Republic of the Philippines

REGIONAL TRIAL COURT

Second Judicial Region
Branch 03
Tuguegarao City

MANUEL N. MAMBA, in his

capacity as Governor of the
Province of Cagayan,
Petitioner
Versus Special Civil Action No. 63

MELVIN K. VARGAS, JR., in

his capacity as Vice Governor
and Presiding Officer of the
Sangguniang Panlalawigan of
Cagayan, and JESUS
FLORENCIO A. VARGAS,
VILMER V. VILORIA, PERLA C.
TUMALIUAN, ROSAURO
RODRIGO G. RESUELLO,
KAREN KAYE T. TURINGAN,
RODRIGO C. DE ASIS, MARIA
OLIVIA B. PASCUAL, JEAN
ALPHONSE D. PONCE,
CRISTOPHER T. BARCENA,
MAILA ROSARIO S. TING-
QUE, HILARIO “Larry” S. TING
and ARNOLD T. LAYUS, JR.,
in their capacity as members
of the Sangguniang
Panlalawigan of Cagayan,

Respondents.
x---------------------------------------------------------x

MOTION FOR RECONSIDERATION

Comes now the Respondents, except Respondents De Asis and
Resuello, as represented by MELVIN K. VARGAS, JR., by the
undersigned counsels, and unto this HONORABLE COURT, most
respectfully move for Reconsideration of the August 14, 2017
Decision of this Honorable Court partially granting the Petition
which was received on August 16, 2017 and in support thereof aver
the following:

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1. The Decision of this Honorable Court partially granted the Petition
and directed the Respondents to continue to hold sessions on the
annual budget for the current fiscal year during its regular sessions
without additional remuneration and without other business
during such sessions until an appropriation ordinance is enacted;

2. With all due respect, it is the position of the herein Respondents

that this Honorable Court might have erred in interpreting section
323 of the Local Government Code;

3. However, it must be pointed out that the herein Respondents

wishes to reiterate that the Sangguniang Panlalawigan of Cagayan
is conducting sessions for the purpose of deliberating the annual
budget of the province of Cagayan even before the filing of this
instant Petition which was never rebutted by the Petitioner until
the present. The Sanggunian has always been deliberating the
annual budget during its regular sessions and committee hearings.
What the Petitioner wants is that the Sanggunian should tackle
exclusively the Annual budget on a daily basis which was denied by
this Honorable Court. This Motion for recons

4. For clarity section 323 of the Local Government Code is hereto

quoted as follows:

“Section 323. Failure to Enact the Annual Appropriations. -

In case the sanggunian concerned fails to pass the
ordinance authorizing the annual appropriations at the
beginning of the ensuing fiscal year, it shall continue to
hold sessions, without additional remuneration for its
members, until such ordinance is approved, and no other
business may be taken up during such sessions. If the
sanggunian still fails to enact such ordinance after ninety
(90) days from the beginning of the fiscal year, the
ordinance authorizing the appropriations of the preceding
year shall be deemed reenacted and shall remain in force
and effect until the ordinance authorizing the proposed
appropriations is passed by the sanggunian concerned.
However, only the annual appropriations for salaries and
wages of existing positions, statutory and contractual
obligations, and essential operating expenses authorized in
the annual and supplemental budgets for the preceding
year shall be deemed reenacted and disbursement of funds
shall be in accordance therewith.

In the implementation of such reenacted ordinance, the

local treasurer concerned shall exclude from the estimates

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 of income for the preceding fiscal year those realized from
nonrecurring sources, like national aids, proceeds from
loans, sale of assets, prior year adjustments, and other
analogous sources of income. No ordinance authorizing
supplemental appropriations shall be passed in place of
the annual appropriations.

In case the revised income estimates be less than the

aggregate reenacted appropriations, the local treasurer
concerned shall accordingly advise the sanggunian
concerned which shall, within ten (10) days from the
receipt of such advice, make the necessary adjustments or
reductions. The revised appropriations authorized by the
sanggunian concerned shall then be the basis for
disbursements.”

5. It is the position of the herein Respondents that the Sanggunian

can take up other matters before or after the lapse of the 90 – day
period as provided in section 323 of the Local government code;

6. “It is a settled doctrine in statutory construction that the word

‘may’ denotes discretion and cannot be construed as having a
mandatory effect”1;

7. As the above provision is worded it is obvious that the word ‘shall’

which denotes a mandatory term was repeatedly used in most part
of the above cited provision;

8. If it was really the intention of the legislature when it enacted the

above provision of the local government to make it mandatory for
the Sanggunian not to take up other businesses during its sessions
until the annual appropriation ordinance is enacted then it should
have used the word ‘shall’ as repeatedly used in the same
provision;

9. However, in the above cited provision of the law, the word ‘shall’
was only used with respect to the conduct of sessions until such
ordinance is approved while it used the word ‘may’ with respect to
taking up other business during such sessions;

10. It is therefore clear from the foregoing that what is mandatory

is the conduct of sessions by the sanggunian until the
appropriation ordinance is approved but nowhere does the
provision state that these sessions must be exclusively devoted to
deliberation on the annual budget and nothing else;
1
Tolentino vs. Court of Appeals, Gr. No. 128759, August 1, 2002
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11. Additionally, to construe the above provision of the law as
interpreted by this honourable Court would pose a very dangerous
precedent;

12. It must be pointed out that the Local Government Code

enumerated the powers and duties of the sanggunian. Pertinent
provisions of the law are hereto quoted, to wit:

“Section 468. Powers, Duties, Functions and

Compensation.

(a) The sangguniang panlalawigan, as the legislative body of

the province, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the
province and its inhabitants pursuant to Section 16 of this
Code in the proper exercise of the corporate powers of the
province as provided for under Section 22 of this Code, and
shall:

(1) Approve ordinances and pass resolutions necessary for

an efficient and effective provincial government and, in this
connection, shall:

(i) Review all ordinances approved by the sangguniang of

component cities and municipalities and executive orders
issued by the mayors of said component units to determine
whether these are within the scope of the prescribed powers
of the sanggunian and of the mayor;

(ii) Maintain peace and order by enacting measures to

prevent and suppress lawlessness, disorder, riot, violence,
rebellion or sedition and impose penalties for the violation
of said ordinances;

(iii) Approve ordinances imposing a fine not exceeding Five

thousand pesos (P5,000.00) or imprisonment not exceeding
one (1) year, or both in the discretion of the court, for the
violation of a provincial ordinance;

(iv) Adopt measures to protect the inhabitants of the

province from harmful effects of man-made or natural
disasters and calamities, and to provide relief services and
assistance for victims during and in the aftermath of said
disasters and calamities and their return to productive
livelihood following said events;

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(v) Enact ordinances intended to prevent, suppress and
impose appropriate penalties for habitual drunkenness in
public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill repute,
gambling and other prohibited games of chance, fraudulent
devices and ways to obtain money or property, drug
addiction, maintenance of drug dens, drug pushing,
juvenile delinquency, the printing, distribution or exhibition
of obscene or pornographic materials or publications, and
other activities inimical to the welfare and morals of the
inhabitants of the province;

(vi) Protect the environment and impose appropriate

penalties for acts which endanger the environment, such as
dynamite fishing and other forms of destructive fishing,
illegal logging and smuggling of logs, smuggling of natural
resources products and of endangered species of flora and
fauna, slash and burn farming, and such other activities
which result in pollution acceleration of eutrophication of
rivers and lakes, or of ecological imbalance;

(vii) Subject to the provisions of this Code and pertinent

laws, determine the powers and duties of officials and
employees of the province;

(viii) Determine the positions and the salaries, wages,

allowances and other emoluments and benefits of officials
and employees paid wholly or mainly from provincial funds
and provide for expenditures necessary for the proper
conduct of programs, projects, services, and activities of the
provincial government;

(ix) Authorize the payment of compensation to a qualified

person not in the government service who fills up a
temporary vacancy, or grant honorarium to any qualified
official or employee designated to fill a temporary vacancy
in a concurrent capacity, at the rate authorized by law;

(x) Provide a mechanism and the appropriate funds

therefor, to ensure the safety and protection of all provincial
government property, public documents, or records such as
those relating to property inventory, land ownership,
records of births, marriages, deaths, assessments, taxation,
accounts, business permits, and such other records and
documents of public interest in the offices and departments
of the provincial government; and

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(xi) When the finances of the provincial government allow,
provide for additional allowances and other benefits to
judges, prosecutors, public elementary and high school
teachers, and other national government officials stationed
or assigned to the province.

(2) Generate and maximize the use of resources and

revenues for the development plans, program objectives and
priorities of the province as provided for under Section 18 of
this Code, with particular attention to agro-industrial
development and country-wide growth and progress and
relative thereto, shall:

(i) Enact the annual and supplemental appropriations of

the provincial government and appropriate funds for
specific programs, projects, services and activities of the
province, or for other purposes not contrary to law, in order
to promote the general welfare of the province and its
inhabitants;

(ii) Subject to the provisions of Book II of this Code and

applicable laws and upon the majority vote of all the
members of the sangguniang panlalawigan, enact
ordinances levying taxes, fees and charges, prescribing the
rates thereof for general and specific purposes, and
granting tax exemptions, incentives or reliefs;

(iii) Subject to the provisions of Book II of this Code and

applicable laws and upon the majority vote of all the
members of the sangguniang panlalawigan, authorize the
provincial governor to negotiate and contract loans and
other forms of indebtedness;

(iv) Subject to the provisions of Book II of this Code and

applicable laws and upon the majority vote of all the
members of the sangguniang panlalawigan, enact
ordinances authorizing the floating of bonds or other
instruments of indebtedness, for the purpose of raising
funds to finance development projects;

(v) Appropriate funds for the construction and maintenance

or the rental of buildings for the use of the province; and
upon the majority vote of all the members of the
sangguniang panlalawigan, authorize the provincial
governor to lease to private parties such public buildings
held in a proprietary capacity, subject to existing laws,
rules and regulations;

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(vi) Prescribe reasonable limits and restraints on the use of
property within the jurisdiction of the province;

(vii) Review the comprehensive land use plans and zoning

ordinances of component cities and municipalities and
adopt a comprehensive provincial land use plan, subject to
existing laws; and

(viii) Adopt measures to enhance the full implementation of

the national agrarian reform program in coordination with
the Department of Agrarian Reform;

(3) Subject to the provisions of Book II of this Code, grant

franchises, approve the issuance of permits or licenses, or
enact ordinances levying taxes, fees and charges upon such
conditions and for such purposes intended to promote the
general welfare of the inhabitants of the province, and
pursuant to this legislative authority, shall:

(i) Fix and impose reasonable fees and charges for all
services rendered by the provincial government to private
persons or entities; and

(ii) Regulate and fix the license fees for such activities as
provided for under this Code.

(4) Approve ordinances which shall ensure the efficient and

effective delivery of basic services and facilities as provided
for under Section 17 of this Code, and, in addition to said
services and facilities, shall:

(i) Adopt measures and safeguards against pollution and for

the preservation of the natural ecosystem in the province,
in consonance with approved standards on human
settlements and environmental sanitation;

(ii) Subject to applicable laws, facilitate or provide for the

establishment and maintenance of waterworks system or
district waterworks for supplying water to inhabitants of
component cities and municipalities;

(iii) Subject to the availability of funds and to existing laws,

rules and regulations, provide for the establishment and
operation of vocational and technical schools and similar
post-secondary institutions; and, with the approval of the
Department of Education, Culture and Sports and subject
to existing laws on tuition fees, fix reasonable tuition fees
and other school charges in educational institutions
supported by the provincial government;

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 (iv) Establish a scholarship fund for the poor but deserving
students in schools located within its jurisdiction or for
students residing within the province;

(v) Approve measures and adopt quarantine regulations to

prevent the introduction and spread of diseases within its
territorial jurisdiction;

(vi) Provide for the care of paupers, the aged, the sick,
persons of unsound mind, abandoned minors, abused
children, disabled persons, juvenile delinquents, drug
dependents, and other needy and disadvantaged persons,
particularly children and youth below eighteen (18) years of
age; subject to availability of funds, establish and support
the operation of centers and facilities for said needy and
disadvantaged persons; and facilitate efforts to promote the
welfare of families below the poverty threshold, the
disadvantaged, and the exploited;

(vii) Establish and provide the maintenance and

improvement of jails and detention centers, institute a
sound jail management program, and appropriate funds for
the subsistence of detainees and convicted prisoners in the
province;

(viii) Establish a provincial council whose purpose is the

promotion of culture and the arts, coordinate with
government agencies and non-governmental organizations
and, subject to the availability of funds, appropriate funds
for the support and development of the same;

(ix) Establish a provincial council for the elderly which shall

formulate policies and adopt measures mutually beneficial
to the elderly and to the province; and subject to the
availability of funds, appropriate funds to support programs
and projects for the elderly; and provide incentives for non-
governmental agencies and entities to support the programs
and projects of the elderly; and

(5) Exercise such other powers and perform such other

duties and functions as may be prescribed by law or
ordinance.”

13. If the Honorable Court will maintain its interpretation of the

law as contained in its ruling, then all the above equally important
duties of the Sanggunian will be abandoned or neglected to which

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 the members therein might also be liable administratively,
criminally or civilly;

14. Moreover, this will result in a situation wherein if the local

executive department will want to paralyze the functions of the
local sanggunian then what the former will do is just to delay the
submission of the executive budget or refuse to submit documents
needed by the latter in order that they could not pass the annual
budget and will not have anything to do but will wait for it and
while doing so neglects its other functions and duties as provided
in the laws;

15. The foregoing is what is happening at the moment in the

province of Cagayan wherein there is stale mate as the Executive
refuses to submit or comply with the requests of the Sanggunian
necessary for the deliberation on the Annual Budget;

16. Also in support of this Motion for Reconsideration is a DILG

Opinion No. 20 Series of 2014 wherein said office opined that the
saggunian may take up other matters after the lapse of the 90 –
day period and a copy of which is hereto attached as Annex ‘A’;

17. Herein respondents also maintains their arguments as

contained in their memorandum that this Petition should be
dismissed as Petitioner failed to show that the right sought to
be enforced must be certain and clear, and that the writ
will not issue in cases where the right is doubtful. Just
as fundamental is the principle governing the issuance of
mandamus that the duties to be performed must be such
as are clearly and peremptorily enjoined by law or by
reason of official station. This argument is supported by
the fact that the subject provision which is the sole basis of
this Petition is susceptible to several interpretations;

18. Finally, herein Respondents are in a quandary what really is

the position of the Petitioner. He argues and maintains that the
Sanggunian cannot take up other matters when the annual budget
is not yet approved or enacted, then why is it that the Petitioner
keeps on asking the Sanggunian various requests such as
Authority to enter into contracts and the like which requires the
action of the Sanggunian and would be a business outside the
deliberation on the annual budget?

PRAYER
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 WHEREFORE, premises considered, it is most respectfully
prayed unto this Honorable Court to set aside the subject Decision
and to issue another Order:

a. Dismissing the Petition for lack of merit; or in the alternative

b. Modify its decision to the effect that the Sanggunian may take
up other matters during its regular sessions in addition to the
deliberations on the annual budget; and

c. To grant such other reliefs that are just and equitable under the
premises.

Tuguegarao City, Cagayan. August 31, 2017.

MAT J. MOLINA
Counsel for the Respondents
Block 09 Lot 16, Virgo Street, Consuelo Heights
Leonarda, Tuguegarao City, Cagayan
Roll No. 57718-2010, PTR No. 7115503 1/4/2017/Cagayan
IBP O.R. 947082/1/4/2017/Cagayan
MCLE Compliance Certificate No. V-0014393

NOTICE OF HEARING

Atty. Vicente D. Lasam

No.135, Gonzaga Street
Tuguegarao City, Cagayan

Greetings!

Please take notice that this Motion is being requested to be set

for hearing on Friday, September 8, 2017 at 2:00 in the
afternoon or to any schedule that is most convenient to the
honourable Court.

Thank you.

MAT J. MOLINA

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 REQUEST

The Clerk of Court

RTC Branch 3
Tuguegarao City, Cagayan

Greetings!

Please schedule this Motion to be set for hearing on Friday,

September 8, 2017 at 2:00 in the afternoon or to any schedule
that is most convenient to the honourable Court.

Thank you.

MAT J. MOLINA

EXPLANATION

This Pleading was furnished to the Counsel for Petitioner by

registered mail because of lack of personnel and time
constraints.

MAT J. MOLINA

Copy furnished:
Atty. Vicente D. Lasam
No.135, Gonzaga Street
Tuguegarao City, Cagayan
Personal Service ____________________________

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