specified by law, the
same must be deemed
mandatory and adhered to
strictly, in the absence of
express or clear provision to the
contrary-which does not et with
respect to municipal
officers ... 46
In Mondano, the Court held:
... The Congress has expressly
and specifically lodged the
provincial supervision over
municipal officials in the
provincial governor who is
authorized to "receive and
investigate complaints made
under oath against municipal
officers for neglect of duty,
oppression, corruption or other
form of maladministration of
office, and conviction by final
judgment of any crime involving
moral turpitude." And if the
charges are serious, "he shall
submit written charges touching
the matter to the provincial
board, furnishing a copy of such
charges to the accused either
personally or by registered mail,
and he may in such case
suspend the officer (not being
the municipal treasurer) pending
action by the board, if in his
opinion the charge by one
affecting the official integrity of
the officer in question." Section
86 of the Revised Administration
Code adds nothing to the power

of supervision to be exercised
by the Department Head over
the administration of ...
municipalities ... . If it be
construed that it does and such
additional power is the same
authority as that vested in the
Department Head by section
79(c) of the Revised
Administrative Code, then such
additional power must be
deemed to have been
abrogated by Section 110(l),
Article VII of the Constitution. 47
xxx xxx xxx
In Pelaez, we stated that the President can not
impose disciplinary measures on local officials
except on appeal from the provincial board
pursuant to the Administrative Code. 48
Thus, in those case that this Court denied the
President the power (to suspend/remove) it was
not because we did not think that the President
can not exercise it on account of his limited
power, but because the law lodged the power
elsewhere. But in those cases ii which the law
gave him the power, the Court, as in Ganzon v.
Kayanan, found little difficulty in sustaining
him. 49
The Court does not believe that the petitioners
can rightfully point to the debates of the
Constitutional Commission to defeat the
President's powers. The Court believes that the
deliberations are by themselves inconclusive,
because although Commissioner Jose Nolledo
would exclude the power of removal from the
President, 50Commissioner Blas Ople would
not. 51
The Court is consequently reluctant to say that
the new Constitution has repealed the Local
Government Code, Batas Blg. 37. As we said,

"supervision" and "removal" are not incompatible
terms and one may stand with the other
notwithstanding the stronger expression of local
autonomy under the new Charter. We have
indeed held that in spite of the approval of the
Charter, Batas Blg. 337 is still in force and
effect. 52
As the Constitution itself declares, local
autonomy means "a more responsive and
accountable local government structure
instituted through a system of
decentralization." 53 The Constitution as we
observed, does nothing more than to break up
the monopoly of the national government over
the affairs of local governments and as put by
political adherents, to "liberate the local
governments from the imperialism of Manila."
Autonomy, however, is not meant to end the
relation of partnership and inter-dependence
between the central administration and local
government units, or otherwise, to user in a
regime of federalism. The Charter has not taken
such a radical step. Local governments, under
the Constitution, are subject to regulation,
however limited, and for no other purpose than
precisely, albeit paradoxically, to enhance selfgovernment.
As we observed in one case, 54 decentralization
means devolution of national administration but
not power to the local levels. Thus:
Now, autonomy is either
decentralization of
administration or
decentralization of power. There
is decentralization of
administration when the central
government delegates
administrative powers to political
subdivisions in order to broaden
the base of government power
and in the process to make local
governments "more responsive
and accountable," and "ensure

their fullest development as selfreliant communities and make
them more effective partners in
the pursuit of national
development and social
progress." At the same time, it
relieves the central government
of the burden of managing local
affairs and enables it to
concentrate on national
concerns. The President
exercises "general supervision"
over them, but only to "ensure
that local affairs are
administered according to law."
He has no control over their acts
in the sense that he can
substitute their judgments with
his own.
Decentralization of power, on
the other hand, involves an
abdication of political power in
the favor of local governments
units declared to be
autonomous, In that case, the
autonomous government is free
to chart its own destiny and
shape its future with minimum
intervention from central
authorities. According to a
constitutional author,
decentralization of power
amounts to "self-immolation,"
since in that event, the
autonomous government
becomes accountable not to the
central authorities but to its
constituency. 55
The successive sixty-day suspensions imposed
on Mayor Rodolfo Ganzon is albeit another
matter. What bothers the Court, and what indeed
looms very large, is the fact that since the Mayor
is facing ten administrative charges, the Mayor
is in fact facing the possibility of 600 days of

suspension, in the event that all ten cases
yield prima facie findings. The Court is not of
course tolerating misfeasance in public office
(assuming that Mayor Ganzon is guilty of
misfeasance) but it is certainly another question
to make him serve 600 days of suspension,
which is effectively, to suspend him out of office.
As we held: 56
2. Petitioner is a duly elected
municipal mayor of Lianga,
Surigao del Sur. His term of
office does not expire until 1986.
Were it not for this information
and the suspension decreed by
the Sandiganbayan according to
the Anti-Graft and Corrupt
Practices Act, he would have
been all this while in the full
discharge of his functions as
such municipal mayor. He was
elected precisely to do so. As of
October 26, 1983, he has been
unable to. it is a basic
assumption of the electoral
process implicit in the right of
suffrage that the people are
entitled to the services of
elective officials of their choice.
For misfeasance or
malfeasance, any of them could,
of course, be proceeded against
administratively or, as in this
instance, criminally. In either
case, Ms culpability must be
established. Moreover, if there
be a criminal action, he is
entitled to the constitutional
presumption of innocence. A
preventive suspension may be
justified. Its continuance,
however, for an unreasonable
length of time raises a due
process question. For even if
thereafter he were acquitted, in
the meanwhile his right to hold

office had been nullified. Clearly,
there would be in such a case
an injustice suffered by him. Nor
is he the only victim. There is
injustice inflicted likewise on the
people of Lianga They were
deprived of the services of the
man they had elected to serve
as mayor. In that sense, to
paraphrase Justice Cardozo,
the protracted continuance of
this preventive suspension had
outrun the bounds of reason
and resulted in sheer
oppression. A denial of due
process is thus quite manifest. It
is to avoid such an
unconstitutional application that
the order of suspension should
be lifted. 57
The plain truth is that this Court has been ill at
ease with suspensions, for the above
reasons, 58 and so also, because it is out of the
ordinary to have a vacancy in local government.
The sole objective of a suspension, as we have
held, 59 is simply "to prevent the accused from
hampering the normal cause of the investigation
with his influence and authority over possible
witnesses" 60 or to keep him off "the records and
other evidence. 61
It is a means, and no more, to assist prosecutors
in firming up a case, if any, against an erring
local official. Under the Local Government Code,
it can not exceed sixty days, 62 which is to say
that it need not be exactly sixty days long if a
shorter period is otherwise sufficient, and which
is also to say that it ought to be lifted if
prosecutors have achieved their purpose in a
shorter span.
Suspension is not a penalty and is not unlike
preventive imprisonment in which the accused is
held to insure his presence at the trial. In both
cases, the accused (the respondent) enjoys a

presumption of innocence unless and until found
guilty.
Suspension finally is temporary and as the Local
Government Code provides, it may be imposed
for no more than sixty days. As we held, 63 a
longer suspension is unjust and unreasonable,
and we might add, nothing less than tyranny.
As we observed earlier, imposing 600 days of
suspension which is not a remote possibility
Mayor Ganzon is to all intents and purposes, to
make him spend the rest of his term in inactivity.
It is also to make, to all intents and purposes, his
suspension permanent.
It is also, in fact, to mete out punishment in spite
of the fact that the Mayor's guilt has not been
proven. Worse, any absolution will be for naught
because needless to say, the length of his
suspension would have, by the time he is
reinstated, wiped out his tenure considerably.
The Court is not to be mistaken for obstructing
the efforts of the respondent Secretary to see
that justice is done in Iloilo City, yet it is hardly
any argument to inflict on Mayor Ganzon
successive suspensions when apparently, the
respondent Secretary has had sufficient time to
gather the necessary evidence to build a case
against the Mayor without suspending him a day
longer. What is intriguing is that the respondent
Secretary has been cracking down, so to speak,
on the Mayor piecemeal apparently, to pin him
down ten times the pain, when he, the
respondent Secretary, could have pursued a
consolidated effort.
We reiterate that we are not precluding the
President, through the Secretary of Interior from
exercising a legal power, yet we are of the
opinion that the Secretary of Interior is
exercising that power oppressively, and
needless to say, with a grave abuse of

discretion.
2. The new Constitution does not prescribe

federalism;
The Court is aware that only the third

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

respect to the supervision clause) was meant
but to deny legislative control over local
governments; it did not exempt the latter from
legislative regulations provided regulation is
consistent with the fundamental premise of
autonomy;
As we said, we can not tolerate such a state of

affairs.
We are therefore allowing Mayor Rodolfo
Ganzon to suffer the duration of his third
suspension and lifting, for the purpose, the
Temporary Restraining Order earlier issued.
Insofar as the seven remaining charges are
concerned, we are urging the Department of
Local Government, upon the finality of this
Decision, to undertake steps to expedite the
same, subject to Mayor Ganzon's usual
remedies of appeal, judicial or administrative, or
certiorari, if warranted, and meanwhile, we are
precluding the Secretary from meting out further
suspensions based on those remaining
complaints, notwithstanding findings of prima
facie evidence.
In resume the Court is laying down the following
rules:
1. Local autonomy, under the Constitution,
involves a mere decentralization of
administration, not of power, in which local
officials remain accountable to the central
government in the manner the law may provide;
4. Since local governments remain accountable

to the national authority, the latter may, by law,
and in the manner set forth therein, impose
disciplinary action against local officials;
Restraining Order issued is LIFTED. The

suspensions of the petitioners are AFFIRMED,
provided that the petitioner, Mayor Rodolfo
Ganzon, may not be made to serve future
suspensions on account of any of the remaining
administrative charges pending against him for
acts committed prior to August 11, 1988. The
Secretary of Interior is ORDERED to consolidate
all such administrative cases pending against
Mayor Ganzon.
The sixty-day suspension against the petitioner,
Mary Ann Rivera Artieda, is AFFIRMED. No
costs.
SO ORDERED.
5. "Supervision" and "investigation" are not

inconsistent terms; "investigation" does not
signify "control" (which the President does not
have);
6. The petitioner, Mayor Rodolfo Ganzon. may
serve the suspension so far ordered, but may no
longer be suspended for the offenses he was
charged originally; provided:
a) that delays in the investigation of
those charges "due to his fault, neglect
or request, (the time of the delay) shall
not be counted in computing the time of
suspension. [Supra, sec. 63(3)]
b) that if during, or after the expiration
of, his preventive suspension, the
petitioner commits another or other
crimes and abuses for which proper
charges are filed against him by the
aggrieved party or parties, his previous
suspension shall not be a bar to his
being preventively suspended again, if
warranted under subpar. (2), Section 63
of the Local Government Code.
WHEREFORE, premises considered, the
petitions are DISMISSED. The Temporary
[A.M. MTJ-98-1147. July 2, 1998]
JESUS
S.
CONDUCTO, complainant,
vs. JUDGE
ILUMINADO
C.
MONZON, respondent.
RESOLUTION
DAVIDE, JR., J.:

In a sworn letter-complaint dated 14
October
1996,[1] complainant
charged
respondent Judge Iluminado C. Monzon of the
Municipal Trial Court in Cities, San Pablo City,
with ignorance of law, in that he deliberately
refused to suspend a barangay chairman who
was charged before his court with the crime of
unlawful appointment under Article 244 of the
Revised Penal Code.
The factual antecedents recited in the
letter-complaint are not controverted.
On 30 August 1993, complainant filed a
complaint with the Sangguniang Panlungsod of
San Pablo City against one Benjamin
Maghirang, the barangay chairman of Barangay
III-E of San Pablo City, for abuse of authority,
serious irregularity and violation of law in that,
among other things, said respondent Maghirang
appointed his sister-in-law, Mrs. Florian
Maghirang, to the position of barangay secretary
on 17 May 1989 in violation of Section 394 of
the Local Government Code. At the same time,
complainant filed a complaint for violation of
Article 244 of the Revised Penal Code with the
Office of the City Prosecutor against Maghirang,
which was, however, dismissed[2] on 30
September 1993 on the ground that Maghirangs
sister-in-law was appointed before the effectivity
of the Local Government Code of 1991, which
prohibits a punong barangay from appointing a
relative within the fourth civil degree of

consanguinity
or
affinity
as
barangay
secretary. The order of dismissal was submitted
to the Office of the Deputy Ombudsman for
Luzon.
On 22 October 1993, complainant obtained
Opinion No. 246, s. 1993 [3] from Director Jacob
Montesa of the Department of Interior and Local
Government,
which
declared
that
the
appointment issued by Maghirang to his sisterin-law violated paragraph (2), Section 95 of B.P.
Blg. 337, the Local Government Code prior to
the Local Government Code of 1991.
In its Revised Resolution of 29 November
1993,[4] the Office of the Deputy Ombudsman for
Luzon dismissed the case, but ordered
Maghirang to replace his sister-in-law as
barangay secretary.
On 20 December 1993, complainant moved
that the Office of the Deputy Ombudsman for
Luzon reconsider[5] the order of 29 November
1993, in light of Opinion No. 246, s. 1993 of
Director Montesa.
Acting on the motion, Francisco Samala,
Graft Investigation Officer II of the Office of the
Deputy Ombudsman for Luzon, issued an
order[6] on 8 February 1994 granting the motion
for reconsideration and recommending the filing
of an information for unlawful appointment
(Article 244 of the Revised Penal Code) against
Maghirang. The recommendation was duly
approved by Manuel C. Domingo, Deputy
Ombudsman for Luzon.
In a 3rd indorsement dated 4 March 1994,
the Deputy Ombudsman for Luzon transmitted
the record of the case to the Office of the City
Prosecutor of San Pablo City and instructed the
latter to file the corresponding information
against Maghirang with the proper court and to
prosecute the case. The information for violation
[7]
of Article 244 of the Revised Penal Code was

forthwith filed with the Municipal Trial Court in
Cities in San Pablo City and docketed as
Criminal Case No. 26240. On 11 April 1994, the
presiding judge, respondent herein, issued a
warrant for the arrest of Maghirang, with a
recommendation of aP200.00 bond for his
provisional liberty.
With prior leave from the Office of the
Deputy Ombudsman for Luzon, on 4 May 1995,
the City Prosecutor filed, in Criminal Case No.
26240, a motion for the suspension [8] of accused
Maghirang pursuant to Section 13 of R.A. No.
3019, as amended, which reads, in part:
SEC. 13. Any incumbent public officer
against whom any criminal prosecution
under a valid information under this
Act or under Title 7, Book II of the
Revised Penal Code or for any offense
involving fraud upon government or
public funds or property whether as a
single or as complex offense and in
whatever stage of execution and mode
of participation, is pending in Court,
shall be suspended from office.
In his Order of 30 June 1995,[9] respondent
judge denied the motion for suspension on the
ground that:
[T]he alleged offense of UNLAWFUL
APPOINTMENT under Article 244 of
the Revised Penal Code was
committed on May 17, 1989, during
[Maghirangs] terms (sic) of office from
1989 to 1994 and said accused was
again re-elected as Barangay
Chairman during the last Barangay
Election of May 9, 1994, hence,
offenses committed during previous
term is (sic) not a cause for removal
(Lizarez vs. Hechanova, et al., G.R.
No. L-22059, May 17, 1965); an order
of suspension from office relating to a

given term may not be the basis of
contempt with respect to ones (sic)
assumption of the same office under a
new term (Oliveros vs. Villaluz, G.R.
No. L-34636, May 30, 1971) and, the
Court should never remove a public
officer for acts done prior to his
present term of office. To do otherwise
would deprieve (sic) the people of their
right to elect their officer. When the
people have elected a man to office, it
must be assumed that they did this
with knowledge of his life and
character, and that they disregarded or
forgave his fault or misconduct (sic), if
he had been guilty if
any. (Aguinaldovs. Santos, et al., G.R.
No. 94115, August 21, 1992).
The
prosecution
moved
for
reconsideration[10] of the order, alleging that the
court had confused removal as a penalty in
administrative cases and the temporary removal
from office (or suspension) as a means of
preventing the public official, while the criminal
case against him is pending, from exerting
undue influence, intimidate (sic) witnesses which
may affect the outcome of the case; the former
is a penalty or sanction whereas the latter is a
mere procedural remedy. Accordingly, while a
re-elected
public
official
cannot
be
administratively punished by removing him from
office for offenses committed during his previous
term, said public official can be temporarily
removed to prevent him from wielding undue
influence which will definitely be a hindrance for
justice to take its natural course. The
prosecution then enumerated the cases decided
by this Court reiterating the rule that what a reelection of a public official obliterates are only
administrative, not criminal, liabilities, incurred
during previous terms.[11]
In his order of 3 August 1995, [12] respondent
denied the motion for reconsideration, thus:
There is no dispute that the

suspension sought by the prosecution
is premised upon the act charged
allegedly committed during the
accused [sic] previous term
as Barangay Chairman of Brgy. III-E.
San Pablo City, who was subsequently
re-elected as Barangay Chairman
again during the
last Barangay Election of May 9,
1994. Certainly, had not the accused
been re-elected the prosecution will
not file the instant motion to suspend
him as there is no legal basis or the
issue has become academic.
The instant case run [sic] parallel with
the case of Lizares vs. Hechanova, et
al., L-22059, May 17, 1966, 17 SCRA
58, wherein the Supreme Court
subscribed to the rule denying the right
to remove from office because of
misconduct during a prior term.
It is opined by the Court that
preventive suspension is applicable
only if there is [sic] administrative case
filed against a local official who is at
the same time criminally charged in
Court. At present, the records of the
Court shows [sic] that there is no
pending administrative case existing or
filed against the accused.
It was held in the concluding
paragraph of the decision by the
Honorable Supreme Court in
Lizares vs. Hechanova, et al., that
Since petitioner, having been duly reelected, is no longer amenable to
administrative sanctions for any acts
committed during his former tenure,
the determination whether the
respondent validly acted in imposing
upon him one months suspension for
act [sic] done during his previous term
as mayor is now merely of theoretical
interest.
Complainant then moved that respondent

inhibit himself from Criminal Case No. 26240. In
his order of 21 September 1995,[13] respondent
voluntarily inhibited himself. The case was
assigned to Judge Adelardo S. Escoses per
order of Executive Judge Bienvenido V. Reyes
of the Regional Trial Court of San Pablo City.
On 15 October 1996, complainant filed his
sworn letter-complaint with the Office of the
Court Administrator.
In his comment dated 14 February 1997,
filed in compliance with the resolution of this
Court of 27 January 1997, respondent asserted
that he had been continuously keeping abreast
of legal and jurisprudential development [sic] in
the law since he passed the 1955 Bar
Examinations; and that he issued the two
challenged orders only after due appreciation of
prevailing jurisprudence on the matter, citing
authorities in support thereof. He thus prayed for
dismissal of this case, arguing that to warrant a
finding of ignorance of law and abuse of
authority, the error must be so gross and patent
as to produce an inference of ignorance or bad
faith or that the judge knowingly rendered an
unjust decision.[14] He emphasized, likewise, that
the error had to be so grave and on so
fundamental a point as to warrant condemnation
of the judge as patently ignorant or negligent;
[15]
otherwise, to hold a judge administratively
accountable for every erroneous ruling or
decision he renders, assuming that he has
erred, would be nothing short of harassment and
that would be intolerable.[16]
Respondent further alleged that he earned
complainants ire after denying the latters Motion
for the Suspension of Barangay Chairman
Maghirang, which was filed only after Maghirang
was re-elected in 1994; and that complainant
made inconsistent claims, concretely, while in
his letter of 4 September 1995 requesting
respondent to inhibit from the case, complainant
declared that he believed in respondents
integrity, competence and dignity, after he
denied the request, complainant branded
respondent as a judge of poor caliber and

understanding of the law, very incompetent and
has no place in Court of Justice.
Finally, respondent Judge avowed that he
would not dare soil his judicial robe at this time,
for he had only three (3) years and nine (9)
months more before reaching the compulsory
age of retirement of seventy (70); and that for
the last 25 years as municipal judge in the seven
(7) towns of Laguna and as presiding judge of
the MTCC, San Pablo City, he had maintained
his integrity.
In compliance with the Courts resolution of
9 March 1998, the parties, by way of separate
letters, informed the Court that they agreed to
have this case decided on the basis of the
pleadings already filed, with respondent
explicitly specifying that only the complaint and
the comment thereon be considered.
The Office of the Court Administrator (OCA)
recommends that this Court hold respondent
liable for ignorance of the law and that he be
reprimanded with a warning that a repetition of
the same or similar acts in the future shall be
dealt with more severely. In support thereof, the
OCA makes the following findings and
conclusions:
The claim of respondent Judge that a
local official who is criminally charged
can be preventively suspended only if
there is an administrative case filed
against him is without basis. Section
13 of RA 3019 (Anti-Graft and Corrupt
Practices Act) states that:
Suspension and loss of
benefits Any incumbent public
officer against whom any
criminal prosecution under a
valid information under this Act
or under Title 7, Book II of the
Revised Penal Code or for any
offense involving fraud upon
government or public funds or
property whether as a simple

or as a complex offense and in
whatever stage of execution
and mode of participation, is
pending in court, shall be
suspended from office.
It is well settled that Section 13 of RA
3019 makes it mandatory for the
Sandiganbayan (or the Court) to
suspend any public officer against
whom a valid information charging
violation of this law, Book II, Title 7 of
the RPC, or any offense involving
fraud upon government or public funds
or property is filed in court. The court
trying a case has neither discretion nor
duty to determine whether preventive
suspension is required to prevent the
accused from using his office to
intimidate witnesses or frustrate his
prosecution or continue committing
malfeasance in office. All that is
required is for the court to make a
finding that the accused stands
charged under a valid information for
any of the above-described crimes for
the purpose of granting or denying the
sought for suspension. (Bolastig vs.
Sandiganbayan, G.R. No. 110503
[August 4, 1994], 235 SCRA 103).
In the same case, the Court held that
as applied to criminal prosecutions
under RA 3019, preventive suspension
will last for less than ninety (90) days
only if the case is decided within that
period; otherwise, it will continue for
ninety (90) days.
Barangay Chairman Benjamin
Maghirang was charged with Unlawful
Appointment, punishable under Article
244, Title 7, Book II of the Revised
Penal Code. Therefore, it was
mandatory on Judge Monzons part,
considering the Motion filed, to order
the suspension of Maghirang for a
maximum period of ninety (90)

days. This, he failed and refused to do.
Judge Monzons contention denying
complainants Motion for Suspension
because offenses committed during
the previous term (is) not a cause for
removal during the present term is
untenable. In the case of Rodolfo E.
Aguinaldo vs. Hon. Luis Santos and
Melvin Vargas, 212 SCRA 768, the
Court held that the rule is that a public
official cannot be removed for
administrative misconduct committed
during a prior term since his reelection to office operates as a
condonation of the officers previous
misconduct committed during a prior
term, to the extent of cutting off the
right to remove him therefor. The
foregoing rule, however, finds no
application to criminal cases x x x
(Underscoring supplied)
Likewise, it was specifically declared in
the case of Ingco vs. Sanchez, G.R.
No. L-23220, 18 December 1967, 21
SCRA 1292, that The ruling, therefore,
that when the people have elected a
man to office it must be assumed that
they did this with knowledge of his life
and character and that they
disregarded or forgave his faults or
misconduct if he had been guilty of
any refers only to an action for
removal from office and does not apply
to a criminal case. (Underscoring ours)
Clearly, even if the alleged unlawful
appointment was committed during
Maghirangs first term as barangay
chairman and the Motion for his
suspension was only filed in 1995
during his second term, his re-election
is not a bar to his suspension as the
suspension sought for is in connection
with a criminal case.
Respondents denial of complainants

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

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

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

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

Dabalos, 199 SCRA 48, ruled:
In the absence of fraud,
dishonesty or corruption, the
acts of a judge done in his
judicial capacity are not
subject to disciplinary action,
even though such acts may be
erroneous. But, while judges
should not be disciplined for
inefficiency on account merely
of occasional mistakes or
errors of judgment, yet, it is
highly imperative that they
should be conversant with
basic principles.
The ruling, therefore, that -- when the

people have elected a man to his
office it must be assumed that they did
this with knowledge of his life and
character and that they disregarded or
forgave his faults or misconduct if he
had been guilty of any -- refers only to
an action for removal from office and
does not apply to a criminal case,
because a crime is a public wrong
more atrocious in character than mere
misfeasance or malfeasance
committed by a public officer in the
discharge of his duties, and is injurious
not only to a person or group of
persons but to the State as a
whole. This must be the reason why

Article 89 of the Revised Penal Code,
which enumerates the grounds for
extinction of criminal liability, does not
include reelection to office as one of
them, at least insofar as a public
officer is concerned. Also, under the
Constitution, it is only the President
who may grant the pardon of a
criminal offense.
In Ingco, this Court did not yield to
petitioners insistence that he was benefited by
the ruling in Pascual v. Provincial Board of
Nueva Ecija[18] that a public officer should never
be removed for acts done prior to his present
term of office, as follows:
There is a whale of a difference
between the two cases. The basis of
the investigation which has been
commenced here, and which is sought
to be restrained, is a criminal
accusation the object of which is to
cause the indictment and punishment
of petitioner-appellant as a private
citizen; whereas in the cases cited, the
subject of the investigation was an
administrative charge against the
officers therein involved and its object
was merely to cause his suspension or
removal from public office. While the
criminal cases involves the character
of the mayor as a private citizen and
the People of the Philippines as a
community is a party to the case, an
administrative case involves only his
actuations as a public officer as [they]
affect the populace of the municipality
where he serves.[19]
Then on 20 June 1969, in Luciano v. The
Provincial Governor, et al.,[20] this Court likewise
categorically declared that criminal liabilities
incurred by an elective public official during his
previous term of office were not extinguished by
his re-election, and that Pascual v. Provincial
Governor and Lizares v. Hechanova referred
only to administrative liabilities committed during

the previous term of an elective official, thus:
1. The first problem we are to grapple
with is the legal effect of the reelection
of respondent municipal officials. Said
respondents would want to impress
upon us the fact that in the last general
elections of November 14,1967 the
Makati electorate reelected all of them,
except that Vice-Mayor Teotimo
Gealogo, a councilor prior thereto, was
elevated to vice-mayor. These
respondents contend that their
reelection erected a bar to their
removal from office for misconduct
committed prior to November 14,
1967. It is to be recalled that the acts
averred in the criminal information in
Criminal Case 18821 and for which
they were convicted allegedly occurred
on or about July 26, 1967, or prior to
the 1967 elections. They ground their
position on Pascual vs. Provincial
Board of Nueva Ecija, 106 Phil. 466,
and Lizares vs. Hechanova, 17 SCRA
58.
A circumspect view leaves us
unconvinced of the soundness of
respondents' position. The two cases
relied upon have laid down the precept
that a reelected public officer is no
longer amenable
to administrative sanctions for acts
committed during his former
tenure. But the present case rests on
an entirely different factual and legal
setting. We are not here confronted
with administrative charges to which
the two cited cases refer. Here
involved is a criminal prosecution
under a special statute, the Anti-Graft
and Corrupt Practices Act (Republic
Act 3019).
Then again, on 30 May 1974, in Oliveros v.
Villaluz,[21] this Court held:
I
The first question presented for
determination is whether a criminal
offense for violation of Republic Act
3019 committed by an elective officer
during one term may be the basis of
his suspension in a subsequent term
in the event of his reelection to office.
Petitioner concedes that "the power
and authority of respondent judge to
continue trying the criminal case
against petitioner may not in any way
be affected by the fact of petitioner's
reelection," but contends that "said
respondent's power to preventively
suspend petitioner under section 13 of
Republic Act 3019 became
inefficacious upon petitioner's
reelection" arguing that the power of
the courts cannot be placed over that
of sovereign and supreme people who
ordained his return to office.
Petitioner's reliance on the loose
language used in Pascual vs.
Provincial Board of Nueva Ecija that
"each term is separate from other
terms and that the reelection to office
operates as a condonation of the
officer's previous misconduct to the
extent of cutting off the right to remove
him therefor" is misplaced.
The Court has in subsequent cases
made it clear that the Pascual ruling
(which dealt with administrative
liability) applies exclusively
to administrative and not
to criminal liability and
sanctions. Thus, in Ingco vs.
Sanchezthe Court ruled that
the reelection of a public officer for a
new term does not in any manner wipe
out the criminal liability incurred by him
in a previous term.
In Luciano vs. Provincial Governor the

Court stressed that the cases
of Pascual and Lizares are authority
for the precept that "a reelected public
officer is no longer amenable
to administrative sanctions for acts
committed during his former tenure"
but that as to criminal prosecutions,
particularly, for violations of the AntiGraft and Corrupt Practices Act, as in
the case at bar, the same are not
barred by reelection of the public
officer, since,inter alia, one of the
penalties attached to the offense is
perpetual disqualification from public
office and it "is patently offensive to
the objectives and the letter of the
Anti-Graft and Corrupt Practice Act . . .
that an official may amass wealth thru
graft and corrupt practices and
thereafter use the same to purchase
reelection and thereby launder his evil
acts."
Punishment for a crime is a vindication
for an offense against the State and
the body politic. The small segment of
the national electorate that constitutes
the electorate of the municipality of
Antipolo has no power to condone a
crime against the public justice of the
State and the entire body
politic. Reelection to public office is not
provided for in Article 89 of the
Revised Penal Code as a mode of
extinguishing criminal liability incurred
by a public officer prior to his
reelection. On the contrary, Article 9 of
the Anti-Graft Act imposes as one of
the penalties in case of conviction
perpetual disqualification from public
office and Article 30 of the Revised
Penal Code declares that such penalty
of perpetual disqualification entails
"the deprivation of the public offices
and employments which the offender
may have held, even if conferred by

popular election."
It is manifest then, that
such condonation of an officer's fault
or misconduct during a
previous expired term by virtue of his
reelection to office for a new term can
be deemed to apply only to
his administrative and not to
hiscriminal guilt. As succinctly stated in
then Solicitor General (now Associate
Justice) Felix Q. Antonio's
memorandum for the State, "to hold
that petitioner's reelection erased his
criminal liability would in effect transfer
the determination of the criminal
culpability of an erring official from the
court to which it was lodged by law
into the changing and transient whim
and caprice of the electorate. This
cannot be so, for while his constituents
may condone the misdeed of a corrupt
official by returning him back to office,
a criminal action initiated against the
latter can only be heard and tried by a
court of justice, his nefarious act
having been committed against the
very State whose laws he had sworn
to faithfully obey and uphold. A
contrary rule would erode the very
system upon which our government is
based, which is one of laws and not of
men."
Finally, on 21 August 1992, in Aguinaldo v.
Santos,[22] this Court stated:
Clearly then, the rule is that a public
official cannot be removed from
administrative misconduct committed
during a prior term, since his reelection to office operates as a
condonation of the officers previous
misconduct to the extent of cutting off
the right to remove him therefor. The
foregoing rule, however, finds no
application to criminal cases pending
against petitioner for acts he may have

committed during the failed coup.
Thus far, no ruling to the contrary has even
rippled the doctrine enunciated in the abovementioned cases. If respondent has truly been
continuously keeping abreast of legal and
jurisprudential development [sic] in the law, it
was impossible for him to have missed or
misread these cases. What detracts from his
claim of assiduity is the fact that he even cited
the cases of Oliveros v. Villaluz and Aguinaldo v.
Santos in support of his 30 June 1995
order. What is then evident is that respondent
either did not thoroughly read these cases or
that he simply miscomprehended them. The
latter, of course, would only manifest either
incompetence, since both cases were written in
plain and simple language thereby foreclosing
any possibility of misunderstanding or confusion;
or deliberate disregard of a long settled doctrine
pronounced by this Court.
While diligence in keeping up-to-date with
the decisions of this Court is a commendable
virtue of judges -- and, of course, members of
the Bar -- comprehending the decisions is a
different matter, for it is in that area where ones
competence may then be put to the test and
proven. Thus, it has been said that a judge is
called upon to exhibit more than just a cursory
acquaintance with statutes and procedural rules;
it is imperative that he be conversant with basic
legal principles and aware of well-settled and
authoritative doctrines.[23] He should strive for
excellence, exceeded only by his passion for
truth, to the end that he be the personification of
justice and the Rule of Law.[24]
Needless to state, respondent was, in this
instance, wanting in the desired level of mastery
of a revered doctrine on a simple issue.
On the other hand, if respondent judge
deliberately disregarded the doctrine laid down
in Ingco v. Sanchez and reiterated in the
succeeding cases of Luciano v. Provincial
Governor, Oliveros v. Villaluz andAguinaldo v.
Santos, it may then be said that he simply

wished to enjoy the privilege of overruling this
Courts doctrinal pronouncements. On this point,
and as a reminder to all judges, it is apropos to
quote what this Court said sixty-one years ago
in People v. Vera:[25]
As already observed by this Court in Shioji vs.
Harvey [1922], 43 Phil., 333, 337), and
reiterated in subsequent cases if each and every
Court of First Instance could enjoy the privilege
of overruling decisions of the Supreme Court,
there would be no end to litigation, and judicial
chaos would result. A becoming modesty of
inferior courts demands conscious realization of
the position that they occupy in the interrelation
and operation of the integrated judicial system of
the nation.
Likewise, in Luzon Stevedoring Corp. v. Court of
Appeals:[26]
The spirit and initiative and
independence on the part of men of
the robe may at times be
commendable, but certainly not when
this Court, not once but at least four
times, had indicated what the rule
should be. We had spoken clearly and
unequivocally. There was no ambiguity
in what we said. Our meaning was
clear and unmistakable. We did take
pains to explain why it must be
thus. We were within our power in
doing so. It would not be too much to
expect, then, that tribunals in the lower
rungs of the judiciary would at the very
least, take notice and yield
deference. Justice Laurel had
indicated in terms too clear for
misinterpretation what is expected of
them.Thus: A becoming modesty of
inferior court[s] demands conscious
realization of the position that they
occupy in the interrelation and
operation of the integrated judicial
system of the nation.[27] In the

constitutional sense, respondent Court
is not excluded from such a
category. The grave abuse of
discretion is thus manifest.
In Caram Resources Corp. v. Contreras,
this Court affirmed that by tradition and in our
system of judicial administration, this Court has
the last word on what the law is, and that its
decisions
applying
or
interpreting
the
Constitution and laws form part of this countrys
legal system.[29] All other courts should then be
guided by the decisions of this Court. To judges
who find it difficult to do so, Vivo v.
Cloribel[30]warned:
[28]
Now, if a Judge of a lower Court feels,

in the fulfillment of his mission of
deciding cases, that the application of
a doctrine promulgated by this
Superiority is against his way of
reasoning, or against his conscience,
he may state his opinion on the matter,
but rather than disposing of the case in
accordance with his personal views he
must first think that it is his duty to
apply the law as interpreted by the
Highest Court of the Land, and that
any deviation from the principle laid
down by the latter would unavoidably
cause, as a sequel, unnecessary
inconveniences, delays and expenses
to the litigants. And if despite of what
is here said, a Judge, still believes that
he cannot follow Our rulings, then he
has no other alternative than to place
himself in the position that he could
properly avoid the duty of having to
render judgment on the case
concerned (Art. 9, C.C.), and he has
only one legal way to do that.
Finally, the last sentence of Canon 18 of the
Canons of Judicial Ethics directs a judge to
administer his office with due regard to the
integrity of the system of the law itself,
remembering that he is not a depository of
arbitrary power, but a judge under the sanction

of law.
That having been said, we cannot but
conclude that the recommended penalty of
reprimand is not commensurate with the
misdeed committed. A fine of P5,000.00, with a
warning that a commission of similar acts in the
future shall be dealt with more severely is, at the
very least, appropriate, considering respondent
is due for compulsory retirement on 29
November 2000 and that this is his first offense.
WHEREFORE, for incompetence as a
result of ignorance of a settled doctrine
interpreting a law, or deliberate disregard of
such doctrine in violation of Canon 18 of the
Canons of Judicial Ethics, respondent Judge
Iluminado C. Monzon is hereby FINED in the
amount of Five Thousand Pesos (P5,000.00)
and warned that the commission of similar acts
in the future shall be dealt with more severely.
SO ORDERED.
Bellosillo,
Vitug,
Panganiban, and Quisumbing, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. 100874 February 13, 1992

GOVERNOR BENJAMIN I.
ESPIRITU, petitioner,
vs.
NELSON B. MELGAR and HON. JUDGE
MARCIANO T. VIROLA, respondents.
Luna, Sison & Manas for petitioner.
Panganiban, Benitez, Parlade, Africa &
Barinaga Law Offices for private respondent.
GRIO-AQUINO, J.:
The issue in this special civil action
of certiorari and prohibition is the jurisdiction of
respondent Judge of the Regional Trial Court of
Oriental Mindoro to stop the provincial governor
from placing a municipal mayor under preventive
suspension pending the investigation of
administrative charges against the latter.
On April 11, 1991, one Ramir Garing of Naujan,
Oriental Mindoro, filed a sworn letter-complaint
with Secretary Luis Santos of the Department of
Interior and Local Government charging Mayor
Nelson Melgar of Naujan, Oriental Mindoro, with
grave misconduct, oppression, abuse of
authority, culpable violation of the Constitution
and conduct prejudicial to the best interest of the
public service. The charge against Mayor Melgar
reads:
On or about 4:30 in the

afternoon of March 26, 1991, in
the Municipality of Naujan,
Oriental Mindoro, the
aforementioned person, Nelson
Melgar, being the Municipal
Mayor of Naujan, Oriental
Mindoro, with abuse of official
function, did then and there
wilfully, unlawfully and
feloniously attack, assault and
use personal violence upon the
person of Ramir Garing, by then
and there boxing and kicking
thereby inflicting upon the latter
physical injuries on different
parts of his body and not being
contented ordered his arrest
and detention in the municipal
jail of Naujan, Oriental Mindoro
without filing any charges until
he was released the following
day March 27, 1991 at about
8:30 in the morning. (p.
30, Rollo.)
An identical letter-complaint was filed by Garing
with the Provincial Governor of Oriental Mindoro
(herein petitioner Governor Benjamin I. Espiritu)
accusing Mayor Melgar of the same violations of
law and requesting that the mayor be placed
under preventive suspension pending
investigation of the charges.
A third complaint filed by Garing with the
Presidential Action Center, Office of the
President of the Philippines, was forwarded to
Governor Espiritu with a request for prompt
action (Annex "C", p. 36, Rollo).
On April 22, 1991, the Sangguniang
Panlalawigan of Oriental Mindoro required
Mayor Melgar to answer the complaint, which
was docketed as Adm. Case No. 91-01 (Annex
"D", p. 37, Rollo).
On May 22, 1991, Mayor Melgar submitted his

answer in which he recounted the events of
March 26, 1991 that led to the filing of Garing's
complaint against him:
At around 6:30 in the evening of
26 March 1991, while I was in
the middle of my speech at the
Naujan Public Gymnasium, this
Municipality, where the Jose L.
Basa Memorial graduation
ceremonies were then being
held, a prolonged but
nonetheless loud and
intermittent clapping suddenly
erupted from one of the
numerous people then in
attendance. I paused. The
handclapping stopped. I
resumed my speech. The fellow
started all over again.
The audience was visibly
disturbed and I found myself
unable to proceed not because I
could not collect my thoughts
but because I felt the solemnity
of the occasion had irreversibly
been shattered by a rudeness
so totally unexpected.
I ended my speech and
instructed a policeman to
investigate the culprit who
turned out to be Ramir Garing.
He was drunk. I did not hurt him
as can be gathered from his
medical certificate (Annex "B" to
the complaint) which palpably
contradicts his affidavit (Annex
"A" to the complaint).
I was informed that said Ramir
Garing was momentarily placed
in custody for his own protection

because he was drunk. An open
knife (balisong) was taken from
him. I was likewise informed that
after he had sobered up, he was
told to go home, but he refused
to go and only did so the
following morning.
respondent Mayor be preventively suspended

for forty-five (45) days pending the investigation
of the administrative complaint (Annex "H, p.
49, Rollo).
Certainly under the

circumstances, charges could
have been filed against Ramir
Garing under the provisions of
Article 153 of the Revised Penal
Code and also for possession
and concealment of a deadly
weapon. Still, as a local Chief
Executive, who to most people
represent (sic) a sovereign
government, and who, at the
cost of foregoing personal
vindication must avoid any
appearance of vindictiveness, I
instructed my policemen not to
file charges against him.
On June 6, 1991, the Sangguniang

Panlalawigan denied the motion to dismiss (Res.
No. 72, p. 62 Rollo; Annex "L" to the Petition).
Attached hereto for your further

reference are the joint affidavit
of teachers of the J.L. Basa
Memorial School as Annex "A",
the joint affidavit of the
Municipal Jailer and the Police
Investigator as Annex "B", the
affidavit of Fireman 1st Class
Roy Lomio as Annex "C", and a
xerox copy of the pages in the
Police Blotter where the incident
in question was entered. (pp.
40-41, Rollo).
After evaluating the complaint and its supporting
documents, as well as the Mayor's answer and
the affidavits of his witnesses, the Sangguniang
Panlalawigan of Oriental Mindoro passed
Resolution No. 55 on May 9, 1991,
recommending to the Provincial Governor that
On May 23, 1991, Mayor Melgar filed a motion

to dismiss the administrative complaint (Annex
"I", pp. 51-55,Rollo). It was opposed by Garing.
Meanwhile, pursuant to the recommendation of

the Sangguniang Panlalawigan in its Resolution
No. 55, Governor Espiritu placed Mayor Melgar
under preventive suspension on May 28, 1991
on the ground that:
. . . there is reasonable ground
to believe that respondent
Mayor Nelson B. Melgar of
Naujan, Oriental Mindoro, has
committed the acts stated in the
complaint and affidavit of Ramir
Garing and corroborated by the
affidavits (Exhibits A, C & D) of
his witnesses, namely: Lydia V.
Garing, Nelson Tabor and Javier
Dagdagan, all of Poblacion II,
Naujan, Oriental Mindoro. (p.
63, Rollo)
On June 3, 1991, Mayor Melgar received the
Order of Suspension (Annex "M", p. 63, Rollo).
He forthwith filed a "Petition for Certiorari with
Preliminary Injunction with prayer for Restraining
Order" in the Regional Trial Court of Oriental
Mindoro (Spl. Civil Action No. R-5003) alleging
that "the order of suspension was an arrogant,
despotic and arbitrary abuse of power" by the
Governor (pp. 68-69, Rollo).
On June 24, 1991, RTC Judge Virola issued a
writ of preliminary injunction enjoining Governor
Espiritu from implementing the Order of

suspension against Mayor Melgar for:
The Court is more inclined to
believe the answer under oath
of the respondent and the sworn
statements of his witnesses
attached to the Answer in the
administrative case than the
complaint under oath in the
administrative case which are
the evidence to be considered in
determining whether or not the
order of preventive suspension
was issued in accordance with
law. There is no reason to doubt
the sworn statements of the
numerous public school
teachers and members of the
PNP. Besides, the medical
certificate issued in connection
with the treatment of the
complainant in the
administrative case tends to
corroborate the theory of the
respondent and contradict that
of the complaint in the
administrative case. The
abrasions on the right arm of the
complainant in the
administrative case tend to
show that said complainant was
held tightly by the hands by the
PNP because he was then
drunk, in possession of
a balisong knife and causing
serious disturbance and not
because he was boxed and
kicked by herein petitioner. (pp.
75-76, Rollo.)
Governor Espiritu filed a motion to dismiss
and/or for reconsideration which Judge Virola
denied on July 16, 1991. Hence, this petition
for certiorari and prohibition.
Without giving due course to the petition, we

required the private respondent to comment and
we issued a Temporary Restraining Order
commanding respondent Judge to cease and
desist from further proceeding in Special Civil
Action No. R-5003 (pp. 106-107, Rollo). On
August 22, 1991, Mayor Melgar filed an "Urgent
Motion to Lift Temporary Restraining Order"
which the petitioner opposed and the Court
denied (p. 127-155, Rollo).
Petitioner submits that respondent Judge Virola
acted without jurisdiction or with grave abuse of
discretion in issuing: (1) the writ of preliminary
injunction restraining Governor Espiritu from
implementing the order of preventive
suspension, and (2) in denying petitioner's
motion to dismiss Special Civil Action No. R5003, for:
a Petitioner, as Provincial
Governor, is empowered by
Section 63 of the Local
Government Code to place an
elective municipal official under
preventive suspension pending
decision of an administrative
case against the elective
municipal official:
b) Petitioner did not commit a
grave abuse of discretion in
placing respondent mayor under
preventive suspension; if at all,
his error was an error of
judgment which is not
correctible bycertiorari;
c) By express provision of
Section 61 of the Local
Government Code, the
Sangguniang Panlalawigan has
jurisdiction over complaints
against any elective municipal
official; on the other hand,
Section 19(c) of the Judiciary
Reorganization Act of 1980

withdraws from regional trial
courts jurisdiction over cases
within the exclusive jurisdiction
of any person, tribunal or body
exercising judicial or quasijudicial functions. Thus, by
practically deciding the
administrative case on the
merits, the respondent court
acted without jurisdiction; and
d) Respondent Mayor had a
remedy of appeal under Section
66 of the Local Government
Code.
Section 63, Chapter IV of the Local Government
Code provides:
the safety and integrity of the

records and other evidence. In
all cases, preventive suspension
shall not extend beyond sixty
days after the start of said
suspension.
(3) At the expiration of sixtydays, the suspended official
shall be deemed reinstated in
office without prejudice to the
continuation of the proceedings
against him until its termination.
However, if the delay in the
proceedings of the case is due
to his fault, neglect or request,
the time of the delay shall not be
counted in computing the time
of the suspension.
Sec. 63. Preventive

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

Mindoro is authorized by law to preventively
suspend the municipal mayor of Naujan at
anytime after the issues had been joined and
any of the following grounds were shown to
exist:
(2) Preventive suspension may

be imposed at anytime after the
issues are joined, when there is
reasonable ground to believe
that the respondent has
committed the act or acts
complained of, when the
evidence of culpability is strong,
when the gravity of the offense
so warrants, or when the
continuance in office of the
respondent could influence the
witnesses or pose a threat to
3. When the gravity of the offense so warrants;

or
1. When there is reasonable ground to believe

that the respondent has committed the act or
acts complained of;
2. When the evidence of culpability is strong;
4. When the continuance in office of the

respondent could influence the witnesses or
pose a threat to the safety and integrity of the
records and other evidence.
There is nothing improper in suspending an
officer before the charges against him are heard
and before he is given an opportunity to prove
his innocence (Nera vs. Garcia and Elicao, 106
Phil. 1031). Preventive suspension is allowed so

that the respondent may not hamper the normal
course of the investigation through the use of his
influence and authority over possible witnesses
(Lacson vs. Roque, 92 Phil. 456).
Since respondent mayor believed that his
preventive suspension was unjustified and
politically motivated, he should have sought
relief first from the Secretary of Interior and
Local Government, not from the courts. Mayor
Melgar's direct recourse to the courts without
exhausting administrative remedies was
premature (Aboitiz & Co. Inc. vs. Collector of
Customs, 83 SCRA 265; Garcia vs. Teehankee,
27 SCRA 937; Manuel vs. Jimenez, 17 SCRA
55; Bongcawil vs. Provincial Board of Lanao del
Norte, 10 SCRA 327; The Phil Veterans Affairs
Office vs. Farias, et al., AC-G.R. SP No. 05937,
July 5, 1985; Bonafe vs. Zurbano, 131 SCRA 9).
The regional trial court had no jurisdiction over
Special Civil Action No. R-5003 and gravely
abused its discretion in refusing to dismiss the
case.
There may exist honest differences of opinion
with regard to the seriousness of the charges, or
as to whether they warrant disciplinary action.
However, as a general rule, the office or body
that is invested with the power of removal or
suspension should be the sole judge of the
necessity and sufficiency of the cause ( 17
R.C.L. Sec. 233 cited in Attorney General vs.
Doherty, 13 Am. Rep. 132). So, unless a flagrant
abuse of the exercise of that power is shown,
public policy and a becoming regard for the
principle of separation of powers demand that
the action of said officer or body should be left
undisturbed.
However, in this particular case, since the 60day preventive suspension of Mayor Melgar was
maintained by the Temporary Restraining Order
which we issued on August 6, 1991, and
therefore has already been served, he is
deemed reinstated in office without prejudice to
the continuation of the administrative

investigation of the charges against him (Sec.
63, subpar. 3, Local Government Code).
WHEREFORE, the petition for certiorari and
prohibition is granted. The writ of preliminary
injunction dated June 24, 1991 in Special Civil
Action No. R-5003 is hereby annulled and set
aside. Said Special Civil Action No. R-5003 is
dismissed.
SO ORDERED.

SUPREME COURT
EN BANC
G.R. NO. 154098 July 27, 2005
JOSE C. MIRANDA, Petitioners,
vs.
HON. SANDIGANBAYAN, OFFICE OF THE
OMBUDSMAN, SEC. JOSE D. LINA, in his
capacity as Secretary of the DILG,* and
FAUSTINO DY, JR. in his capacity as
Governor of the Province of Isabela,
Respondents.
DECISION
PUNO, J.:
First, the facts.
The Ombudsman placed petitioner Jose C.
Miranda (Mayor Miranda) then the mayor of
Santiago City, Isabela, under preventive
suspension for six months from 25 July 1997 to
25 January 1998 for alleged violations of
Republic Act No. 6713, otherwise known as the
Code of Conduct and Ethical Standards for
Public Officials and Employees.1 Subsequently,
then Vice Mayor Amelita S. Navarro (Vice Mayor
Navarro) filed a Complaint with the Office of the
Ombudsman (Ombudsman) on 1 December
1997 which was docketed as OMB-1-972312.2 In the said Complaint, Vice Mayor
Navarro alleged that Mayor Miranda committed
the following acts on 24 November 1997 despite
the continuing effectivity of the Ombudsmans
preventive suspension order: (a) issued a
memorandum addressed to Navarro advising
her that he was assuming his position as City
Mayor;3 (b) gave directives to the heads of
offices and other employees;4 (c) issued Office
Order No. 11-021 which authorized certain
persons to start work;5 and (d) insisted on
performing the functions and duties of Mayor

despite Navarrros requests to desist from doing
so without a valid court order and in spite of the
order of Department of Interior and Local
Government (DILG) Undersecretary Manuel
Sanchez directing him to cease from
reassuming the position.6 Vice Mayor Navarro
contended that Mayor Miranda committed the
felony of usurpation of authority or official
functions under Article 177 of the Revised Penal
Code (RPC).7
In his counter-affidavit, Mayor Miranda asserted
that he reassumed office on the advice of his
lawyer and in good faith.8 He contended that
under Section 63(b) of the Local Government
Code, local elective officials could not be
preventively suspended for a period beyond 60
days.9 He also averred that, on the day he
reassumed office, he received a memorandum
from DILG Undersecretary Manuel Sanchez
instructing him to vacate his office and he
immediately complied with the same.10 Notably,
Mayor Mirandas counter-affidavit also stated
that he left the mayoralty post after "coercion" by
the Philippine National Police.11
On 28 October 1998, the Ombudsman filed with
the Sandiganbayan an Information against
Mayor Miranda for violation of Article 177 of the
RPC, penalizing usurpation of authority. On 20
November 1998, the Sandiganbayan ordered
the Office of Special Prosecutor to conduct a
reinvestigation of the case in light of the
manifestations made by prosecution and
defense counsel.12 After reinvestigation, Special
Prosecution Officer Rodrigo V. Coquia (Coquia)
recommended the dismissal of the case in a
Resolution dated 14 September 2000.13 Coquia
held that Miranda reassumed his office in "good
faith" and on "mistake of fact" due to the "difficult
questions of law" involved.14
Then Ombudsman Aniano A. Desierto
(Ombudsman Desierto) referred Coquias
resolution to the Ombudsmans Chief Legal
Counsel for review. The Chief Legal Counsel

disagreed with Coquias findings and
recommended the filing of the case against
Mayor Miranda.15 He pointed out that Mayor
Mirandas invocation of good faith was belied by
the fact that he received a memorandum from
the DILG informing him that his view of the
preventive suspension period was untenable
and that he should serve out its remaining
period.16 He further noted that Miranda violated
the orders of both the Ombudsman and the
DILG.17 Ombudsman Desierto adopted the Chief
Legal Counsels recommendation,18 and the
case was re-raffled to Special Prosecution
Officer Evelyn T. Lucero.Subsequently, the
prosecution filed an amended Information
with the Sandiganbayan,19 to which the
petitioner interposed a negative plea.20
On 28 November 2001, the prosecution filed
before the Sandiganbayan a motion to
suspend Mayor Miranda pendente lite based
on Section 13 of Republic Act No. 3019 (R.A.
No. 3019), otherwise known as the Anti-Graft
and Corrupt Practices Act.21 Miranda opposed
the motion on the ground that the offense of
usurpation of authority or official functions under
Article 177 of the RPC is not embraced by
Section 13 of R.A. No. 3019 which only
contemplates offenses enumerated under R.A.
No. 3019, Title VII, Book II of the RPC or which
involve "fraud upon government or public funds
or property."22
In a Resolution dated 4 February 2002, the
Sandiganbayan preventively suspended
Mayor Miranda from office for 90 days.23 The
anti-graft court held that a violation of Article 177
of the RPC involves fraud "which in a general
sense is deemed to comprise anything
calculated to deceive, including all acts,
omissions, and concealment involving a breach
of legal or equitable duty, trust or confidence
justly reposed, resulting in damage to another or
by which an undue and unconscious advantage
is taken of another."24 It further ruled that
Mirandas act fell within the catch-all provision "x

x x or for any offense involving fraud upon
government."25 Mirandas motion for
reconsideration was denied in the
Sandiganbayans Resolution dated 17 June
2002.26 Hence, the present petition assailing
the Sandiganbayans orders of preventive
suspension. The petitioner contends that the
Sandiganbayan gravely abused its discretion
when it preventively suspended him on a ground
not authorized by law and raises the following
issues: (1) whether Section 13 of R.A. No. 3019
applies only to fraudulent acts involving public
funds or property; and (2) whether the crime of
usurpation of authority or official functions
involves "fraud upon government or public funds
or property" found in Section 13 of R.A. No.
3019.
We rule in the negative.
First. Section 13 of R.A. No. 3019, as amended,
provides:
Section 13. Suspension and loss of benefits.
Any incumbent public officer against whom any
criminal prosecution under a valid information
under this Act or under Title 7, Book II of the
Revised Penal Code or for any offense involving
fraud upon government or public funds or
property whether as a simple or as a complex
offense and in whatever stage of execution and
mode of participation, is pending in court, shall
be suspended from office. Should he be
convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but
if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits
which he failed to receive during suspension,
unless in the meantime administrative
proceedings have been filed against him.
In the event that such convicted officer, who may
have already been separated from the service,
has already received such benefits he shall be
liable to restitute the same to the Government.
The Sandiganbayan properly construed Section

13 of R.A. No. 3019 as covering two types of
offenses: (1) any offense involving fraud on the
government; and (2) any offense involving public
funds or property. Contrary to the submission of
the petitioner, nothing in R.A. No. 3019 evinces
any legislative intent to limit Section 13 only to
acts involving fraud on public funds or property.
The phrase "any offense involving fraud upon
government or public funds or property" is clear
and categorical. To limit the use of "government"
as an adjective that qualifies "funds" is baseless.
The word "public" precedes "funds" and
distinguishes the same from private funds. To
qualify further "public funds" as "government"
funds, as petitioner claims is the laws intent, is
plainly superfluous. We are bound by the rule
that a statute should be construed reasonably
with reference to its controlling purpose and its
provisions should not be given a meaning that is
inconsistent with its scope and object. R.A. No.
3019, commonly known as the Anti-Graft and
Corrupt Practices Act, should be read to protect
the State from fraud by its own officials.
Second. We further hold that the
Sandiganbayan did not gravely abuse its
discretion when it ruled that petitioners act fell
within the catch-all provision "x x x or for any
offense involving fraud upon government. The
term "fraud" is defined, viz.:
An instance or an act of trickery or deceit esp.
when involving misrepresentation: an act of
deluding27
It is obvious to the eyes that the phrase "fraud
upon government" means "any instance or act of
trickery or deceit against the government." It
cannot be read restrictively so as to be
equivalent to malversation of funds as this is
covered by the preceding phrase "any offense
involving . . . public funds or property." It ought to
follow that "fraud upon government" was
committed when the petitioner allegedly
assumed the duties and performed acts
pertaining to the Office of the Mayor under

pretense of official position.
The dissent opines that fraud upon government
is not necessarily an essential element of the
crime of usurpation of authority. The submission
may be correct as a general proposition but
general propositions hardly decide a case. In the
case at bar, the issue is whether the alleged acts
of usurpation of authority committed by the
petitioner involve "fraud upon government or
public funds or property" as the term is
understood under Section 13 of R.A. No. 3019.
In ruling in the affirmative, the Sandiganbayan
held:
Let us take a look at the acts complained of as
alleged in the Amended Information dated July
27, 2001:
x x x the above-named accused, a public officer,
being then the elected City Mayor of Santiago
City, while under preventive suspension did then
and there, willfully, unlawfully and knowingly and
under pretense of official position, assume the
duties and functions of the Office of the Mayor,
issue directives and memoranda, and appoint
certain persons to various positions in the City
Government and perform acts pertaining to an
office to which he knowingly was deprived of.
Moreover, in private complainant Amelita S.
Navarros Affidavit of Complaint dated November
26, 1997, she said: "x x x, he proceeded to his
office and started giving directives to the various
heads of office and other employees, the
unexpected acts of respondents had caused
serious disruptions in the day to day affairs of
the city government."
Accuseds acts therefore in assuming the duties
and function of the Office of the Mayor despite
his suspension from said office resulted to a
clear disruption of office and worst, a chaotic
situation in the affairs of the government as the
employees, as well as the public, suffered

confusion as to who is the head of the Office.
This actuation of herein accused constitutes
fraud which in general sense is deemed to
comprise anything calculated to deceive,
including all acts, omissions, and concealment
involving a breach of legal or equitable duty,
trust or confidence justly reposed, resulting in
damage to another or by which an undue and
unconscious advantage is taken of another (37
Am. Jur. 2d 19 at Sec. 19). Hence, the act
complained of against accused herein falls in the
catchall provision "x x x or for any offense
involving fraud upon government x x x."
Moreover, the firmly entrenched doctrine which
was held by the Highest Tribunal in a long line of
cases is that "x x x under Section 13 of the AntiGraft and Corrupt Practices Law, the suspension
of a public officer is mandatory after a
determination has been made of the validity of
the Information x x x." In fact, as early as 1984 in
the case of Bayot v. Sandiganbayan, 128
SCRA 383, the Honorable Supreme Court
speaking thru Justice Relova said:
Once the information is found to be sufficient in
form and substance, then the Court must issue
the order of suspension as a matter of course.
There are no ifs and buts about it. x x x
After a perusal of the amended information
herein, it clearly appeared that the same was
apparently valid for it conforms to the
requirements laid down under Section 6[,] Rule
110 of the Rules of Court. In fact, accused
herein interposed a negative plea thereto
thereby tacitly acquiescing to the validity of the
said Information.
There being no valid ground raised by the
accused sufficient enough to warrant denial of
the prayer of the prosecution in its Motion to
Suspend Accused Pende[n]te Lite (sic) and in
consonance with the imperious mandate of the
law, the said prayer should be accorded

affirmative relief.28 (Citations omitted)
In denying petitioners Motion for
Reconsideration, the Sandiganbayan further
held:
Accused in his motion substantially alleged that
Article 177 (Usurpation of Authority and Official
Function) of the Revised Penal Code, which is
the charge against herein accused, does not fall
under the catchall provision of Section 13 of
Republic Act No. 3019 "x x x or for any offense
involving fraud upon government or public funds
or property x x x." He said that the acts
complained of as alleged in the Information do
not constitute fraud upon government or public
fund or property.
Though the argument by the accused seems
plausible, this Court is still inclined to uphold its
ruling suspending accused pendente lite. The
accused argued that the fraud contemplated in
the law is one involving (1) government funds or
property; and (2) public funds or property. This is
precisely availing in the case at bar. The
Information in herein case, says: "x x x accused
x x x assume the duties and functions of the
Office of the Mayor, issue directives and
memoranda and appoint certain persons to
various positions in the city government, and
perform acts pertaining to an office to which he
knowingly was deprived of." When accusedmayor appointed persons in various positions,
he indirectly dealt with the citys funds as those
persons appointed will be given their respective
salaries, benefits and other monetary
consideration which will be paid wholly or mainly
out of the citys funds. Additionally, when he
performed acts pertaining to the Office of the
Mayor, i.e.[,] approval of vouchers, and payment
of other expenses which is subject to proof, he
likewise indirectly dealt with the funds of the city.
Moreover, as the prosecution said, "when
accused Miranda, willfully and knowingly, during
the effectivity of his suspension barged into the

City Hall, issued orders and directives and
performed functions as City Mayor, he was
sending the unwritten yet visible message that
he was authorized to do and function as such. x
x x." We hold this as a fraud upon government
resulting in the chaos or confusion albeit
temporary, as the employees would be in a
quandary whom to follow or obey.
Hence, considering that the charge herein
evidently falls within the compass of the
suspension provision invoked by the
prosecution, there is no cogent reason for this
Court to depart from its previous ruling. Further,
considering the mandatory tenor of Section 13[,]
Republic Act No. 3019, the motion for
reconsideration is hereby denied.
Accordingly, the Motion for Reconsideration is
denied for lack of merit.29
This Court finds no reason to disagree with
the Sandiganbayan. Its conclusions are amply
supported by the record. Additionally, the issue
of whether petitioner committed fraud upon the
government or public funds or property is
essentially factual. In a special civil action
for certiorari, the only question that may be
raised is whether or not the respondent acted
without or in excess of jurisdiction or with grave
abuse of discretion. The Court cannot correct
errors of fact or law which do not amount to
grave abuse of discretion.30
The dissenting opinion, however, says there was
no fraud. It holds that "it would be fraud of public
funds if these public officials just collected their
salaries without rendering service to the
government." It further asserts that "fraud upon
government" must be read so as to require that
malversation of funds was committed.31 This is
acomplete volte face from its claim that Section
13 of R.A. No. 3019 covers two types of
offenses: (1) any offense involving fraud upon
the government; and (2) any offense
involving public funds or property.32What is

more, adopting the dissenting opinions line of
reasoning would render superfluous the phrase
"fraud upon government" as malversation is
subsumed by "any offense involving public funds
or property."
Third. We are not a bit persuaded by the
posture of the petitioner that he reassumed
office under an honest belief that he was no
longer under preventive
suspension. Petitioners pretense cannot
stand scrutiny.Petitioners own affidavit
states:33
8. That on November 24, 1997, at that time, (sic)
I had already served my single preventive
suspension for a total number of ONE
HUNDRED TWENTY (120) days more or less
counted from July 24, 1997, which far exceeds
the allowable period of 60 days as maximum
preventive suspension, for a single suspension
for a local elective official like me as provided for
under the Local Government Code of 1991 (sic)
on the same date, November 24, 1997 in good
faith and upon the advise (sic) of my lawyers, I
notified both the Ombudsman and DILG of my
intention to assume my office as the duly elected
City Mayor of Santiago City;
9. That earlier on November 24, 1997 I started to
reassume my office and functions as City Mayor
of Santiago City; surprisingly on the same date,
November 24, 1997 I received a memorandum
issued by Undersecretary Manuel R. Sanchez of
DILG instructing me to cease and desist from
my plan to reassume the functions and duties of
my office;
10. For less than a week, after November 24,
1997 Vice-Mayor AMELITA NAVARRO
relentlessly harassed and threatened me and
my constituents with bodily harm using the
strong arm of the law thru the brute force of the
PNP courteousy (sic) of Undersecretary Manuel
R. Sanchez I was constrained to ceased (sic)
from performing my duties and functions to

avoid any possible unfortunate incident that
may happen to me and any constituents; x x
x.34 (Emphases supplied)
By petitioners own admission, he refused to
leave his position despite the memorandum of
Undersecretary Sanchez and left only a few
days after receipt thereof due to the coercion
of the Philippine National Police. This
contradicts his assertion that
he immediately complied with the
memorandum of Undersecretary
Sanchez.35Petitioner cannot escape from his
own admission.
To be sure, petitioners honest belief defense
is old hat. In the 1956 case of People v.
Hilvano,36 the facts are:
When Mayor Fidencio Latorre of Villareal,
Samar, departed for Manila on official business
early in the morning of September 22, 1952, he
designated the herein defendant Francisco
Hilvano, councilor, to discharge the duties of his
office. Later, during office hours on that same
day, Vice-Mayor Juan Latorre went to the
municipal building; and having found Hilvano
acting in the place of the Mayor, he served
written notices to the corresponding municipal
officers, including Hilvano, that he (Juan Latorre)
as Vice-Mayor was assuming the duties of the
absent mayor. However, Hilvano refused to
yield, arguing that he had been designated by
the Mayor. Whereupon the Vice-Mayor sent a
telegram to the Executive Secretary informing
the latter of the controversy. And the said
Secretary replied by letter, that under sec. 2195
of the Revised Administrative Code it was the
Vice-Mayor who should discharge the duties of
the Mayor during the latters temporary absence.
Shown this official pronouncement, Hilvano still
refused to surrender the position. Again the
Vice-Mayor sought the opinion of the Provincial
Fiscal, who by letter (Exhibit D), replied that the
Vice-Mayor had the right to the office.
Notwithstanding such opinion which was

exhibited to him Hilvano declined to vacate the
post, which he held for about a month,
appointing some policemen, solemnizing
marriages and collecting the corresponding
salary for mayor.
Wherefore Francisco Hilvano was prosecuted
and after trial was convicted of usurpation of
public authority under Republic Act No. 10. He
appealed in due time.
In rejecting the defense of the accused Hilvano,
we ruled:37
There is no excuse for defendant-appellant. In
the beginning he might have pleaded good
faith, invoking the designation by the Mayor; but
after he had been shown the letter of the
Executive Secretary and the opinion of the
provincial fiscal, he had no right thereafter
stubbornly to stick to the position. He was
rightfully convicted.
Petitioners excuse for violating the order of
preventive suspension is too flimsy to merit even
a side-glance. He alleged that he merely
followed the advice of his lawyer. If petitioner
and his counsel had an iota of respect for the
rule of law, they should have assailed the
validity of the order of suspension in court
instead of taking the law into their own hands.
Fourth. It should be stressed that petitioner
was suspended by the Sandiganbayan. Under
Section 13 of R.A. No. 3019, this suspension is
mandatory if the information is sufficient.
Understandably, the dissent argues that the
Amended Information is insufficient in form as it
should have "expressly and clearly stated that
Miranda re-assumed office to defraud the
government or that in re-assuming office
Miranda committed acts that defrauded the
government"38 and that it is improper to take into
account the petitioners admissions in his

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

validity or sufficiency of allegations in an
information is determined according to the
provisions of Section 9 of the Revised Rules of
Criminal Procedure, viz:
SECTION 9. Cause of the Accusation. The
acts or omissions complained of as constituting
the offense and the qualifying and aggravating
circumstances must be stated in ordinary and
concise language and not necessarily in the
language used in the statute but in terms
sufficient to enable a person of common
understanding to know what offense is being
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce
judgment.43
The test is whether the crime is described in
intelligible terms with such particularity as to
apprise the accused, with reasonable certainty,
of the offense charged. The raison detre of the
rule is to enable the accused to suitably prepare
his defense.44 A perusal of the Amended
Information will bear out that it has hurdled this
legal bar. We quote its contents:
That on or about 24 November 1997, in the City
of Santiago, Isabela, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, a public officer, being then the
elected City Mayor of Santiago City, while under
preventive suspension, did, then and there,
willfully, unlawfully, and knowingly and under
pretense of official position, assume the duties
and function of the Office of the Mayor, issue
directives and memoranda, and appoint certain
persons to various positions in the city
government, and perform acts pertaining to an
office to which he knowingly was deprived of.45
Using this test, it cannot be said that the
Amended Information failed to properly apprise
the petitioner of the charge against him. The
information charged the petitioner with assuming
the duties and performing acts pertaining to the
office of Mayor willfully, unlawfully and knowingly

under the pretense of official position. Moreover,
it states some of the specific acts which
constitute usurpation of official functions,
namely, issuing directives and memoranda and
appointing certain persons to various positions
in the city government. These allegations are
clear enough for a layman to understand.
Indeed, even the petitioner does not complain
about their ambiguity. Only the dissent does.
Fifth. The dissenting opinion also contends that
the Ombudsmans authority to preventively
suspend local elective officials for 6 months is
limited by Section 63(b) of the Local
Government Code. Under the latter law,
petitioner can only be suspended for a maximum
period of 60 days. It then jumps to the
conclusion that petitioner could not have
usurped authority because he reassumed office
after 60 days.46
With due respect, the dissent fails to focus on
the proper issue. The issue before this Court is
whether theSandiganbayan committed a grave
abuse of discretion in suspending the petitioner
for 90 days. The validity of
the Ombudsmans order of preventive
suspension of the petitioner for 6 months is not
the one assailed in the case at bar. The
irrelevance of the suspension order of the
Ombudsman notwithstanding, the reliance of the
dissenting opinion on Garcia v.
Mojica is inapropos. In Garcia, we held:
Given these findings, we cannot say now that
there is no evidence sufficiently strong to justify
the imposition of preventive suspension against
petitioner. But considering its purpose and
the circumstances in the case brought
before us, it does appear to us that the
imposition of the maximum period of six
months is unwarranted.
On behalf of respondents, the Solicitor General
stated during his oral argument at the hearing
that the documents mentioned in respondents'

comment (such as purchase orders, purchase
requests, and disbursement vouchers),
documents that show petitioner's guilt, were
obtained after petitioner had been suspended.
Even if an afterthought, he claimed they
strengthen the evidence of respondents against
petitioner. If the purpose of the preventive
suspension was to enable the investigating
authority to gather documents without
intervention from petitioner, then, from
respondents' submission, we can only
conclude that this purpose was already
achieved, during the nearly month-long
suspension of petitioner from June 25 to
July 19, 1999. Granting that now the
evidence against petitioner is already strong,
even without conceding that initially it was
weak, it is clear to us that the maximum sixmonth period is excessive and definitely
longer than necessary for the Ombudsman
to make its legitimate case against
petitioner. We must conclude that the period
during which petitioner was already preventively
suspended, has been sufficient for the lawful
purpose of preventing petitioner from hiding and
destroying needed documents, or harassing and
preventing witnesses who wish to appear
against him.
We reach the foregoing conclusion, however,
without necessarily subscribing to
petitioner's claim that the Local Government
Code, which he averred should apply to this
case of an elective local official, has been
violated. True, under said Code, preventive
suspension may only be imposed after the
issues are joined, and only for a maximum
period of sixty days. Here, petitioner was
suspended without having had the chance to
refute first the charges against him, and for the
maximum period of six months provided by the
Ombudsman Law. But as respondents argue,
administrative complaints commenced under
the Ombudsman Law are distinct from those
initiated under the Local Government Code.
Respondents point out that the shorter period of

suspension under the Local Government Code
is intended to limit the period of suspension that
may be imposed by a mayor, a governor, or the
President, who may be motivated by partisan
political considerations. In contrast the
Ombudsman, who can impose a longer
period of preventive suspension, is not likely
to be similarly motivated because it is a
constitutional body. The distinction is valid but
not decisive, in our view, of whether there has
been grave abuse of discretion in a specific case
of preventive suspension. 47 (Emphases
supplied)
Nowhere in Garcia is it stated that the limits
provided in the Local Government Code apply to
the Ombudsman. In fact, the
Court expressly stated that its decision was
rendered without subscribing to the petitioners
claim that the Local Government Code had been
violated. In fine, the Court only ruled that the
Ombudsman acted with grave abuse of
discretion in imposing a 6-month preventive
suspension since it was admitted that the
documents required were already obtained by
19 July 1999 or 24 days after the imposition of
the preventive suspension. Therefore, the
purpose for which the suspension was imposed
was already served.
The dissenting opinion also cites the case
of Rios v. Sandiganbayan48 as basis for
assailing the Ombudsmans order of preventive
suspension. Rios is neither here nor there since
the powers of the Sandiganbayan were at issue
in that case, not those of the Ombudsman. It is
also worth noting that Rios cited Section 63 of
the Local Government Code as its legal basis.
This provision provides:
SECTION 63. Preventive Suspension. (a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an

elective official of a province, a highly urbanized
or an independent component city;
(2) By the governor, if the respondent is an
elective official of a component city or
municipality; or
(3) By the mayor, if the respondent is an elective
official of the barangay.
(b) Preventive suspension may be imposed at
any time after the issues are joined, when the
evidence of guilt is strong, and given the gravity
of the offense, there is great probability that the
continuance in office of the respondent could
influence the witnesses or pose a threat to the
safety and integrity of the records and other
evidence: Provided, That, any single preventive
suspension of local elective officials shall not
extend beyond sixty (60) days: Provided, further,
That in the event that several administrative
cases are filed against an elective official, he
cannot be preventively suspended for more than
ninety (90) days within a single year on the
same ground or grounds existing and known at
the time of the first suspension.
(c) Upon expiration of the preventive
suspension, the suspended elective official shall
be deemed reinstated in office without prejudice
to the continuation of the proceedings against
him, which shall be terminated within one
hundred twenty (120) days from the time he was
formally notified of the case against him.
However, if the delay in the proceedings of the
case is due to his fault, neglect, or request, other
than the appeal duly filed, the duration of such
delay shall not be counted in computing the time
of termination of the case.
It is plain that the provision was only meant as a
cap on the discretionary power of the President,
governor and mayor to impose excessively long
preventive suspensions. The Ombudsman is not
mentioned in the said provision and was not

meant to be governed thereby. Indeed, the
reason is not hard to distill. The President,
governor and mayor are political personages. As
such, the possibility of extraneous factors
influencing their decision to impose preventive
suspensions is not remote. The Ombudsman, on
the other hand, is not subject to political
pressure given the independence of the office
which is protected by no less than the
Constitution. This view was embraced by the
Court in Hagad v. Gozo-Dadole49 and Garcia v.
Mojica.50 In Hagad, we held:
Respondent local officials contend that the
6-month preventive suspension without pay
under Section 24 of the Ombudsman Act is
much too repugnant to the 60-day preventive
suspension provided by Section 63 of the
Local Government Code to even now
maintain its application. The two provisions
govern differently. In order to justify the
preventive suspension of a public official under
Section 24 of R.A. No. 6770, the evidence of
guilt should be strong, and (a) the charge
against the officer or employee should involve
dishonestly, oppression or grave misconduct or
neglect in the performance of duty; (b) that the
charges should warrant removal from the
service; or (c) the respondent's continued stay in
office would prejudice the case filed against him.
The Ombudsman can impose the 6-month
preventive suspension to all public officials,
whether elective or appointive, who are under
investigation. Upon the other hand, in imposing
the shorter period of sixty (60) days of
preventive suspension prescribed in the Local
Government Code of 1991 on an elective local
official (at any time after the issues are joined), it
would be enough that (a) there is reasonable
ground to believe that the respondent has
committed the act or acts complained of, (b) the
evidence of culpability is strong,(c) the gravity of
the offense so warrants, or (d) the continuance
in office of the respondent could influence the
witnesses or pose a threat to the safety and

integrity of the records and other evidence.51
In the same vein, we made the following
observations in Garcia, viz.:
Respondents may be correct in pointing out the
reason for the shorter period of preventive
suspension imposable under the Local
Government Code. Political color could taint the
exercise of the power to suspend local officials
by the mayor, governor, or President's office. In
contrast the Ombudsman, considering the
constitutional origin of his Office, always
ought to be insulated from the vagaries of
politics, as respondents would have us
believe. x x x
It was also argued in Hagad, that the sixmonth preventive suspension under the
Ombudsman Law is "much too repugnant" to
the 60-day period that may be imposed under
the Local Government Code. But per J. Vitug,
"the two provisions govern
differently." 52 (Emphases supplied)
There is no reason to reverse this ruling. Our
above ruling is in accord with the intent of the
law. It bears emphasis that Senator
Pimentel53 explained during the Senate
deliberations that the purpose of Section 63 of
the Code is to prevent the abuse of the power
of preventive suspension by members of the
executive branch, to wit:
The President.54 I recall that in the case of Iloilo
City Mayor Ganzon, he challenged the right of
the President, acting through the Secretary of
Local Government, I think, Luis Santos, to
suspend him - Senator Pimentel. That is true, Mr. President.
The President. - - contending that under the

new Constitution, even the President does not
have that right.
Senator Pimentel. Now, as far as we are
concerned, the Senate Committee is ready to
adopt a more stringent rule regarding the
power of removal and suspension by the
Office of the President over local
government officials, Mr. President. We would
only wish to point out that in a subsequent
section, we have provided for the power of
suspension of local government officials to be
limited only to 60 days and not more than 90
days in any one year, regardless of the number
of administrative charges that may be filed
against a local government official. We, in fact,
had in mind the case of Mayor Ganzon of
Iloilo where the Secretary of Local
Government sort of serialized the filing of
charges against him so that he can be
continuously suspended when one case is
filed right after the other, Mr. President.
The President. Can that be done under this
new Code?
Senator Pimentel. Under our proposal, that can
no longer be done, Mr. President.55
Verily, Section 63 of the Local Government Code
does not govern preventive suspensions
imposed by the Ombudsman, which is a
constitutionally created office and independent
from the Executive branch of government.56 The
Ombudsmans power of preventive suspension
is governed by Republic Act No.
6770,57otherwise known as "The Ombudsman
Act of 1989," which provides:
SECTION 24. Preventive Suspension. The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his
authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee

involves dishonesty, oppression or grave
misconduct or neglect in the performance of
duty; (b) the charges would warrant removal
from the service; or (c) the respondent's
continued stay in office may prejudice the case
filed against him.
The preventive suspension shall continue until
the case is terminated by the Office of the
Ombudsman but not more than six months,
without pay, except when the delay in the
disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the
period of such delay shall not be counted in
computing the period of suspension herein
provided.58 (Emphasis supplied)
The six-month period of preventive suspension
imposed by the Ombudsman59 was indubitably
within the limit provided by its enabling law. This
enabling law has not been modified by the
legislature.
The dissenting opinion submits that providing for
a six-month limit for the Ombudsman while
keeping the limit for executive officials at sixty
days violates the constitutional proscription
against equal protection of the law. In essence, it
avers that there is no substantial distinction
between preventive suspensions handed down
by the Ombudsman and those imposed by
executive officials. On the contrary, there is a
world of difference between them. The
Constitution has endowed the Ombudsman with
unique safeguards to ensure immunity from
political pressure. Among these statutory
protections are fiscal autonomy,60 fixed term of
office61 and classification as an impeachable
officer.62 This much was recognized by this Court
in the earlier cited case of Garcia v.
Mojica.63Moreover, there are stricter safeguards
for imposition of preventive suspension by the
Ombudsman. The Ombudsman Act of 1989
requires that the Ombudsman determine: (1)
that the evidence of guilt is strong; and (2) that

any of the following circumstances are present:
(a) the charge against such officer or employee
involves dishonesty, oppression, or grave
filed against him.64
The dissenting opinion finally points out the
possibility of abuse by the Ombudsman in
imposing preventive suspensions. The short
reply is that all powers are susceptible of abuse
but that is no reason to strike down the grant of
power. Suffice it to say that the proper remedies
against abuse in the exercise of power are a
petition forcertiorari under Rule 65 of the 1997
Rules of Civil Procedure or amendment of the
Ombudsmans enabling law by the
legislature, not a contortionist statutory
interpretation by this Court.
IN VIEW WHEREOF, the instant petition
is DISMISSED there being no showing that the
Sandiganbayan gravely abused its discretion in
issuing its Resolution of 4 February 2002,
preventively suspending the petitioner for 90
days.
SO ORDERED.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 170810
August 7, 2007
AZUCENA B. DON, JOSEPH DETERA,

NENITA B. GRESOLA, LETICIA L.
ESPENILLA, EDITH G. DETOITO, JULNA D.
JAYCO, ROGER ARIARTE, CALVIN DEL
VALLE, and ERLYN RAMIREZ, Petitioners,
vs.
RAMON H. LACSA as erstwhile Punong
Barangay of Bacolod, Juban,
Sorsogon, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioners-public school teachers charged
before the Sangguniang Bayan of Juban,
Sorsogon respondent Ramon H. Lacsa
(respondent), then Punong Barangay of
Bacolod, Juban, Sorsogon, with grave threats,
oppression, grave misconduct, and abuse of
authority.
On the directive of the then vice mayor of the
Municipality of Juban in his capacity as presiding
officer of the Sangguniang Bayan, respondent
filed his Answer.1
A Special Investigating Committee (SIC) created
by the Sangguniang Bayan to investigate the
case found sufficient evidence for the preventive
suspension of respondent. The Sangguniang
Bayan thus passed a resolution recommending
his preventive suspension.
Acting on the recommendation, the mayor

slapped a two-month preventive suspension
against respondent on January 7, 2005.2
The SIC later submitted its report finding
respondent guilty of oppression, grave
misconduct, and abuse of authority.3 On March
7, 2005, the Sangguniang Bayan issued
Resolution No. 12-20054 adopting the SIC
Report. By the same resolution, respondent was
removed from office.5
On March 8, 2005, the mayor issued Executive
Order No. 8, Series of 20056 implementing
Resolution No. 12-2005 of the Sangguniang
Bayan and installing Florencio H. Lacsa, the
highest ranking Sangguniang Barangay
member, in place of Ramon H. Lacsa as Punong
Barangay of Bacolod.7 On even date,
respondent received a copy of the executive
order, together with a copy of Sangguniang
Bayan Resolution No. 12-2005.8
Twenty one days after receiving a copy
of Sangguniang Bayan Resolution No. 12-2005
or on March 29, 2005, respondent filed before
the Regional Trial Court (RTC) of Sorsogon a
Petition for Certiorari (With Application for
Temporary Restraining Order and/or Writ of
Preliminary Injunction)9 against herein
petitioners, along with theSangguniang Bayan of
Juban and Mayor Ma. Teresa Guab-Fragata.
The case was docketed as Special Civil Action
No. 2005-7513.
By Decision of October 24, 2005, Branch 53 of
the RTC of Sorsogon granted respondents
petition and accordingly nullified the mayors
executive order. Thus the trial court ruled:
xxxx
[Respondent] is entitled to be informed and have
a copy of the decision rendered by the
Sangguniang Bayan of Juban, Sorsogon
pursuant to Section 66 of R.A. 7160, for him to

seek the remedies afforded by law, if he so
desires. x x x [He] received Executive Order No.
8 and attached thereto is Sangguniang
Bayan Resolution No. 12-2005, on the same
day, March 8, 2005. It appears that the . . .
Sangguniang Bayan furnished [him] with a copy
of the said resolution not to afford him his
remedies on appeal in violation of Section 66
7160, but to execute said resolution hastily . . .
in utmost disregard of [his] constitutional right to
due process. Pursuant to Section 67 of R.A.
7160, [he] has thirty (30) days from receipt of the
said resolution to file an appeal. [He] was not
afforded the opportunity to elevate Resolution
No. 12-2005 on appeal.
xxxx
Considering the foregoing findings . . . the
municipal mayor gravely abused her discretion,
amounting to lack of jurisdiction in issuing and
executing Executive Order No. 8 . . .
x x x x10 (Underscoring supplied)
The trial court thus disposed:
Wherefore, premises considered, this court
grants the petition for certiorari and orders the
following:
1. The annulment and setting aside of
Executive Order No. 8 dated March 8,
2005 issued by the Municipal Mayor;
2. The reinstatement of . . . Ramon H.
Lacsa to his position as Punong
Barangay of Bacolod, Juban, Sorsogon;
3. The payment to the said petitioner of
the emoluments/allowances accruing to
him from the time of removal from office
up to the time of reinstatement thereat;
4. Directing the Sangguniang Bayan of

Juban, Sorsogon to serve anew the
petitioner with a copy of the
Decision/Resolution No. 12-2005 and
from receipt of which the petitioner shall
enjoy his right to appeal such decision
to the Sangguniang Panlalawigan
pursuant to Section [6]7 of R.A. 7160.
With costs against the respondents
Sangguniang Bayan Members and Municipal
Mayor.
SO ORDERED.11
The trial court having denied12 petitioners
Motion for Reconsideration,13 the petitioners filed
the present Petition for Review on Certiorari,
manifesting early on that they are raising only
questions of law. They fault the trial court14
1. . . . in holding that the Sangguniang
Bayan of Juban, Sorsogon, furnished
respondent with a copy of its Resolution
No. 12-2005, not to afford him his
remedy of appeal, but to execute the
said resolution hastily in violation of
Section 66 of R.A. 7160.
2. . . . in holding that the respondent
Municipal Mayor issued Executive Order
No. 8 in "utmost" disregard of
respondents right to due process, as
pursuant to Section 67 of R.A. 7160, he
has thirty days from receipt of the
aforesaid resolution to file an appeal.
3. . . . in holding that the municipal
mayor, in promptly executing
Sangguniang Bayan Resolution No. 122005, committed "grave abuse of
discretion amounting to lack of
jurisdiction."
4. The court a quo erred even more

when it restored to respondent, through
a writ of execution, the right of
administrative appeal which he had
abandoned and lost.15
Sec. 67. Administrative Appeals.

Decisions in administrative cases may,
within thirty (30) days from receipt
thereof, be appealed to the following:
xxxx
The petition is impressed with merit.

The pertinent provision of R.A. 7160, otherwise
known as the Local Government Code, reads:
Sec. 61(c) A complaint against any
elective barangay official shall be filed before the
sangguniang panlungsod or Sangguniang
Bayan concerned whose decision shall be final
and executory." (Emphasis and underscoring
supplied)
The "final and executory" phrase used in the
immediately-quoted provision was construed in
Mendoza v. Laxina, Sr.16 to be "immediately
executory," albeit the respondent may appeal
the adverse decision to the proper office. Thus
this Court declared:
Sections 61 and 67 of the Local Government
Code, provide:
Section 61. Form and Filing of Administrative
Complaints. A verified complaint against any
erring local elective official shall be prepared as
follows:
xxxx
(c) A complaint against any elective
barangay official shall be filed before
the sangguniang
panlungsod orsangguniang
bayan concerned whose decision shall
be final and executory, (Italics supplied)
(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.
Decisions of the Office of the President shall be
final and executory.
In interpreting the foregoing provisions, the trial
court did not consider Section 68 of the same
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 that the appeal results in
exoneration, he shall be paid his salary and
other such emoluments during the pendency of
the appeal.
Obviously, the said Code does not preclude the
taking of an appeal. On the contrary, it
specifically allows a party to appeal to the Office
of the President. The [phrase] "final and
executory" x x x in Sections 67 and 68,
respectively, of the Local Government Code, are
not, as erroneously ruled by the trial court,
indicative of the appropriate mode of relief from
the decision of the Sanggunian concerned.
These phrases simply mean that the
administrative appeals will not prevent the
enforcement of the decisions. The decision is
immediately executorybut the respondent may
nevertheless appeal the adverse decision to the
Office of the President or to theSangguniang
Panlalawigan, as the case may be.17 (Emphasis

and underscoring supplied)
The conditions that would afford respondent to
file a petition for certiorari under Rule 65 of the
Rules of Court as he did file one before the RTC
that a tribunal, board, or officer exercising
judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal,
or any plain, speedy, and adequate remedy in
the ordinary course of law are not here
present.1avvphi1
WHEREFORE, the petition is GRANTED. The
October 24, 2005 Decision of the Regional Trial
Court of Sorsogon City, Branch 53 in Special
Civil Action No. 2005-7513 is REVERSED and
SET ASIDE.
Resolution No. 12-2005 issued by the Juban,
Sorsogon Sangguniang Bayan and Executive
Order No. 8, Series of 2005 issued by Mayor
Ma. Teresa Guab-Fragata are REINSTATED.
SO ORDERED.

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170626
March 3, 2008
THE SANGGUNIANG BARANGAY OF

BARANGAY DON MARIANO MARCOS,
MUNICIPALITY OF BAYOMBONG PROVINCE
OF NUEVA VISCAYA represented by
BARANGAY KAGAWAD JOSE CENEN
SANTOS, MARIO BACUD, WALTER
FRANCISCO, ROSITA SEBASTIAN, LAURETA
CABAUATAN, CECILIA ALINDAYU and MELY
SIMANGAN, petitioners,
vs.
PUNONG BARANGAY SEVERINO
MARTINEZ, respondent.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court, assailing the
Orders dated 20 October 20051 and 30
November 20052 of the Regional Trial Court (trial
court), Branch 27, of Bayombong, Nueva
Vizcaya, in Special Civil Action No. 6727. In its
assailed Orders, the trial court ruled that the
Sangguniang Bayan of Bayombong, Neuva
Vizcaya (Sangguniang Bayan), exceeded its
jurisdiction when it imposed upon respondent
Severino Martinez the administrative penalty of
removal from office.
Petitioner Sangguniang Barangay is the
legislative body of Barangay Don Mariano
Marcos, Bayombong, Nueva Vizcaya, a local
government unit created, organized and existing
as such under pertinent laws of the Republic of
the Philippines. Respondent Martinez is the
incumbent Punong Barangay of the said local

government unit.3
On 5 November 2004, Martinez was
administratively charged with Dishonesty and
Graft and Corruption by petitioner through the
filing of a verified complaint before the
Sangguniang Bayan as the disciplining authority
over elective barangay officials pursuant to
Section 614 of Rep. Act No. 7160, otherwise
known as the Local Government Code.
Petitioner filed with the Sangguniang Bayan an
Amended Administrative Complaint against
Martinez on 6 December 2004 for Dishonesty,
Misconduct in Office and Violation of the AntiGraft and Corrupt Practices Act.5 Petitioner
alleged that Martinez committed the following
acts:
1. Failure to submit and fully remit to the
Barangay Treasurer the income of their
solid waste management project since
2001 particularly the sale of fertilizer
derived from composting.
2. Failure to submit/remit to the
barangay treasurer the sale of
recyclable materials taken from garbage
collection.
3. Using the garbage truck for other
purposes like hauling sand and gravel
for private persons without monetary
benefit to the barangay because no
income from this source appears in the
year end report even if payments were
collected x x x.
4. Using/spending barangay funds for
repair, gasoline, lubricants, wheels and
other spare parts of the garbage truck
instead of using the money or income of
said truck from the garbage fees
collected as income from its Sold Waste
Management Project. x x x.
5. Unliquidated traveling expenses for

Seminar/Lakbay-Aral in 2003 because
although a cash advance was made by
the respondent for the said purpose, he,
however, did not attend said seminar
because on the dates when he was
supposed to be on seminar they saw
him in the barangay. x x x.
6. That several attempts to discuss said
problem during sessions were all in vain
because respondent declined to discuss
it and would adjourn the session.x x x. 6
Upon his failure to file an Answer to the
Amended Administrative Complaint dated 6
December 2004, Martinez was declared by the
Sangguniang Bayan as in default. Pending the
administrative proceedings, Martinez was placed
under preventive suspension for 60 days or until
8 August 2005.7
On 28 July 2005, the Sangguniang Bayan
rendered its Decision which imposed upon
Martinez the penalty of removal from office.8
The Decision dated 28 July 2005 was conveyed
to the Municipal Mayor of Bayombong, Nueva
Ecija, Severino Bagasao, for its implementation.
On 3 August 2005, Municial Mayor Bagasao
issued a Memorandum, wherein he stated that
the Sanggunaing Bayan is not empowered to
order Martinezs removal from service. However,
the Decision remains valid until reversed and
must be executed by him. For the meantime, he
ordered the indefinite suspension of Martinez
since the period of appeal had not yet
lapsed.9 The dispositive portion of the said
Memorandum states that:10
The FOREGOING considered come
AUGUST 8, 2005, respondent
SEVERINO D. MARTINEZ is hereby
directed NOT to ASSUME and
DISCHARGE the functions of the Office
of the Punong Barangay of Barangay

Don Mariano Marcos, Bayombong,
Nueva Vizcaya and for complainant
JOSE CENEN SANTOS to CONTINUE
assuming and discharging the functions
of the said office in ACTING CAPACITY
pursuant to the provisions of Sections
67 and 68 of Republic Act No. 7160.
On 26 August 2005, Martinez filed a Special
Civil Action for Certiorari with a prayer for
Temporary Restraining Order and Preliminary
Injunction before the trial court against petitioner,
the Sangguniang Bayan and Mayor Bagasao
questioning the validity of the Decision dated 28
July 2005 of the Sangguniang Bayan. This case
was docketed as Special Civil Action No. 6727,
which was initially heard by Branch 28, but later
raffled to Branch 27 of the trial court.11
On 20 October 2005, the trial court issued an
Order declaring the Decision of the
Sangguniang Bayan and the Memorandum of
Mayor Bagasao void. It maintained that the
proper courts, and not the petitioner, are
empowered to remove an elective local official
from office, in accordance with Section 60 of the
Local Government Code. Thus, the Order of the
Sangguniang Bayan removing Martinez from
service is void. As a consequence, Mayor
Bagasao cannot prevent Martinez from
assuming his office on the basis of a void order.
The trial court further ruled that Martinez
properly availed himself of the remedy of Special
Civil Action, where the order assailed was a
patent nullity.12
On 10 November 2005, petitioner filed a Motion
for Reconsideration13 of the trial courts Order
dated 10 October 2005. The trial court denied
the said motion in another Order dated 30
November 2005.14
Hence, the present petition was filed.
Although Martinezs term as Punong Baranggay

expired upon the holding of the 29 October 2007
Synchronized Barangay and Sangguniang
Kabataan elections and, thus, rendering this
petition moot and academic, the Court will
nevertheless settle a legal question that is
capable of repetition yet evading review.15
The pivotal issue in this case is whether or not
the Sangguniang Bayan may remove Martinez,
an elective local official, from office. The
pertinent legal provisions and cases decided by
this Court firmly establish that the Sanggunaing
Bayan is not empowered to do so.
Section 60 of the Local Government Code
conferred upon the courts the power to remove
elective local officials from office:
Section 60. Grounds for Disciplinary
Actions.An elective local official may
be disciplined, suspended, or removed
from office on any of the following
grounds:
x x x x.
An elective local official may be
removed from office on the grounds
enumerated above by order of the
proper court. (Emphasis provided.)
During the deliberations of the Senate on the
Local Government Code,16 the legislative intent
to confine to the courts, i.e., regional trial courts,
the Sandiganbayan and the appellate courts,
jurisdiction over cases involving the removal of
elective local officials was evident:
Senator Pimentel. This has been
reserved, Mr. President, including the
issue of whether or not the Department
Secretary or the Office of the President
can suspend or remove an elective
official.
Senator Saguisag. For as long as that is

open for some later disposition, may I
just add the following thought: It seems
to me that instead of identifying only
the proper regional trial court or the
Sandiganbayan, and since we know
that in the case of a regional trial
court, particularly, a case may be
appealed or may be the subject of an
injunction, in the framing of this later
on, I would like to suggest that we
consider replacing the phrase
"PROPER REGIONAL TRIAL COURT
OR THE SANDIGANBAYAN" simply
by "COURTS." Kasi po, maaaring
sabihin nila na mali iyong regional trial
court o ang Sandiganbayan.
Senator Pimentel. "OR THE PROPER
COURT."
Senator Saguisag. "OR THE PROPER
COURT."
Senator Pimentel. Thank you. We are
willing to accept that now, Mr. President.
Senator Saguisag. It is to be
incorporated in the phraseology that we
will craft to capture the other ideas that
have been elevated. (Emphasis
provided.)
In Salalima v. Guingona, Jr.,17 the Court en
banc categorically ruled that the Office of the
President is without any power to remove
elected officials, since the power is exclusively
vested in the proper courts as expressly
provided for in the last paragraph of Section 60
of the Local Government Code. It further
invalidated Article 125, Rule XIX of the Rules
and Regulations Implementing the Local
Government Code of 1991, which provided that:
Article 125. Grounds for Disciplinary

Actions. x x x.
x x x x.
(b) An elective local official may be
removed from office on the grounds
enumerated in paragraph (a) of this
Article by order of the proper court or
the disciplining authority whichever first
acquires jurisdiction to the exclusion of
the other.
The Court nullified the aforequoted rule since
the Oversight Committee that prepared the
Rules and Regulations of the Local Government
Code exceeded its authority when it granted to
the "disciplining authority" the power to remove
elective officials, a power which the law itself
granted only to the proper courts. Thus, it is
clear that under the law, the Sangguniang Bayan
is not vested with the power to remove Martinez.
Petitioner contends that administrative cases
involving elective barangay officials may be filed
with, heard and decided by the Sangguniang
Panlungsod or Sangguniang Bayan concerned,
which can, thereafter, impose a penalty of
removal from office. It further claims that the
courts are merely tasked with issuing the order
of removal, after the Sangguniang Panlungsod
or Sangguniang Bayan finds that a penalty of
removal is warranted.18
The aforementioned position put forward by the
petitioner would run counter to the rationale for
making the removal of elective officials an
exclusive judicial prerogative. In Pablico v.
Villapando,19 the court declared that:
It is beyond cavil, therefore, that the
power to remove erring elective local
officials from service is lodged
exclusively with the courts. Hence,
Article 124 (sic 125)20 (b), Rule XIX, of
the Rules and Regulations

Implementing the Local Government
Code, insofar as it vests power on the
"disciplining authority" to remove from
office erring elective local officials, is
void for being repugnant to the last
paragraph of Section 60 of the Local
Government Code of 1991. The law on
suspension or removal of elective public
officials must be strictly construed and
applied, and the authority in whom such
power of suspension or removal is
vested must exercise it with utmost good
faith, for what is involved is not just an
ordinary public official but one chosen
by the people through the exercise of
their constitutional right of
suffrage. Their will must not be put to
naught by the caprice or partisanship
of the disciplining authority. Where
the disciplining authority is given only
the power to suspend and not the power
to remove, it should not be permitted to
manipulate the law by usurping the
power to remove. (Emphasis supplied.)
The rule which confers to the proper courts the
power to remove an elective local official from
office is intended as a check against any
capriciousness or partisan activity by the
disciplining authority. Vesting the local legislative
body with the power to decide whether or not a
local chief executive may be removed from
office, and only relegating to the courts a
mandatory duty to implement the decision,
would still not free the resolution of the case
from the capriciousness or partisanship of the
disciplining authority. Thus, the petitioners
interpretation would defeat the clear intent of the
law.
Moreover, such an arrangement clearly demotes
the courts to nothing more than an implementing
arm of the Sangguniang Panlungsod, or
Sangguniang Bayan. This would be an
unmistakable breach of the doctrine on
separation of powers, thus placing the courts

under the orders of the legislative bodies of local
governments. The courts would be stripped of
their power of review, and their discretion in
imposing the extreme penalty of removal from
office is thus left to be exercised by political
factions which stand to benefit from the removal
from office of the local elective official
concerned, the very evil which Congress sought
to avoid when it enacted Section 60 of the Local
Government Code.
Congress clearly meant that the removal of an
elective local official be done only after a trial
before the appropriate court, where court rules
of procedure and evidence can ensure
impartiality and fairness and protect against
political maneuverings. Elevating the removal of
an elective local official from office from an
administrative case to a court case may be
justified by the fact that such removal not only
punishes the official concerned but also, in
effect, deprives the electorate of the services of
the official for whom they voted.
As the law stands, Section 61 of the Local
Government Code provides for the procedure for
the filing of an administrative case against an
erring elective barangay official before the
Sangguniang Panlungsod or Sangguniang
Bayan. However, the Sangguniang Panlungsod
or Sangguniang Bayan cannot order the removal
of an erring elective barangay official from office,
as the courts are exclusively vested with this
power under Section 60 of the Local
Government Code. Thus, if the acts allegedly
committed by the barangay official are of a
grave nature and, if found guilty, would merit the
penalty of removal from office, the case should
be filed with the regional trial court. Once the
court assumes jurisdiction, it retains jurisdiction
over the case even if it would be subsequently
apparent during the trial that a penalty less than
removal from office is appropriate. On the other
hand, the most extreme penalty that the
Sangguniang Panlungsod or Sangguniang
Bayan may impose on the erring

elective barangay official is suspension; if it
deems that the removal of the official from
service is warranted, then it can resolve that the
proper charges be filed in court.
Petitioner alleged that an interpretation which
gives the judiciary the power to remove local
elective officials violates the doctrine of
separation of powers. This allegation runs
contrary to the 1987 Constitution itself, as well
as jurisprudence.
The 1987 Constitution is explicit in defining the
scope of judicial power. It establishes the
authority of the courts to determine in an
appropriate action the validity of acts of the
political departments. It speaks of judicial
prerogative in terms of duty.21 Paragraph 2,
Section 1, Article VIII of the 1987 Constitution,
provides that:
Judicial power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable,
and to determine whether or not there
has been a grave abuse of discretion
amounting to lack or excess of
jurisdiction on the part of any branch
or instrumentality of the Government.
(Emphasis provided.)
The doctrine of separation of powers is not
absolute in its application; rather, it should be
applied in accordance with the principle of
checks and balances. The removal from office of
elective officials must not be tainted with
partisan politics and used to defeat the will of the
voting public. Congress itself saw it fit to vest
that power in a more impartial tribunal, the court.
Furthermore, the local government units are not
deprived of the right to discipline local elective
officials; rather, they are prevented from
imposing the extreme penalty of dismissal.
Petitioner questions the Decision dated 20

October 2005 of the trial court for allowing the
petition filed before it as an exception to the
doctrine of exhaustion of administrative
remedies. If, indeed, the Sangguniang Bayan
had no power to remove Martinez from office,
then Martinez should have sought recourse from
the Sangguniang Panlalawigan. This Court
upholds the ruling of the trial court.
The doctrine of exhaustion of administrative
remedies calls for resort first to the appropriate
administrative authorities in the resolution of a
controversy falling under their jurisdiction before
the same may be elevated to the courts of
justice for review. Non-observance of the
doctrine results in lack of a cause of action,
which is one of the grounds allowed by the
Rules of Court for the dismissal of the
complaint.22
The doctrine of exhaustion of administrative
remedies, which is based on sound public policy
and practical consideration, is not inflexible.
There are instances when it may be dispensed
with and judicial action may be validly resorted
to immediately. Among these exceptions are: 1)
where there is estoppel on the part of the party
invoking the doctrine; 2) where the challenged
administrative act is patently illegal,
amounting to lack of jurisdiction; 3) where
there is unreasonable delay or official inaction
that will irretrievably prejudice the complainant;
4) where the amount involved is relatively small
as to make the rule impractical and oppressive;
5)where the question raised is purely legal
and will ultimately have to be decided by the
courts of justice; 6) where judicial intervention
is urgent; 7) where its application may cause
great and irreparable damage; 8) where the
controverted acts violate due process; 9) when
the issue of non-exhaustion of administrative
remedies has been rendered moot; 10) where
there is no other plain, speedy and adequate
remedy; 11) when strong public interest is
involved; and 13) in quo warranto proceedings.23
As a general rule, no recourse to courts can be

had until all administrative remedies have been
exhausted. However, this rule is not applicable
where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction
and where the question or questions involved
are essentially judicial.
In this case, it is apparent that the Sangguniang
Bayan acted beyond its jurisdiction when it
issued the assailed Order dated 28 July 2005
removing Martinez from office. Such act was
patently illegal and, therefore, Martinez was no
longer required to avail himself of an
administrative appeal in order to annul the said
Order of the Sangguniang Bayan.24 Thus, his
direct recourse to regular courts of justice was
justified.
In addition, this Court in Castro v.
Gloria25 declared that where the case involves
only legal questions, the litigant need not
exhaust all administrative remedies before such
judicial relief can be sought. The reason behind
providing an exception to the rule on exhaustion
of administrative remedies is that issues of law
cannot be resolved with finality by the
administrative officer. Appeal to the
administrative officer would only be an exercise
in futility. A legal question is properly addressed
to a regular court of justice rather than to an
administrative body.26
In the present case, Martinez raised before the
trial court the sole issue of whether the
Sangguniang Bayan has jurisdiction over a case
involving the removal of a local elective official
from office.27 In Martinezs petition before the
trial court, only a legal question was raised, one
that will ultimately be resolved by the courts.
Hence, appeal to the administrative officer
concerned would only be circuitous and,
therefore, should no longer be required before
judicial relief can be sought.
IN VIEW OF THE FOREGOING, the instant

Petition is DENIED and the assailed Decision of
the Bayombong RTC in Special Civil Action No.
6727 is AFFIRMED.
SO ORDERED.
Ynares-Santiago, Chairperson, AustriaMartinez,, Nachura, Reyes, JJ., concur.
Rule 63 sec 4 1997 rules of civil procedure

Section 4. Local government ordinances. In
any action involving the validity of a local
government ordinance, the corresponding
prosecutor or attorney of the local governmental
unit involved shall be similarly notified and
entitled to be heard. If such ordinance is alleged
to be unconstitutional, the Solicitor General shall
also be notified and entitled to be heard. (4a,
R64)
Congress of the Philippines
Metro Manila
Eighth Congress
Republic Act No. 6770

1989
November 17,
AN ACT PROVIDING FOR THE FUNCTIONAL

AND STRUCTURAL ORGANIZATION OF THE
OFFICE OF THE OMBUDSMAN, AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled::
Section 1. Title. This Act shall be known
as "The Ombudsman Act of 1989".
Section 2. Declaration of Policy. The State
shall maintain honesty and integrity in the public
service and take positive and effective measures
against graft and corruption.
Public office is a public trust. Public officers and
employees must at all times be accountable to
the people, serve them with utmost
responsibility, integrity, loyalty, efficiency, act with

patriotism and justice and lead modest lives.
Section 3. Office of the Ombudsman. The
Office of the Ombudsman shall include the
Office of the Overall Deputy, the Office of the
Deputy for Luzon, the Office of the Deputy for
the Visayas, the Office of the Deputy for
Mindanao, the Office of the Deputy for the
Armed Forces, and the Office of the Special
Prosecutor. The President may appoint other
Deputies as the necessity for it may arise, as
recommended by the Ombudsman.
Section 4. Appointment. The Ombudsman
and his Deputies, including the Special
Prosecutor, shall be appointed by the President
from a list of at least twenty-one (21) nominees
prepared by the Judicial and Bar Council, and
from a list of three (3) nominees for each
vacancy thereafter, which shall be filled within
three (3) months after it occurs, each of which
list shall be published in a newspaper of general
circulation.
In the organization of the Office of the
Ombudsman for filling up of positions therein,
regional, cultural or ethnic considerations shall
be taken into account to the end that the Office
shall be as much as possible representative of
the regional, ethnic and cultural make-up of the
Filipino nation.
Section 5. Qualifications. The Ombudsman
Prosecutor, shall be natural-born citizens of the
Philippines, at least forty (40) years old, of
recognized probity and independence, members
of the Philippine Bar, and must not have been
candidates for any elective national or local
office in the immediately preceding election
whether regular or special. The Ombudsman
must have, for ten (10) years or more, been a
judge or engaged in the practice of law in the
Philippines.
Section 6. Rank and Salary. The

Ombudsman and his Deputies shall have the
same ranks, salaries and privileges as the
Chairman and members, respectively, of a
Constitutional Commission. Their salaries shall
not be decreased during their term of office.
The members of the prosecution, investigation
and legal staff of the Office of the Ombudsman
shall receive salaries which shall not be less
than those given to comparable positions in any
office in the Government.
Section 7. Term of Office. The Ombudsman
Prosecutor, shall serve for a term of seven (7)
years without reappointment.
Section 8. Removal; Filling of Vacancy.
(1) In accordance with the provisions of
Article XI of the Constitution, the
Ombudsman may be removed from
office on impeachment for, and
conviction of, culpable violation of the
Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal
of public trust.
(2) A Deputy or the Special Prosecutor,
may be removed from office by the
President for any of the grounds
provided for the removal of the
Ombudsman, and after due process.
(3) In case of vacancy in the Office of
the Ombudsman due to death,
resignation, removal or permanent
disability of the incumbent Ombudsman,
the Overall Deputy shall serve as Acting
Ombudsman in a concurrent capacity
until a new Ombudsman shall have
been appointed for a full term.n case the
Overall Deputy cannot assume the role
of Acting Ombudsman, the President
may designate any of the Deputies, or

the Special Prosecutor, as Acting
Ombudsman.
(4) In case of temporary absence or
disability of the Ombudsman, the
Overall Deputy shall perform the duties
of the Ombudsman until the
Ombudsman returns or is able to
perform his duties.
Section 9. Prohibitions and
Disqualifications. The Ombudsman, his
Deputies and the Special Prosecutor shall not,
during their tenure, hold any other office or
employment. They shall not, during said tenure,
directly or indirectly practice any other
profession, participate in any business, or be
financially interested in any contract with, or in
any franchise, or special privilege granted by the
Government or any subdivision, agency or
instrumentality thereof, including governmentowned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office. They shall
not be qualified to run for any office in the
election immediately following their cessation
from office. They shall not be allowed to appear
or practice before the Ombudsman for two (2)
years following their cessation from office.
Section 10. Disclosure of Relationship. It

shall be the duty of the Ombudsman, his
Deputies, including the Special Prosecutor to
make under oath, to the best of their knowledge
and/or information, a public disclosure of the
identities of, and their relationship with the
persons referred to in the preceding section.
The disclosure shall be filed with the Office of
the President and the Office of the Ombudsman
before the appointee assumes office and every
year thereafter. The disclosures made pursuant
to this section shall form part of the public
records and shall be available to any person or
entity upon request.
Section 11. Structural Organization. The
authority and responsibility for the exercise of
the mandate of the Office of the Ombudsman
and for the discharge of its powers and functions
shall be vested in the Ombudsman, who shall
have supervision and control of the said office.
(1) The Office of the Ombudsman may
organize such directorates for
administration and allied services as
may be necessary for the effective
discharge of its functions. Those
appointed as directors or heads shall
have the rank and salary of line bureau
directors.
No spouse or relative by consanguinity or affinity

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

shall oversee and administer the
operations of the different offices under
the Office of Ombudsman.t shall
likewise perform such other functions
and duties assigned to it by the
Ombudsman.
This disqualification shall apply during the tenure

of the official concerned. This disqualification
likewise extends to the law, business or
professional firm for the same period.
(3) The Office of the Special Prosecutor

shall be composed of the Special
Prosecutor and his prosecution staff.
The Office of the Special Prosecutor
shall be an organic component of the
Office of the Ombudsman and shall be

under the supervision and control of the
Ombudsman.
(4) The Office of the Special Prosecutor
shall, under the supervision and control
and upon the authority of the
Ombudsman, have the following
powers:
(a) To conduct preliminary
investigation and prosecute
criminal cases within the
jurisdiction of the
Sandiganbayan;
(b) To enter into plea bargaining
agreements; and
(c) To perform such other duties
assigned to it by the
Ombudsman.
The Special Prosecutor shall
have the rank and salary of a
Deputy Ombudsman.
(5) The position structure and staffing
pattern of the Office of the Ombudsman,
including the Office of the Special
Prosecutor, shall be approved and
prescribed by the Ombudsman. The
Ombudsman shall appoint all officers
and employees of the Office of the
Ombudsman, including those of the
Office of the Special Prosecutor, in
accordance with the Civil Service Law,
rules and regulations.
Section 12. Official Stations. The
Ombudsman, the Overall Deputy, the Deputy for
Luzon, and the Deputy for the Armed Forces
shall hold office in Metropolitan Manila; the
Deputy for the Visayas, in Cebu City; and the
Deputy for Mindanao, in Davao City. The
Ombudsman may transfer their stations within

their respective geographical regions, as public
interest may require.
Section 13. Mandate. The Ombudsman and
his Deputies, as protectors of the people, shall
act promptly on complaints filed in any form or
manner against officers or employees of the
Government, or of any subdivision, agency or
instrumentality thereof, including governmentowned or controlled corporations, and enforce
their administrative, civil and criminal liability in
every case where the evidence warrants in order
to promote efficient service by the Government
to the people.
Section 14. Restrictions. No writ of
injunction shall be issued by any court to delay
an investigation being conducted by the
Ombudsman under this Act, unless there is a
prima facie evidence that the subject matter of
the investigation is outside the jurisdiction of the
Office of the Ombudsman.
No court shall hear any appeal or application for
remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on
pure question of law.
Section 15. Powers, Functions and Duties.
The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own
or on complaint by any person, any act
or omission of any public officer or
employee, office or agency, when such
act or omission appears to be illegal,
unjust, improper or inefficient.t has
primary jurisdiction over cases
cognizable by the Sandiganbayan and,
in the exercise of this primary
jurisdiction, it may take over, at any
stage, from any investigatory agency of
Government, the investigation of such

cases;
(2) Direct, upon complaint or at its own
instance, any officer or employee of the
Government, or of any subdivision,
agency or instrumentality thereof, as
well as any government-owned or
controlled corporations with original
charter, to perform and expedite any act
or duty required by law, or to stop,
prevent, and correct any abuse or
impropriety in the performance of duties;
(3) Direct the officer concerned to take
appropriate action against a public
officer or employee at fault or who
neglect to perform an act or discharge a
duty required by law, and recommend
his removal, suspension, demotion, fine,
censure, or prosecution, and ensure
compliance therewith; or enforce its
disciplinary authority as provided in
Section 21 of this Act: provided, that the
refusal by any officer without just cause
to comply with an order of the
Ombudsman to remove, suspend,
demote, fine, censure, or prosecute an
officer or employee who is at fault or
who neglects to perform an act or
discharge a duty required by law shall
be a ground for disciplinary action
against said officer;
(4) Direct the officer concerned, in any
appropriate case, and subject to such
limitations as it may provide in its rules
of procedure, to furnish it with copies of
documents relating to contracts or
transactions entered into by his office
involving the disbursement or use of
public funds or properties, and report
any irregularity to the Commission on
Audit for appropriate action;
(5) Request any government agency for

assistance and information necessary in
the discharge of its responsibilities, and
to examine, if necessary, pertinent
records and documents;
(6) Publicize matters covered by its
investigation of the matters mentioned in
paragraphs (1), (2), (3) and (4) hereof,
when circumstances so warrant and with
due prudence: provided, that the
Ombudsman under its rules and
regulations may determine what cases
may not be made public: provided,
further, that any publicity issued by the
Ombudsman shall be balanced, fair and
true;
(7) Determine the causes of inefficiency,
red tape, mismanagement, fraud, and
corruption in the Government, and make
recommendations for their elimination
and the observance of high standards of
ethics and efficiency;
(8) Administer oaths, issue subpoena
and subpoena duces tecum, and take
testimony in any investigation or inquiry,
including the power to examine and
have access to bank accounts and
records;
(9) Punish for contempt in accordance
with the Rules of Court and under the
same procedure and with the same
penalties provided therein;
(10) Delegate to the Deputies, or its
investigators or representatives such
authority or duty as shall ensure the
effective exercise or performance of the
powers, functions, and duties herein or
hereinafter provided;
(11) Investigate and initiate the proper

action for the recovery of ill-gotten
and/or unexplained wealth amassed
after February 25, 1986 and the
prosecution of the parties involved
therein.
The Ombudsman shall give priority to
complaints filed against high ranking
government officials and/or those occupying
supervisory positions, complaints involving
grave offenses as well as complaints involving
large sums of money and/or properties.
Section 16. Applicability. The provisions of
this Act shall apply to all kinds of malfeasance,
misfeasance, and non-feasance that have been
committed by any officer or employee as
mentioned in Section 13 hereof, during his
tenure of office.
Section 17. Immunities. In all hearings,
inquiries, and proceedings of the Ombudsman,
including preliminary investigations of offenses,
nor person subpoenaed to testify as a witness
shall be excused from attending and testifying or
from producing books, papers, correspondence,
memoranda and/or other records on the ground
that the testimony or evidence, documentary or
otherwise, required of him, may tend to
incriminate him or subject him to prosecution:
provided, that no person shall be prosecuted
criminally for or on account of any matter
concerning which he is compelled, after having
claimed the privilege against self-incrimination,
to testify and produce evidence, documentary or
otherwise.
Under such terms and conditions as it may
determine, taking into account the pertinent
provisions of the Rules of Court, the
Ombudsman may grant immunity from criminal
prosecution to any person whose testimony or
whose possession and production of documents
or other evidence may be necessary to
determine the truth in any hearing, inquiry or
proceeding being conducted by the Ombudsman

or under its authority, in the performance or in
the furtherance of its constitutional functions and
statutory objectives. The immunity granted under
this and the immediately preceding paragraph
shall not exempt the witness from criminal
prosecution for perjury or false testimony nor
shall he be exempt from demotion or removal
from office.
(3) Are inconsistent with the general

course of an agency's functions, though
in accordance with law;
Any refusal to appear or testify pursuant to the

foregoing provisions shall be subject to
punishment for contempt and removal of the
immunity from criminal prosecution.
(6) Are otherwise irregular, immoral or

devoid of justification.
Section 18. Rules of Procedure.

(1) The Office of the Ombudsman shall
promulgate its rules of procedure for the
effective exercise or performance of its
powers, functions, and duties.
(4) Proceed from a mistake of law or an

arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary
powers but for an improper purpose; or
Section 20. Exceptions. The Office of the

Ombudsman may not conduct the necessary
investigation of any administrative act or
omission complained of if it believes that:
(1) The complainant has an adequate
remedy in another judicial or quasijudicial body;
(2) The rules of procedure shall include

a provision whereby the Rules of Court
are made suppletory.
(2) The complaint pertains to a matter

outside the jurisdiction of the Office of
the Ombudsman;
(3) The rules shall take effect after

fifteen (15) days following the
completion of their publication in the
Official Gazette or in three (3)
newspapers of general circulation in the
Philippines, one of which is printed in
the national language.
(3) The complaint is trivial, frivolous,

vexatious or made in bad faith;
Section 19. Administrative Complaints.

The Ombudsman shall act on all complaints
relating, but not limited to acts or omissions
which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive
or discriminatory;
(4) The complainant has no sufficient

personal interest in the subject matter of
the grievance; or
(5) The complaint was filed after one (1)
year from the occurrence of the act or
omission complained of.
Section 21. Official Subject to Disciplinary
Authority; Exceptions. The Office of the
Ombudsman shall have disciplinary authority
over all elective and appointive officials of the
Government and its subdivisions,
instrumentalities and agencies, including
Members of the Cabinet, local government,
government-owned or controlled corporations

and their subsidiaries, except over officials who
may be removed only by impeachment or over
Members of Congress, and the Judiciary.
Section 22. Investigatory Power. The Office
of the Ombudsman shall have the power to
investigate any serious misconduct in office
allegedly committed by officials removable by
impeachment, for the purpose of filing a verified
complaint for impeachment, if warranted.
In all cases of conspiracy between an officer or
employee of the government and a private
person, the Ombudsman and his Deputies shall
have jurisdiction to include such private person
in the investigation and proceed against such
private person as the evidence may warrant.
The officer or employee and the private person
shall be tried jointly and shall be subject to the
same penalties and liabilities.
Section 23. Formal Investigation.
(1) Administrative investigations
conducted by the Office of the
Ombudsman shall be in accordance
with its rules of procedure and
consistent with due process.
(2) At its option, the Office of the
Ombudsman may refer certain
complaints to the proper disciplinary
authority for the institution of appropriate
administrative proceedings against
erring public officers or employees,
which shall be determined within the
period prescribed in the civil service law.
Any delay without just cause in acting
on any referral made by the Office of the
Ombudsman shall be a ground for
administrative action against the officers
or employees to whom such referrals
are addressed and shall constitute a
graft offense punishable by a fine of not
exceeding Five thousand pesos

(P5,000.00).
(3) In any investigation under this Act
the Ombudsman may: (a) enter and
inspect the premises of any office,
agency, commission or tribunal; (b)
examine and have access to any book,
record, file, document or paper; and (c)
hold private hearings with both the
complaining individual and the official
concerned.
Section 24. Preventives Suspension. The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his
authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee
involves dishonesty, oppression or grave
filed against him.
The preventive suspension shall continue until
the case is terminated by the Office of the
Ombudsman but not more than six (6) months,
without pay, except when the delay in the
disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the
period of such delay shall not be counted in
computing the period of suspension herein
provided.
Section 25. Penalties.
(1) In administrative proceedings under
Presidential Decree No. 807, the
penalties and rules provided therein
shall be applied.
(2) In other administrative proceedings,

the penalty ranging from suspension
without pay for one (1) year to dismissal
with forfeiture of benefits or a fine
ranging from Five thousand pesos
(P5,000.00) to twice the amount
malversed, illegally taken or lost, or both
at the discretion of the Ombudsman,
taking into consideration circumstances
that mitigate or aggravate the liability of
the officer or employee found guilty of
the complaint or charges.
Section 26. Inquiries.
(1) The Office of the Ombudsman shall
inquire into acts or omissions of a public
officer, employee, office or agency
which, from the reports or complaints it
has received, the Ombudsman or his
Deputies consider to be:
(a) contrary to law or regulation;
(b) unreasonable, unfair,
oppressive, irregular or
inconsistent with the general
course of the operations and
functions of a public officer,
employee, office or agency;
(c) an error in the application or
interpretation of law, rules or
regulations, or a gross or
palpable error in the
appreciation of facts;
(d) based on improper motives
or corrupt considerations;
(e) unclear or inadequately
explained when reasons should
have been revealed; or
(f) inefficient performed or

otherwise objectionable.
(2) The Officer of the Ombudsman shall
receive complaints from any source in
whatever form concerning an official act
or omission.t shall act on the complaint
immediately and if it finds the same
entirely baseless, it shall dismiss the
same and inform the complainant of
such dismissal citing the reasons
therefor.f it finds a reasonable ground to
investigate further, it shall first furnish
the respondent public officer or
employee with a summary of the
complaint and require him to submit a
written answer within seventy-two (72)
hours from receipt thereof.f the answer
is found satisfactory, it shall dismiss the
case.
(3) When the complaint consists in delay
or refusal to perform a duty required by
law, or when urgent action is necessary
to protect or preserve the rights of the
complainant, the Office of the
Ombudsman shall take steps or
measures and issue such orders
directing the officer, employee, office or
agency concerned to:
(a) expedite the performance of
duty;
(b) cease or desist from the
performance of a prejudicial act;
preserve the rights of the

complainant.
(4) Any delay or refusal to comply with
the referral or directive of the
Ombudsman or any of his Deputies,
shall constitute a ground for
administrative disciplinary action against
the officer or employee to whom it was
addressed.
Section 27. Effectivity and Finality of
Decisions. (1) All provisionary orders of the
Office of the Ombudsman are immediately
effective and executory.
A motion for reconsideration of any order,
directive or decision of the Office of the
Ombudsman must be filed within five (5) days
after receipt of written notice and shall be
entertained only on any of the following grounds:
(1) New evidence has been discovered
which materially affects the order,
directive or decision;
(2) Errors of law or irregularities have
been committed prejudicial to the
interest of the movant. The motion for
reconsideration shall be resolved within
three (3) days from filing: provided, that
only one motion for reconsideration shall
be entertained.
(d) explain fully the

administrative act in question; or
Findings of fact by the Officer of the

Ombudsman when supported by substantial
evidence are conclusive. Any order, directive or
decision imposing the penalty of public censure
or reprimand, suspension of not more than one
(1) month's salary shall be final and
unappealable.
(e) take any other steps as may

be necessary under the
circumstances to protect and
In all administrative disciplinary cases, orders,

directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme
(c) correct the omission;
Court by filing a petition for certiorari within ten

(10) days from receipt of the written notice of the
order, directive or decision or denial of the
motion for reconsideration in accordance with
Rule 45 of the Rules of Court.
The above rules may be amended or modified
by the Office of the Ombudsman as the interest
of justice may require.
Section 28. Investigation in Municipalities,
Cities and Provinces. The Office of the
Ombudsman may establish offices in
municipalities, cities and provinces outside
Metropolitan Manila, under the immediate
supervision of the Deputies for Luzon, Visayas
and Mindanao, where necessary as determined
by the Ombudsman. The investigation of
complaints may be assigned to the regional or
sectoral deputy concerned or to a special
investigator who shall proceed in accordance
with the rules or special instructions or directives
of the Office of the Ombudsman. Pending
investigation the deputy or investigator may
issue orders and provisional remedies which are
immediately executory subject to review by the
Ombudsman. Within three (3) days after
concluding the investigation, the deputy or
investigator shall transmit, together with the
entire records of the case, his report and
conclusions to the Office of the Ombudsman.
Within five (5) days after receipt of said report,
the Ombudsman shall render the appropriate
order, directive or decision.
Section 29. Change of Unjust Laws. If the
Ombudsman believes that a law or regulation is
unfair or unjust, he shall recommend to the
President and to Congress the necessary
changes therein or the repeal thereof.
Section 30. Transmittal/Publication of
Decision. In every case where the
Ombudsman has reached a decision, conclusion
or recommendation adverse to a public official or
agency, he shall transmit his decision,
conclusion, recommendation or suggestion to

the head of the department, agency or
instrumentality, or of the province, city or
municipality concerned for such immediate
action as may be necessary. When transmitting
his adverse decision, conclusion or
recommendation, he shall, unless excused by
the agency or official affected, include the
substance of any statement the public agency or
official may have made to him by way of
explaining past difficulties with or present
rejection of the Ombudsman's proposals.
Section 31. Designation of Investigators and
Prosecutors. The Ombudsman may utilize
the personnel of his office and/or designate or
deputize any fiscal, state prosecutor or lawyer in
the government service to act as special
investigator or prosecutor to assist in the
investigation and prosecution of certain cases.
Those designated or deputized to assist him
herein provided shall be under his supervision
and control.
The Ombudsman and his investigators and
prosecutors, whether regular members of his
staff or designated by him as herein provided,
shall have authority to administer oaths, to issue
subpoena and subpoena duces tecum, to
summon and compel witnesses to appear and
testify under oath before them and/or bring
books, documents and other things under their
control, and to secure the attendance or
presence of any absent or recalcitrant witness
through application before the Sandiganbayan
or before any inferior or superior court having
jurisdiction of the place where the witness or
evidence is found.
Section 32. Rights and Duties of Witness.
(1) A person required by the
Ombudsman to provide the information
shall be paid the same fees and travel
allowances as are extended to
witnesses whose attendance has been
required in the trial courts. Upon request

of the witness, the Ombudsman shall
also furnish him such security for his
person and his family as may be
warranted by the circumstances. For
this purpose, the Ombudsman may, at
its expense, call upon any police or
constabulary unit to provide the said
security.
(2) A person who, with or without service
or compulsory process, provides oral or
documentary information requested by
the Ombudsman shall be accorded the
same privileges and immunities as are
extended to witnesses in the courts, and
shall likewise be entitled to the
assistance of counsel while being
questioned.
(3) If a person refuses to respond to the
Ombudsman's or his Deputy's
subpoena, or refuses to be examined, or
engages in obstructive conduct, the
Ombudsman or his Deputy shall issue
an order directing the person to appear
before him to show cause why he
should not be punished for contempt.
The contempt proceedings shall be
conducted pursuant to the provisions of
the Rules of Court.
Section 33. Duty to Render Assistance to the
Office of the Ombudsman. Any officer or
employee of any department, bureau or office,
subdivision, agency or instrumentality of the
Government, including government-owned or
controlled corporations and local governments,
when required by the Ombudsman, his Deputy
or the Special Prosecutor shall render
assistance to the Office of the Ombudsman.
Section 34. Annual Report. The Office of
the Ombudsman shall render an annual report of
its activities and performance to the President
and to Congress to be submitted within thirty
(30) days from the start of the regular session of

Congress.
Section 35. Malicious Prosecution. Any
person who, actuated by malice or gross bad
faith, files a completely unwarranted or false
complaint against any government official or
employee shall be subject to a penalty of one (1)
month and one (1) day to six (6) months
imprisonment and a fine not exceeding Five
thousand pesos (P5,000.00).
Section 36. Penalties for Obstruction. Any
person who willfully obstructs or hinders the
proper exercise of the functions of the Office of
the Ombudsman or who willfully misleads or
attempts to mislead the Ombudsman, his
Deputies and the Special Prosecutor in replying
to their inquiries shall be punished by a fine of
not exceeding Five thousand pesos (P5,000.00).
Section 37. Franking Privilege. All official
mail matters and telegrams of the Ombudsman
addressed for delivery within the Philippines
shall be received, transmitted, and delivered free
of charge: provided, that such mail matters when
addressed to private persons or nongovernment
offices shall not exceed one hundred and twenty
(120) grams. All mail matters and telegrams sent
through government telegraph facilities
containing complaints to the Office of the
Ombudsman shall be transmitted free of charge,
provided that the telegram shall contain not
more than one hundred fifty (150) words.
Section 38. Fiscal Autonomy. The Office of
the Ombudsman shall enjoy fiscal autonomy.
Appropriations for the Office of the Ombudsman
may not be reduced below the amount
appropriated for the previous years and, after
approval, shall be automatically and regularly
released.
Section 39. Appropriations. The
appropriation for the Office of the Special
Prosecutor in the current General Appropriations

Act is hereby transferred to the Office of the
Ombudsman. Thereafter, such sums as may be
necessary shall be included in the annual
General Appropriations Act.
Section 40. Separability Clause. If any
provision of this Act is held unconstitutional,
other provisions not affected thereby shall

remain valid and binding.
Section 41. Repealing Clause. All laws,
presidential decrees, letters of instructions,
executive orders, rules and regulations insofar
as they are inconsistent with this Act, are hereby
repealed or amended as the case may be.
Section 42. Effectivity. This Act shall take

effect after fifteen (15) days following its
publication in the Official Gazette or in three (3)
newspapers of general circulation in the
Philippines.
Approved: November 17, 1989.

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G.R. No.

96817 July 25, 1991

Republic of the Philippines

Zaldy B. Docena for petitioner.

Pursuant to the provisions of existing

Two persons are claiming the same position in

Pursuant thereto, the petitioner took his oath of

By virtue hereof, you may qualify and

Department of Local Government

Very truly yours,

Mr. AGUSTIN B. DOCENA

Pursuant to the provisions of existing

Thru: The Honorable Governor

dated November 19, 1990 was

Please be guided accordingly.

Atty. SOCRATES ALAR

On December 18, 990, the SPES passed

Borongan, Eastern Samar

Mandaluyong, Metro Manila

Borongan, Eastern Samar

Mr. Socrates Alar

The reaction of the SPES was to pass,

The Sangguniang Panlalawigan

Mr. Agustin Docena

December 19, 1990

In view of the foregoing, the

Very truly yours,

PNCC Bldg., EDSA Corner

OFFICE OF THE SECRETARY

to the same post in favor of Atty.

This action was affirmed in a First Indorsement

On the same date, Provincial Prosecutor Dario

OFFICE OF THE SECRETARY

Please be informed that the

Pending resolution of this case, we issued a

office even on equitable grounds because he

subsequent appointment of Alar had invalidated

warranto, as his purpose is to challenge Alar's

office of a Member of the Sangguniang

Republic of the Philippines

districts of the Province of Albay were elected

(Rollo, pp. 27-28)

G.R. No. 109005 January 10, 1994

Name No. of Votes

Due to the suspension of Governor Romeo

voted therein. He further argues that a district

Vice-Governor, Mayor, and

We are not persuaded.

NAME District Registered Votes

This plain-meaning rule or

Republic of the Philippines

G.R. No. 116763 April 19, 1996

Bayan of San Nicolas but the recommendation

section "C" of Section 45 of

Petitioners filed a motion for reconsideration, but

(b) Except for the sangguniang

(d) In case of vacancy in the

the power to appoint implies the power to

Bayan, the Sangguniang Panlalawigan. Their

We think that the phrase "sanggunian

II. Where the Vacancy is Caused by a

for the first must approximate the provision for

Al Nacino was appointed by the provincial