G.R. No.

196804               October 9, 2012

MAYOR BARBARA RUBY C. TALAGA, Petitioner, 

vs.
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents.

x-----------------------x

G.R. No. 197015

PHILIP M. CASTILLO, Petitioner, 
vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents.

DECISION

BERSAMIN, J.:

In focus in these consolidated special civil actions are the disqualification of a substitute who was
proclaimed the winner of a mayoralty election; and the ascertainment of who should assume the
office following the substitute’s disqualification.

The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution issued
on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the dispositive
portion of which states:

WHEREFORE, judgment is hereby rendered:

1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second
Division;

2. GRANTING the petition in intervention of Roderick A. Alcala;

3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as mayor of

Lucena City and CANCELLING the Certificate of Canvass and Proclamation issued therefor;

4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the
functions of the Office of the Mayor;

5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44 of
the Local Government Code;

6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution to
the Office of the President of the Philippines, the Department of Interior and Local
Government, the Department of Finance and the Secretary of the Sangguniang Panglunsod
of Lucena City.

Let the Department of Interior and Local Government and the Regional Election Director of Region
IV of COMELEC implement this resolution.
SO ORDERED.1

Antecedents

On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo
(Castillo) respectively filed their certificates of candidacy (CoCs) for the position of Mayor of Lucena
City to be contested in the scheduled May 10, 2010 national and local elections.2

Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was eligible for
the office he was seeking to be elected to.

Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition denominated
as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of Candidacy of Ramon
Y. Talaga, Jr. as Mayor for Having Already Served Three (3) Consecutive Terms as a City Mayor of
Lucena, which was docketed as SPA 09-029 (DC).4 He alleged

therein that Ramon, despite knowing that he had been elected and had served three consecutive
terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010
national and local elections.

The pertinent portions of Castillo’s petition follow:

1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao Crossing,
Lucena City but may be served with summons and other processes of this Commission at
the address of his counsel at 624 Aurora Blvd., Lucena City 4301;

2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of
Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the City Mayor,
City Hall, Lucena City, where he may be served with summons and other processes of this
Commission;

3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the 2007
local elections, is running for city mayor of Lucena under the Liberal party this coming 10
May 2010 local elections and has filed his certificate of candidacy for city mayor of Lucena;

4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local
elections based on the records of the Commission on Elections of Lucena City and had fully
served the aforesaid three (3) terms without any voluntary and involuntary interruption;

5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October 2005,
the public service as city mayor of the respondent is continuous and uninterrupted under the
existing laws and jurisprudence;

6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of the
respondent, hence, such act is outrightly unconstitutional, illegal, and highly immoral;

7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for City
Mayor of Lucena for this coming 10 May 2010 national and local elections;
 8. Under the Constitution and existing Election Laws, New Local Government Code of the
Philippines, and jurisprudence the respondent is no longer entitled and is already disqualified
to be a city mayor for the fourth consecutive term;

9. The filing of the respondent for the position of city mayor is highly improper, unlawful and
is potentially injurious and prejudicial to taxpayers of the City of Lucena; and

10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City based
on the existing law and jurisprudence.5

The petition prayed for the following reliefs, to wit:

WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed
by the respondent be denied due course to or cancel the same and that he be declared as a
disqualified candidate under the existing Election Laws and by the provisions of the New Local
Government Code.6 (Emphasis supplied.)

Ramon countered that that the Sandiganbayan had preventively suspended him from office during
his second and third terms; and that the three-term limit rule did not then apply to him pursuant to
the prevailing jurisprudence7 to the effect that an involuntary separation from office amounted to an
interruption of continuity of service for purposes of the application of the three-term limit rule.

In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary incapacity,
was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on December 30,
2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve, taking into account the
intervening ruling in Aldovino. Relevant portions of his Manifestation with Motion to Resolve are
quoted herein, viz:

4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City, the
rule that ‘where the separation from office is caused by reasons beyond the control of the officer –
i.e. involuntary – the service of term is deemed interrupted’ has not yet been overturned by the new
ruling of the Supreme Court. As a matter of fact, the prevailing rule then of the Honorable
Commission in [sic] respect of the three (3)-term limitation was its decision in the case of Aldovino,
et al. vs. Asilo where it stated:

"Thus, even if respondent was elected during the 2004 elections, which was supposedly his third
and final term as city councilor, the same cannot be treated as a complete service or full term in
office since the same was interrupted when he was suspended by the Sandiganbayan Fourth
Division. And the respondent actually heeded the suspension order since he did not receive his
salary during the period October 16-31 and November 1-15 by reason of his actual suspension from
office. And this was further bolstered by the fact that the DILG issued a

Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)

5. Clearly, there was no misrepresentation on the part of respondent as would constitute a ground
for the denial of due course to and/or the cancellation of respondent’s certificate of candidacy at the
time he filed the same. Petitioner’s ground for the denial of due course to and/or the cancellation of
respondent’s certificate of candidacy thus has no basis, in fact and in law, as there is no ground to
warrant such relief under the Omnibus Election Code and/or its implementing laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the three
(3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for the position of
Mayor of Lucena City having served three (3) (albeit interrupted) terms as Mayor of Lucena City prior
to the filing of his certificate of candidacy for the 2010 elections.

7. In view of the foregoing premises and new jurisprudence on the matter, respondent respectfully
submits the present case for decision declaring him as DISQUALIFIED to run for the position of
Mayor of Lucena City.9

Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in the
May 10, 2010 national and local elections, Ramon did not withdraw his CoC.

Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division issued a
Resolution on April 19, 2010,10 disposing as follows:

WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly, Ramon
Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for the 10 May
2010 National and Local Elections.

SO ORDERED.

Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010 Resolution of
the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4, 2010 an Ex-parte
Manifestation of Withdrawal of the Pending Motion for Reconsideration.12 At 4:30 p.m. on the same
date, Barbara Ruby filed her own CoC for Mayor of Lucena City in substitution of Ramon, attaching
thereto the Certificate of Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the
party that had nominated Ramon.13

On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of Withdrawal,
declared the COMELEC First Division’s Resolution dated April 19, 2010 final and executory.14

On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the votes
cast in his favor were counted in favor of Barbara Ruby as his substitute candidate, resulting in
Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s 39,615 votes.15

Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the suspension of
Barbara Ruby’s proclamation.16

It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its Law
Department,17gave due course to Barbara Ruby’s CoC and CONA through Resolution No. 8917,
thereby including her in the certified list of candidates.18 Consequently, the CBOC proclaimed
Barbara Ruby as the newly-elected Mayor of Lucena City.19

On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute Ramon
because his CoC had been cancelled and denied due course; and Barbara Ruby could not be
considered a candidate because the COMELEC En Banc had approved her substitution three days
after the elections; hence, the votes cast for Ramon should be considered stray.

In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained the
validity of her substitution. She countered that the COMELEC En Banc did not deny due course to or
cancel Ramon’s COC, despite a declaration of his disqualification, because there was no finding that
he had committed misrepresentation, the ground for the denial of due course to or cancellation of his
COC. She prayed that with her valid substitution, Section 12 of Republic Act No. 900622 applied,
based on which the votes cast for Ramon were properly counted in her favor.

On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought to
intervene,23positing that he should assume the post of Mayor because Barbara Ruby’s substitution
had been invalid and Castillo had clearly lost the elections.

On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and Alcala’s
petition-in-intervention,24 holding:

In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis for
the proclamation of Ruby on that date. He, however, failed to file any action within the prescribed
period either in the Commission or the Supreme Court assailing the said resolution. Thus, the said
resolution has become final and executory. It cannot anymore be altered or reversed.

xxxx

x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was actually
for the disqualification of Ramon for having served three consecutive terms, which is a ground for his
disqualification under the Constitution in relation to Section 4(b)3 of Resolution 8696. There was no
mention therein that Ramon has committed material representation that would be a ground for the
cancellation or denial of due course to the CoC of Ramon under Section 78 of the Omnibus Election
Code. The First Division, in fact, treated the petition as one for disqualification as gleaned from the
body of the resolution and its dispositive portion quoted above. This treatment of the First Division of
the petition as one for disqualification only is affirmed by the fact that its members signed Resolution
No. 8917 where it was clearly stated that the First Division only disqualified Ramon.

Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable. Ramon
was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered as stray votes
but should be counted in favor of Ruby since the substituted and the substitute carry the same
surname – Talaga, as provided in Section 12 of Republic Act No. 9006.

xxxx

Moreover, there is no provision in the Omnibus Election Code or any election laws for that matter
which requires that the substitution and the Certificate of Candidacy of the substitute should be
approved and given due course first by the Commission or the Law Department before it can be
considered as effective. All that Section 77 of the Omnibus Election Code as implemented by
Section 13 of Resolution No. 8678 requires is that it should be filed with the proper office. The
respondent is correct when she argued that in fact even the BEI can receive a CoC of a substitute
candidate in case the cause for the substitution happened between the day before the election and
mid-day of election day. Thus, even if the approval of the substitution was made after the election,
the substitution became effective on the date of the filing of the CoC with the Certificate of
Nomination and Acceptance.

There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of Lucena
City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation, thus, of Ruby
as mayor elect of Lucena City is in order. Hence, we find no cogent reason to annul the proclamation
of respondent Barbara Ruby C. Talaga as the duly elected Mayor of the City of Lucena after the
elections conducted on May 10, 2010.25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En Banc
issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second Division’s
ruling.26

Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a hearing as
a mere incident of the COMELEC’s ministerial duty to receive the COCs of substitute candidates; (b)
Resolution No. 8917 was based on the wrong facts; and (c) Ramon’s disqualification was resolved
with finality only on May 5, 2010, the COMELEC En Banc concluded that Barbara Ruby could not
have properly substituted Ramon but had simply become an additional candidate who had filed her
COC out of time; and held that Vice Mayor Alcala should succeed to the position pursuant to Section
44 of the Local Government Code (LGC).27

Issues

The core issue involves the validity of the substitution by Barbara Ruby as candidate for the position
of Mayor of Lucena City in lieu of Ramon, her husband.

Ancillary to the core issue is the determination of who among the contending parties should assume
the contested elective position.

Ruling

The petitions lack merit.

1.

Existence of a valid CoC is a condition

sine qua non for a valid substitution

The filing of a CoC within the period provided by law is a mandatory requirement for any person to
be considered a candidate in a national or local election. This is clear from Section 73 of the
Omnibus Election Code, to wit:

Section 73. Certificate of candidacy — No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.

Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:

Section 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
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for filing
them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular election, the
candidates from among whom they are to make the choice; and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. If the law does not confine to the duly-registered
candidates the choice by the voters, there may be as many persons voted for as there are voters,
and votes may be cast even for unknown or fictitious persons as a mark to identify the votes in favor
of a candidate for another office in the same election.28 Moreover, according to Sinaca v. Mula,29 the
CoC is:

x x x in the nature of a formal manifestation to the whole world of the candidate’s political creed or
lack of political creed. It is a statement of a person seeking to run for a public office certifying that he
announces his candidacy for the office mentioned and that he is eligible for the office, the name of
the political party to which he belongs, if he belongs to any, and his post-office address for all
election purposes being as well stated.

Accordingly, a person’s declaration of his intention to run for public office and his affirmation that he
possesses the eligibility for the position he seeks to assume, followed by the timely filing of such
declaration, constitute a valid CoC that render the person making the declaration a valid or official
candidate.

There are two remedies available to prevent a candidate from running in an electoral race. One is
through a petition for disqualification and the other through a petition to deny due course to or cancel
a certificate of candidacy. The Court differentiated the two remedies in Fermin v. Commission on
Elections,30 thuswise:

x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a petition
to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While a
person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the
person whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.31

Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code (i.e.,
prohibited acts of candidates, and the fact of a candidate’s permanent residency in another country
when that fact affects the residency requirement of a candidate) are separate and distinct from the
grounds for the cancellation of or denying due course to a COC (i.e., nuisance candidates under
Section 69 of the Omnibus Election Code; and material misrepresentation under Section 78 of the
Omnibus Election Code), the Court has recognized in Miranda v. Abaya32that the following
circumstances may result from the granting of the petitions, to wit:

(1) A candidate may not be qualified to run for election but may have filed a valid CoC;

(2) A candidate may not be qualified and at the same time may not have filed a valid CoC;
and

(3) A candidate may be qualified but his CoC may be denied due course or cancelled.

In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his CoC
before the elections, Section 77 of the Omnibus Election Code provides the option of substitution, to
wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last day for the
filing of certificates of candidacy, an official candidate of a registered or accredited political party
dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the
same political party may file a certificate of candidacy to replace the candidate who died, withdrew or
was disqualified. The substitute candidate nominated by the political party concerned may file his
certificate of candidacy for the office affected in accordance with the preceding sections not later
than mid-day of the day of the election. If the death, withdrawal or disqualification should occur
between the day before the election and mid-day of election day, said certificate may be filed with
any board of election inspectors in the political subdivision where he is a candidate, or, in the case of
candidates to be voted for by the entire electorate of the country, with the Commission.

Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a

candidate, Section 77 of the Omnibus Election Code unequivocally states that only an official
candidate of a registered or accredited party may be substituted.

Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no valid
substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear, too,
that a candidate who does not file a valid CoC may not be validly substituted, because a person
without a valid CoC is not considered a candidate in much the same way as any person who has not
filed a CoC is not at all a candidate.34

Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus
Election Code may not be substituted. A withdrawal of candidacy can only give effect to a
substitution if the substitute candidate submits prior to the election a sworn CoC as required by
Section 73 of the Omnibus Election Code.35

2.

Declaration of Ramon’s disqualification

rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted

In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition to
deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code.

In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36

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.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely: (a)
Ramon made a false representation in his CoC; (b) the false representation referred to a material
matter that would affect the substantive right of Ramon as candidate (that is, the right to run for the
election for which he filed his certificate); and (c) Ramon made the false representation with the
intention to deceive the electorate as to his qualification for public office or deliberately attempted to
mislead, misinform, or hide a fact that would otherwise render him ineligible.37The petition expressly
challenged Ramon’s eligibility for public office based on the prohibition stated in the Constitution and
the Local Government Code against any person serving three consecutive terms, and specifically
prayed that "the Certificate of Candidacy filed by the respondent Ramon be denied due course to or
cancel the same and that he be declared as a disqualified candidate."38

The denial of due course to or the cancellation of the CoC under Section 78 involves a finding not
only that a person lacks a qualification but also that he made a material representation that is
false.39 A petition for the denial of due course to or cancellation of CoC that is short of the
requirements will not be granted. In Mitra v. Commission on Elections,40 the Court stressed that there
must also be a deliberate attempt to mislead, thus:

The false representation under Section 78 must likewise be a "deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of
the requirement, it must be made with the intention to deceive the electorate as to the would-be
candidate’s qualifications for public office. Thus, the misrepresentation that Section 78 addresses
cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to
deceive is patently absent, or where no deception on the electorate results. The deliberate character
of the misrepresentation necessarily follows from a consideration of the consequences of any
material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he
cannot serve; in both cases, he can be prosecuted for violation of the election laws.

It is underscored, however, that a Section 78 petition should not be interchanged or confused with a
Section 68 petition. The remedies under the two sections are different, for they are based on
different grounds, and can result in different eventualities.41 A person who is disqualified under
Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied
due course under Section 78 is not considered as a candidate at all because his status is that of a
person who has not filed a CoC.42 Miranda v. Abaya43 has clarified that a candidate who is
disqualified under Section 68 can be validly substituted pursuant to Section 77 because he remains
a candidate until disqualified; but a person whose CoC has been denied due course or cancelled
under Section 78 cannot be substituted because he is not considered a candidate. 1âwphi1

To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by the
Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 of the Local Government Code reiterates the constitutional three-term limit for all elective
local officials, to wit:

Section 43. Term of Office. – (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected. (Emphasis supplied.)

The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office." The Court underscored this objective in Aldovino, Jr. v. Commission on
Elections,44 stating:

x x x The framers of the Constitution specifically included an exception to the people’s freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same
office. To allow petitioner Latasa to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive terms as mayor of the
City of Digos, petitioner would then be possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.

To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from
asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his
CoC was invalid and ineffectual ab initio for containing the incurable defect consisting in his false
declaration of his eligibility to run. The invalidity and inefficacy of his CoC made his situation even
worse than that of a nuisance candidate because the nuisance candidate may remain eligible
despite cancellation of his CoC or despite the denial of due course to the CoC pursuant to Section
69 of the Omnibus Election Code.45

Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to
Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid,
considering that for all intents and purposes the COMELEC’s declaration of his disqualification had
the effect of announcing that he was no candidate at all.

We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda v.
Abaya aptly put it:

Even on the most basic and fundamental principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be substituted, for how can a person take the
place of somebody who does not exist or who never was. The Court has no other choice but to rule
that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a
valid certificate of candidacy seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in
the first place because, if the disqualified candidate did not have a valid and seasonably filed
certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he
cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called
"substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing
thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our
Constitution.47 (Emphasis supplied)

3.
Granting without any qualification of petition in
SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC

That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether his CoC
should be deemed cancelled or not.

In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not given
due course and/or cancelled." The COMELEC categorically granted "the petition" and then
pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified." The

Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel
Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The Court explained:

The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by
the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due
course and cancelled.

The Court rules that it was.

Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the
position of Mayor for the City of Santiago be not given due course and/or cancelled.

Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the Comelec
ruled favorably in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition.
Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of
mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No.
98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was
GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply
ruled over and above the granting of the specific prayer for denial of due course and cancellation of
the certificate of candidacy. x x x.49

xxxx

x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019
is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo,
pp. 26-31). There is likewise no question that the said petition was GRANTED without any
qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any
further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition
was granted and that the certificate of candidacy of Jose "Pempe" Miranda was denied due course
and cancelled. x x x.50

The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of
cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to
any qualification.

Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC) specifically
sought both the disqualification of Ramon and the denial of due course to or cancellation of his CoC,
the COMELEC categorically stated in the Resolution dated April 19, 2010 that it was granting the
petition. Despite the COMELEC making no finding of material misrepresentation on the part of
Ramon, its granting of Castillo’s petition without express qualifications manifested that the
COMELEC had cancelled Ramon’s CoC based on his apparent ineligibility. The Resolution dated
April 19, 2010 became final and executory because Castillo did not move for its reconsideration, and
because Ramon later withdrew his motion for reconsideration filed in relation to it.

4.

Elected Vice Mayor must succeed

and assume the position of Mayor
due to a permanent vacancy in the office

On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the
doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to the
elections.52 Instead, he cites Cayat v. Commission on Elections,53where the Court said:

x x x In Labo there was no final judgment of disqualification before the elections. The doctrine on the
rejection of the second placer was applied in Labo and a host of other cases because the judgment
declaring the candidate’s disqualification in Labo and the other cases had not become final before
the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the
second placer have one common essential condition — the disqualification of the candidate had not
become final before the elections. This essential condition does not exist in the present case.

Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the 11
May 1992 elections. On election day itself, Labo was still legally a candidate. In the present case,
Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day,
Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy for Mayor of Buguias,
Benguet was legally non-existent in the 10 May 2004 elections.

The law expressly declares that a candidate disqualified by final judgment before an election cannot
be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:

Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension
of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis
added)

Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the elections,
which is the situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the
first situation is categorical: a candidate disqualified by final judgment before an election cannot be
voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became
final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in
Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng’s
proclamation is proper because he was the sole and only candidate, second to none.54

Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the position
of Mayor of Lucena City for having obtained the highest number of votes among the remaining
qualified candidates.

It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon
disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s Resolution No.
8804,55 a decision or resolution of a Division becomes final and executory after the lapse of five days
following its promulgation unless a motion for reconsideration is seasonably filed. Under Section 8,
Rule 20 of Resolution No. 8804, the decision of the COMELEC En Banc becomes final and
executory five days after its promulgation and receipt of notice by the parties.

The COMELEC First Division declared Ramon disqualified through its Resolution dated April 19,
2010, the copy of which Ramon received on the same date.56 Ramon filed a motion for
reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC Resolution No.
8696,58 but withdrew the motion on May 4, 2010,59ostensibly to allow his substitution by Barbara
Ruby. On his part, Castillo did not file any motion for reconsideration. Such circumstances indicated
that there was no more pending matter that could have effectively suspended the finality of the ruling
in due course. Hence, the Resolution dated April 19, 2010 could be said to have attained finality
upon the lapse of five days from its promulgation and receipt of it by the parties. This happened
probably on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on the
withdrawal by Ramon of his motion for reconsideration through the May 5, 2010 Resolution declaring
the April 19, 2010 Resolution of the COMELEC First Division final and executory.

Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming final prior
to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor. Barbara Ruby’s filing of
her CoC in substitution of Ramon significantly differentiated this case from the factual circumstances
obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was disqualified on April 17,
2004, and his disqualification became final before the May 10, 2004 elections. Considering that no
substitution of Cayat was made, Thomas R. Palileng, Sr., his rival, remained the only candidate for
the mayoralty post in Buguias, Benguet. In contrast, after Barbara Ruby substituted Ramon, the May
10, 2010 elections proceeded with her being regarded by the electorate of Lucena City as a bona
fide candidate. To the electorate, she became a contender for the same position vied for by Castillo,
such that she stood on the same footing as Castillo. Such standing as a candidate negated Castillo’s
claim of being the candidate who obtained the highest number of votes, and of being consequently
entitled to assume the office of Mayor.

Indeed, Castillo could not assume the office for he was only a second placer.  Labo, Jr. should be
1âwphi1

applied. There, the Court emphasized that the candidate obtaining the second highest number of
votes for the contested office could not assume the office despite the disqualification of the first
placer because the second placer was "not the choice of the sovereign will."60 Surely, the Court
explained, a minority or defeated candidate could not be deemed elected to the office.61 There was
to be no question that the second placer lost in the election, was repudiated by the electorate, and
could not assume the vacated position.62 No law imposed upon and compelled the people of Lucena
City to accept a loser to be their political leader or their representative.63

The only time that a second placer is allowed to take the place of a disqualified winning candidate is
when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is
disqualified; and (b) the electorate was fully aware in fact and in law of that candidate’s
disqualification as to bring such awareness within the realm of notoriety but the electorate still cast
the plurality of the votes in favor of the ineligible candidate.64 Under this sole exception, the
electorate may be said to have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case the eligible candidate with the
second highest number of votes may be deemed elected.65 But the exception did not apply in favor
of Castillo simply because the second element was absent. The electorate of Lucena City were not
the least aware of the fact of Barbara Ruby’s ineligibility as the substitute. In fact, the COMELEC En
Banc issued the Resolution finding her substitution invalid only on May 20, 2011, or a full year after
the decisions.

On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming the
position of Mayor of Lucena City. To begin with, there was no valid candidate for her to substitute
due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC before the elections in
accordance with Section 73 of the Omnibus Election Code. Lastly, she was not an additional
candidate for the position of Mayor of Lucena City because her filing of her CoC on May 4, 2010 was
beyond the period fixed by law. Indeed, she was not, in law and in fact, a candidate.66

A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should
be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:67

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-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. x x x

WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the
Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to pay
the costs of suit.

SO ORDERED.
 [G.R. No. 134213. July 20, 1999]

Romeo J. Gamboa, Jr., petitioner, vs. Marcelo Aguirre, Jr., and Juan Y.

Araneta, respondents.

DECISION
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.
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 formers 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 declaratory relief and prohibition. In the meantime, on October 2, 1995, the
Governor re-assumed 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.
Sections 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 Vice-Governor, 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 office. 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 its 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 sanggunian members of municipalities and

component cities.[12]

Not 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 country is considered effectively absent,
the Vice-Mayor should discharge the duties of the mayor during the latters 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.[18] This 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 Vice-Governor.
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
full-time occupant to discharge them.[19] Such 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 Vice-Governor
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 Governors (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.
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 take common issue on the power of the President (acting through the Secretary of
Local Government), to suspend and/or remove local officials.

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 non-career 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
Vice-Mayor 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
20-21, 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. C-10298 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; 9and 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 Luis-Santos 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 self-rule 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 respondent is an elective 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 categorically 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, 50 Commissioner 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 self- government.

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 self-reliant
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.

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.

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;

2. The new Constitution does not prescribe federalism;

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;

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;

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 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.

[G.R. No. 131255. May 20, 1998]

HON. EDUARDO NONATO JOSON, in his capacity as the Governor of

the Province of Nueva Ecija, petitioner, vs. EXECUTIVE
SECRETARY RUBEN D. TORRES, the DEPARTMENT OF THE
INTERIOR & LOCAL GOVERNMENTS, represented by
SECRETARY ROBERT Z. BARBERS and UNDERSECRETARY
MANUEL R. SANCHEZ, MR. OSCAR C. TINIO, in his capacity as
Provincial Vice-Governor of Nueva Ecija, and MR. LORETO P.
PANGILINAN, MR. CRISPULO S. ESGUERRA, MS. SOLITA C.
SANTOS, MR.VICENTE C. PALILIO, and MR. NAPOLEON G.
INTERIOR, in their capacity as Provincial Board Members of
Nueva Ecija, respondents.
 DECISION
PUNO, J.:

The case at bar involves the validity of the suspension from office of petitioner
Eduardo Nonato Joson as Governor of the province of Nueva Ecija. Private respondent
Oscar C. Tinio is the Vice-Governor of said province while private respondents Loreto
P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and Napoleon
G. Interior are members of the Sangguniang Panlalawigan.
On September 17, 1996, private respondents filed with the Office of the President a
letter-complaint dated September 13, 1997 charging petitioner with grave misconduct
and abuse of authority. Private respondents alleged that in the morning of September
12, 1996, they were at the session hall of the provincial capitol for a scheduled session
of the Sangguniang Panlalawigan when petitioner belligerently barged into the Hall;
petitioner angrily kicked the door and chairs in the Hall and uttered threatening words at
them; close behind petitioner were several men with long and short firearms who
encircled the area. Private respondents claim that this incident was an offshoot of their
resistance to a pending legislative measure supported by petitioner that the province of
Nueva Ecija obtain a loan of P150 million from the Philippine National Bank; that
petitioner's acts were intended to harass them into approving this loan; that
fortunately, no session of the Sangguniang Panlalawigan was held that day for lack of
quorum and the proposed legislative measure was not considered; that private
respondents opposed the loan because the province of Nueva Ecija had an unliquidated
obligation of more than P70 million incurred without prior authorization from the
Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier
disclosed that the province could not afford to contract another obligation; that
petitioner's act of barging in and intimidating private respondents was a serious insult to
the integrity and independence of the Sangguniang Panlalawigan; and that the
presence of his private army posed grave danger to private respondents' lives and
safety. Private respondents prayed for the suspension or removal of petitioner; for an
emergency audit of the provincial treasury of Nueva Ecija; and for the review of the
proposed loan in light of the financial condition of the province, to wit:

"In this regard, we respectfully request for the following assistance from
your good office:

1. To immediately suspend Governor N. [sic] Joson considering the actual

dangers that we are facing now, and provide adequate police security detail
for the Sangguniang Panlalawigan of Nueva Ecija. Should the evidence
warrant after investigation, to order his removal from office.

2. To conduct an emergency audit of the provincial treasury of Nueva Ecija by

the auditors from the Commission on Audit Central Office with adequate
police security assistance. Should the evidence so warrant, to file necessary
charges against responsible and accountable officers.
3. To advise the Philippine National Bank to review the capability of the province of
Nueva Ecija to secure more loans and the feasibility of the same in the light of the
present financial condition of the province. Or if said loan will be contrary to sound
banking practice, recommend its disapproval."[1]

The letter-complaint was submitted with the joint affidavit of Elnora Escombien and
Jacqueline Jane Perez, two (2) employees of the Sangguniang Panlalawigan who
witnessed the incident. The letter was endorsed by Congressmen Eleuterio Violago and
Pacifico Fajardo of the Second and Third Districts of Nueva Ecija, former Congressman
Victorio Lorenzo of the Fourth District, and Mayor Placido Calma, President of the
Mayors' League of said province.[2]
The President acted on the complaint by writing on its margin the following:

"17 Sep 96

To: SILG info Exec. Sec. and Sec. of Justice:

1. Noted. There appears no justification for the use of force,

intimidation or armed followers in the situation of 12 Sep at the
Session Hall. 2. Take appropriate preemptive and investigative
actions. 3. BREAK NOT the PEACE.
FIDEL V. RAMOS
(Signed)."[3]
President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the
refusal of the members of the Sangguniang Panlalawigan to approve the proposed loan,
did not appear to justify "the use of force, intimidation or armed followers." He thus
instructed the then Secretary of the Interior and Local Governments (SILG) Robert
Barbers to "[t]ake appropriate preemptive and investigative actions," but to "[b]reak not
the peace."
The letter-complaint together with the President's marginal notes were sent to
Secretary Robert Z. Barbers on September 20, 1996. Acting upon the instructions of the
President, Secretary Barbers notified petitioner of the case against him[4] and attached
to the notice a copy of the complaint and its annexes. In the same notice, Secretary
Barbers directed petitioner "to submit [his] verified/sworn answer thereto, not a motion
to dismiss, together with such documentary evidence that [he] has in support thereof,
within fifteen (15) days from receipt."[5]
Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and
summoned petitioner and private respondents to a conference to settle the
controversy. The parties entered into an agreement whereby petitioner promised to
maintain peace and order in the province while private respondents promised to refrain
from filing cases that would adversely affect their peaceful co-existence.[6]
 The peace agreement was not respected by the parties and the private respondents
reiterated their letter-complaint. Petitioner was again ordered to file his answer to the
letter-complaint within fifteen days from receipt. Petitioner received a copy of this order
on November 13, 1996. On the same day, petitioner requested for an extension of thirty
(30) days to submit his answer because he was "trying to secure the services of legal
counsel experienced in administrative law practice."[7] The Department of the Interior
and Local Government (DILG), acting through Director Almario de los Santos, Officer-
In-Charge of the Legal Service, granted the motion, with the thirty-day extension to be
reckoned, however, from November 13, 1996, i.e., the day petitioner received the order
to answer.[8]
In a letter dated December 9, 1996, petitioner moved for another extension of thirty
(30) days to file his answer. He stated that he had already sent letters to various law
firms in Metro Manila but that he had not yet contracted their services; that the advent of
the Christmas season kept him busy with "numerous and inevitable official
engagements."[9] The DILG granted the request for extension "for the last time up to
January 13 only."[10]
On January 7, 1997, petitioner requested for another extension of thirty (30) days to
file his answer. According to him, the Christmas season kept him very busy and
preoccupied with his numerous official engagements; that the law firms he invited to
handle his case have favorably replied but that he needed time to confer with them
personally; and that during this period, he, with the help of his friends, was exploring the
possibility of an amicable settlement of the case.[11] The DILG granted petitioner's
request "for the last time" but gave him an extension of only ten (10) days from January
13, 1997 to January 23, 1997. The DILG also informed him that his "failure to submit
answer will be considered a waiver and that the plaintiff [shall] be allowed to present his
evidence ex-parte."[12]
Petitioner moved for reconsideration of the order. He reiterated his prayer for an
extension of thirty (30) days on the following grounds: (a) that he was still in the process
of choosing competent and experienced counsel; (b) that some law firms refused to
accept his case because it was perceived to be politically motivated; and (c) the
multifarious activities, appointments and official functions of his office hindered his
efforts to secure counsel of choice.[13]
Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting
Secretary of the DILG, issued an order declaring petitioner in default and to have
waived his right to present evidence. Private respondents were ordered to present their
evidence ex-parte. The order reads as follows:

"ORDER

It appearing that respondent failed to submit his answer to the

complaint despite the grant to him of three (3) extensions, such
unreasonable failure is deemed a waiver of his right to present
evidence in his behalf pursuant to Section 4, Rule 4 of Administrative
Order No. 23 dated December 17, 1992, as amended.
 Respondent is hereby declared in default, meanwhile, complainants
are directed to present their evidence ex-parte. However, considering
the prohibition on the conduct of administrative investigation due to the
forthcoming barangay elections, complainants will be notified on the
date after the barangay election for them to present their evidence.

SO ORDERED."[14]

Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar &
Asuncion, representing petitioner, filed with the DILG an "Entry of Appearance with
Motion for Time to File Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2, 1997. Through counsel,
he moved for reconsideration. On May 19, 1997, Undersecretary Sanchez reconsidered
the order of default in the interest of justice. He noted the appearance of petitioner's
counsel and gave petitioner "for the last time" fifteen (15) days from receipt to file his
answer.[15]
On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's
counsel, whose office is in Manila, should have received a copy of the May 19, 1997
order ten days after mailing on May 27, 1997. Since petitioner still failed to file his
answer, he was deemed to have waived his right to present evidence in his
behalf.Undersecretary Sanchez reinstated the order of default and directed private
respondents to present their evidence ex-parte on July 15, 1997.[16]
The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to
Dismiss." Petitioner alleged that the letter-complaint was not verified on the day it was
filed with the Office of the President; and that the DILG had no jurisdiction over the case
and no authority to require him to answer the complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of
the order of June 23, 1997 reinstating the order of default. Petitioner also prayed that
the hearing on the merits of the case be held in abeyance until after the "Motion to
Dismiss" shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary
Ruben Torres issued an order, by authority of the President, placing petitioner under
preventive suspension for sixty (60) days pending investigation of the charges against
him.[17]
Secretary Barbers directed the Philippine National Police to assist in the
implementation of the order of preventive suspension. In petitioner's stead, Secretary
Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such time as
petitioner's temporary legal incapacity shall have ceased to exist.[18]
Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of
Appeals challenging the order of preventive suspension and the order of default.[19]
Meanwhile, the proceedings before the DILG continued. On August 20, 1997,
Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss" and
"Urgent Ex-Parte Motion for Reconsideration." In the same order, he required the
parties to submit their position papers within an inextendible period of ten days from
receipt after which the case shall be deemed submitted for resolution, to wit:
"WHEREFORE, for lack of merit, both motions are denied. However, for this
office to have a better appreciation of the issues raised in the instant case, the
parties, through their respective counsels are hereby directed to submit their
position papers within a period of ten (10) days from receipt hereof, which
period is inextendible, after which the case is deemed submitted for
resolution."[20]
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of
Preventive Suspension." On September 10, 1997, petitioner followed this with a "Motion
to Lift Default Order and Admit Answer Ad Cautelam."[21] Attached to the motion was the
"Answer Ad Cautelam"[22] and sworn statements of his witnesses. On the other hand,
complainants (private respondents herein) manifested that they were submitting the
case for decision based on the records, the complaint and affidavits of their witnesses.[23]
In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12,
1996, while he was at his district office in the town of Munoz, he received a phone call
from Sangguniang Panlalawigan member Jose del Mundo. Del Mundo, who belonged to
petitioner's political party, informed him that Vice-Governor Tinio was enraged at the
members of the Sangguniang Panlalawigan who were in petitioner's party because they
refused to place on the agenda the ratification of the proposed P150 million loan of the
province. Petitioner repaired to the provincial capitol to advise his party-mates on their
problem and at the same time attend to his official functions. Upon arrival, he went to
the Session Hall and asked the members present where Vice-Governor Tinio
was. However, without waiting for their reply, he left the Hall and proceeded to his
office.
Petitioner claimed that there was nothing in his conduct that threatened the
members of the Sangguniang Panlalawigan or caused alarm to the employees. He said
that like Vice-Governor Tinio, he was always accompanied by his official security
escorts whenever he reported for work. He also alleged that the joint affidavit of Elnora
Escombien and Jacqueline Jane Perez was false. Escombien was purportedly not
inside the session hall during the incident but was at her desk at the office and could not
in any way have seen petitioner in the hall. To attest to the truth of his allegations,
petitioner submitted three (3) joint affidavits -- two (2) affidavits executed by six (6) and
ten (10) employees, respectively, of the provincial government, and a third by four
members of the Sangguniang Panlalawigan.[24]
On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of
the order of August 20, 1997 denying his motion to dismiss. The "Urgent Motion for
Reconsideration" was rejected by Undersecretary Sanchez on October 8,
1997. Undersecretary Sanchez, however, granted the "Motion to Lift Default Order and
to Admit Answer Ad Cautelam" and admitted the "Answer Ad Cautelam" as petitioner's
position paper pursuant to the order of August 20, 1997.[25]
 On October 15, 1997, petitioner filed a "Motion to Conduct Formal
Investigation." Petitioner prayed that a formal investigation of his case be conducted
pursuant to the provisions of the Local Government Code of 1991 and Rule 7 of
Administrative Order No. 23; and that this be held at the province of Nueva Ecija.[26] On
October 29, 1997, petitioner submitted a "Manifestation and Motion" before the DILG
reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's
petition.[27]
Hence this recourse.
The proceedings before the DILG continued however. In an order dated November
11, 1997, the DILG denied petitioner's "Motion to Conduct Formal Investigation"
declaring that the submission of position papers substantially complies with the
requirements of procedural due process in administrative proceedings.[28]
A few days after filing the petition before this Court, petitioner filed a "Motion for
Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary
Restraining Order and/or a Writ of Preliminary Injunction." Petitioner alleged that
subsequent to the institution of this petition, the Secretary of the Interior and Local
Governments rendered a resolution on the case finding him guilty of the offenses
charged.[29] His finding was based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the affidavits of complainants'
witnesses to be "more natural, reasonable and probable" than those of herein petitioner
Joson's.[30]
On January 8, 1998, the Executive Secretary, by authority of the President, adopted
the findings and recommendation of the DILG Secretary. He imposed on petitioner the
penalty of suspension from office for six (6) months without pay, to wit:
"WHEREFORE, as recommended by the Secretary of the Interior and Local
Government, respondent Nueva Ecija Governor Eduardo Nonato Joson is
hereby found guilty of the offenses charged and is meted the penalty of
suspension from office for a period of six (6) months without pay."[31]
On January 14, 1998, we issued a temporary restraining order enjoining the
implementation of the order of the Executive Secretary.
On January 19, 1998, private respondents submitted a Manifestation informing this
Court that the suspension of petitioner was implemented on January 9, 1998; that on
the same day, private respondent Oscar Tinio was installed as Acting Governor of the
province; and that in view of these events, the temporary restraining order had lost its
purpose and effectivity and was fait accompli.[32] We noted this Manifestation.
In his petition, petitioner alleges that:
"I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
RULES OF PROCEDURE AND EVIDENCE SHOULD NOT BE
STRICTLY APPLIED IN THE ADMINISTRATIVE DISCIPLINARY AND
 CLEARLY PUNITIVE PROCEEDINGS IN THE CASE AGAINST
PETITIONER GOVERNOR EDNO JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE
ALTER-EGO PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS
THE SECRETARY OF THE DILG WHO WAS EXERCISING THE
POWERS OF THE PRESIDENT WHICH ARE CLEARLY VESTED BY
LAW ONLY UPON HIM OR THE EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE
PETITIONER WAS PROPERLY DECLARED IN DEFAULT WHEN HE
FILED A MOTION TO DISMISS INSTEAD OF AN ANSWER, AS
DIRECTED BY THE DILG, BECAUSE A MOTION TO DISMISS
BASED ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE
[sic] PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT THE
IMPOSITION OF PREVENTIVE SUSPENSION AGAINST THE
PETITIONER WAS PROPER BECAUSE THERE WAS NO JOINDER
OF ISSUES YET UPON ITS IMPOSITION AND THERE WAS NO
EVIDENCE OF GUILT AGAINST PETITIONER."[33]
In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a
Temporary Restraining Order and/or a Writ of Preliminary Injunction," petitioner also
claims that:
"I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA
ISSUED PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F,"
AND "G" HEREOF) WERE ISSUED WITH UNDUE HASTE, IN
VIOLATION OF THE PERTINENT PROVISIONS OF THE 1991
LOCAL GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO.
23, AND IN COMPLETE DISREGARD OF PETITIONER'S
CONSTITUTIONAL RIGHT TO DUE PROCESS.
II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF
JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE PUBLIC
RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE
ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF
PRELIMINARY INJUNCTION HEREIN PRAYED FOR."[34]
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials are governed
by the Local Government Code of 1991, the Rules and Regulations Implementing the
Local Government Code of 1991, and Administrative Order No. 23 entitled "Prescribing
the Rules and Procedures on the Investigation of Administrative Disciplinary Cases
Against Elective Local Officials of Provinces, Highly Urbanized Cities, Independent
Component Cities, and Cities and Municipalities in Metropolitan Manila." [35] In all matters
not provided in A.O. No. 23, the Rules of Court and the Administrative Code of 1987
apply in a suppletory character.[36]
I

Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates
the grounds for which an elective local official may be disciplined, suspended or
removed from office. Section 60 reads:
"Sec. 60. Grounds for Disciplinary Actions. -- An elective local official
may be disciplined, suspended, or removed from office on any of the
following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or

dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offense

punishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except in

the case of members of the sangguniang panlalawigan, sangguniang
panlunsod, sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or the

status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds

enumerated above by order of the proper court."

When an elective local official commits an act that falls under the grounds for
disciplinary action, the administrative complaint against him must be verified and filed
with any of the following:
"Sec. 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 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 sangguniang panlalawigan whose decision may be appealed to the
Office of the President; and

(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."[37]

An administrative complaint against an erring elective official must be verified and

filed with the proper government office. A complaint against an elective provincial or city
official must be filed with the Office of the President. A complaint against an elective
municipal official must be filed with the Sangguniang Panlalawigan while that of a
barangay official must be filed before the Sangguniang Panlungsod or Sangguniang
Bayan.
In the instant case, petitioner Joson is an elective official of the province of Nueva
Ecija. The letter-complaint against him was therefore properly filed with the Office of the
President. According to petitioner, however, the letter-complaint failed to conform with
the formal requirements set by the Code. He alleges that the complaint was not verified
by private respondents and was not supported by the joint affidavit of the two witnesses
named therein; that private respondents later realized these defects and surreptitiously
inserted the verification and sworn statement while the complaint was still pending with
the Office of the President.[38] To prove his allegations, petitioner submitted: (a) the
sworn statement of private respondent Solita C. Santos attesting to the alleged fact that
after the letter-complaint was filed, Vice-Governor Tinio made her and the other
members of the Sangguniang Panlalawigan sign an additional page which he had later
notarized; and (b) the fact that the verification of the letter-complaint and the joint
affidavit of the witnesses do not indicate the document, page or book number of the
notarial register of the notary public before whom they were made.[39]
We find no merit in the contention of the petitioner. The absence of the document,
page or book number of the notarial register of the subscribing officer is insufficient to
prove petitioner's claim. The lack of these entries may constitute proof of neglect on the
part of the subscribing officer in complying with the requirements for notarization and
proper verification. They may give grounds for the revocation of his notarial commission.
[40]
 But they do not indubitably prove that the verification was inserted or intercalated
after the letter-complaint was filed with the Office of the President.
Nor is the fact of intercalation sufficiently established by the affidavit of Solita C.
Santos. Private respondent Santos was one of the signatories to the letter-complaint. In
her affidavit, she prayed that she be dropped as one of the complainants since she had
just joined the political party of petitioner Joson. She decided to reveal the intercalation
because she was disillusioned with the "dirty tactics" of Vice-Governor Tinio to grab
power from petitioner Joson.[41] Private respondent Santos cannot in any way be
considered an unbiased witness. Her motive and change of heart render her affidavit
suspect.
Assuming, nonetheless, that the letter-complaint was unverified when submitted to
the Office of the President, the defect was not fatal. The requirement of verification was
deemed waived by the President himself when he acted on the complaint.
Verification is a formal, not jurisdictional requisite.[42] Verification is mainly intended
to secure an assurance that the allegations therein made are done in good faith or are
true and correct and not mere speculation. [43] The lack of verification is a mere formal
defect.[44] The court may order the correction of the pleading, if not verified, or act on the
unverified pleading if the attending circumstances are such that a strict compliance with
the rule may be dispensed with in order that the ends of justice may be served.[45]
II

In his second assigned error, petitioner questions the jurisdiction and authority of
the DILG Secretary over the case. He contends that under the law, it is the Office of the
President that has jurisdiction over the letter-complaint and that the Court of Appeals
erred in applying the alter-ego principle because the power to discipline elective local
officials lies with the President, not with the DILG Secretary.
Jurisdiction over administrative disciplinary actions against elective local officials is
lodged in two authorities: the Disciplining Authority and the Investigating Authority. This
is explicit from A.O. No. 23, to wit:
"Sec. 2. Disciplining Authority. All administrative complaints, duly
verified, against elective local officials mentioned in the preceding
Section shall be acted upon by the President. The President, who may
act through the Executive Secretary, shall hereinafter be referred to as
the Disciplining Authority."
Sec. 3. Investigating Authority. The Secretary of the Interior and Local
Government is hereby designated as the Investigating Authority. He
may constitute an Investigating Committee in the Department of the
Interior and Local Government for the purpose.
The Disciplining Authority may, however, in the interest of the service,
constitute a Special Investigating Committee in lieu of the Secretary of
the Interior and Local Government."[46]
Pursuant to these provisions, the Disciplining Authority is the President of the
Philippines, whether acting by himself or through the Executive Secretary. The
Secretary of the Interior and Local Government is the Investigating Authority, who may
act by himself or constitute an Investigating Committee. The Secretary of the DILG,
however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the
Disciplining Authority may designate a Special Investigating Committee.
 The power of the President over administrative disciplinary cases against elective
local officials is derived from his power of general supervision over local
governments.Section 4, Article X of the 1987 Constitution provides:
"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."[47]
The power of supervision means "overseeing or the authority of an officer to see that
the subordinate officers perform their duties."[48] If the subordinate officers fail or neglect
to fulfill their duties, the official may take such action or step as prescribed by law to
make them perform their duties.[49] The President's power of general supervision means
no more than the power of ensuring that laws are faithfully executed, or that subordinate
officers act within the law.[50] Supervision is not incompatible with discipline.[51] And the
power to discipline and ensure that the laws be faithfully executed must be construed to
authorize the President to order an investigation of the act or conduct of local officials
when in his opinion the good of the public service so requires.[52] Thus:
"Independently of any statutory provision authorizing the President to conduct
an investigation of the nature involved in this proceeding, and in view of the
nature and character of the executive authority with which the President of the
Philippines is invested, the constitutional grant to him of power to exercise
general supervision over all local governments and to take care that the laws be
faithfully executed must be construed to authorize him to order an investigation
of the act or conduct of the petitioner herein. Supervision is not a meaningless
thing. It is an active power. It is certainly not without limitation, but it at least
implies authority to inquire into facts and conditions in order to render the power
real and effective. If supervision is to be conscientious and rational, and not
automatic and brutal, it must be founded upon a knowledge of actual facts and
conditions disclosed after careful study and investigation."[53]
The power to discipline evidently includes the power to investigate. As the Disciplining
Authority, the President has the power derived from the Constitution itself to investigate
complaints against local government officials. A. O. No. 23, however, delegates the
power to investigate to the DILG or a Special Investigating Committee, as may be
constituted by the Disciplining Authority. This is not undue delegation, contrary to
petitioner Joson's claim. The President remains the Disciplining Authority. What is
delegated is the power to investigate, not the power to discipline.[54]
Moreover, the power of the DILG to investigate administrative complaints is based
on the alter-ego principle or the doctrine of qualified political agency. Thus:
"Under this doctrine, which recognizes the establishment of a single executive,
all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and
agents of the Chief Executive, and, except in cases where the Chief Executive
is required by the Constitution or law to act in person or the exigencies of the
 situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through
the executive departments, and the acts of the Secretaries of such
departments, performed and promulgated in the regular course of business,
are, unless disapproved or reprobated by the Chief Executive presumptively the
acts of the Chief Executive."[55]
This doctrine is corollary to the control power of the President.[56] The power of
control is provided in the Constitution, thus:
"Sec. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed."[57]
Control is said to be the very heart of the power of the presidency.[58] As head of the
Executive Department, the President, however, may delegate some of his powers to the
Cabinet members except when he is required by the Constitution to act in person or the
exigencies of the situation demand that he acts personally.[59] The members of Cabinet
may act for and in behalf of the President in certain matters because the President
cannot be expected to exercise his control (and supervisory) powers personally all the
time. Each head of a department is, and must be, the President's alter ego in the
matters of that department where the President is required by law to exercise authority.
[60]

The procedure how the Disciplining and Investigating Authorities should exercise
their powers is distinctly set forth in the Local Government Code and A.O. No. 23.
Section 62 of the Code provides:
"Sec. 62. Notice of Hearing.-- (a) Within seven (7) days after the
administrative complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within fifteen (15) days from
receipt thereof, and commence investigation of the case within ten (10)
days after receipt of such answer of the respondent.
xxx."
Sections 1 and 3, Rule 5[61] of A.O. No. 23 provide:
"Sec. 1. Commencement. Within forty-eight (48) hours from receipt of
the answer, the Disciplining Authority shall refer the complaint and
answer, together with their attachments and other relevant papers, to
the Investigating Authority who shall commence the investigation of the
case within ten (10) days from receipt of the same.

"x x x

"Sec. 3. Evaluation. Within twenty (20) days from receipt of the

complaint and answer, the Investigating Authority shall determine
 whether there is a prima facie case to warrant the institution of formal
administrative proceedings."
When an administrative complaint is therefore filed, the Disciplining Authority shall issue
an order requiring the respondent to submit his verified answer within fifteen (15) days
from notice. Upon filing of the answer, the Disciplining Authority shall refer the case to
the Investigating Authority for investigation.
In the case at bar, petitioner claims that the DILG Secretary usurped the power of
the President when he required petitioner to answer the complaint. Undisputably, the
letter-complaint was filed with the Office of the President but it was the DILG Secretary
who ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not comply with the
provisions of A.O. No. 23. The Office should have first required petitioner to file his
answer.Thereafter, the complaint and the answer should have been referred to the
Investigating Authority for further proceedings. Be that as it may, this procedural lapse is
not fatal.The filing of the answer is necessary merely to enable the President to make a
preliminary assessment of the case.[62] The President found the complaint sufficient in
form and substance to warrant its further investigation. The judgment of the President
on the matter is entitled to respect in the absence of grave abuse of discretion.
III

In his third assigned error, petitioner also claims that the DILG erred in declaring
him in default for filing a motion to dismiss. He alleges that a motion to dismiss is not a
pleading prohibited by the law or the rules and therefore the DILG Secretary should
have considered it and given him time to file his answer.
It is true that a motion to dismiss is not a pleading prohibited under the Local
Government Code of 1991 nor in A.O. No. 23. Petitioner, however, was instructed not to
file a motion to dismiss in the order to file answer. Thrice, he requested for extension of
time to file his answer citing as reasons the search for competent counsel and the
demands of his official duties. And thrice, his requests were granted. Even the order of
default was reconsidered and petitioner was given additional time to file answer. After
all the requests and seven months later, he filed a motion to dismiss!
Petitioner should know that the formal investigation of the case is required by law to
be finished within one hundred twenty (120) days from the time of formal notice to the
respondent. The extensions petitioner requested consumed fifty-five (55) days of this
period.[63] Petitioner, in fact, filed his answer nine (9) months after the first notice. Indeed,
this was more than sufficient time for petitioner to comply with the order to file answer.
The speedy disposition of administrative complaints is required by public
service. The efficiency of officials under investigation is impaired when a case hangs
over their heads. Officials deserve to be cleared expeditiously if they are innocent, also
expeditiously if guilty, so that the business of government will not be prejudiced.[64]
IV
 In view of petitioner's inexcusable failure to file answer, the DILG did not err in
recommending to the Disciplining Authority his preventive suspension during the
investigation. Preventive suspension is authorized under Section 63 of the Local
Government Code, viz:

"Sec. 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;

x x x.

(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.

x x x."

In sum, preventive suspension may be imposed by the Disciplining Authority at any time
(a) after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the
gravity of the offense, there is great probability that the respondent, who continues to
hold office, could influence the witnesses or pose a threat to the safety and integrity of
the records and other evidence.
Executive Secretary Torres, on behalf of the President, imposed preventive
suspension on petitioner Joson after finding that:

"x x x

DILG Secretary Robert Z. Barbers, in a memorandum for the

President, dated 23 June 1997, recommends that respondent be
placed under preventive suspension considering that all the requisites
to justify the same are present. He stated therein that:
 'Preventive suspension may be imposed at any time after the
issues are joined, that is, after respondent has answered the
complaint, when the evidence of guilt is strong and, given the
gravity of the offense, there is a great possibility 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 (Sec. 3, Rule 6 of Administrative
Order No. 23).
The failure of respondent to file his answer despite several
opportunities given him is construed as a waiver of his right to
present evidence in his behalf (Sec. 4, Rule 4 of Administrative
Order No. 23). The requisite of joinder of issues is squarely met
with respondent's waiver of right to submit his answer. The act
of respondent in allegedly barging violently into the session hall
of the Sangguniang Panlalawigan in the company of armed
men constitutes grave misconduct.The allegations of
complainants are bolstered by the joint-affidavit of two (2)
employees of the Sangguniang Panlalawigan. Respondent who
is the chief executive of the province is in a position to influence
the witnesses. Further, the history of violent confrontational
politics in the province dictates that extreme precautionary
measures be taken.'
Upon scrutiny of the records and the facts and circumstances
attendant to this case, we concur with the findings of the Secretary of
the Interior and Local Government and find merit in the aforesaid
recommendation.
WHEREFORE, and as recommended by the Department of the Interior
and Local Government, respondent EDUARDO N. JOSON, Governor
of Nueva Ecija, is hereby placed under PREVENTIVE SUSPENSION
FOR A PERIOD OF SIXTY (60) DAYS, effective 11 July 1997, pending
investigation of the charges filed against him.

SO ORDERED."[65]

Executive Secretary Torres found that all the requisites for the imposition of preventive
suspension had been complied with. Petitioner's failure to file his answer despite
several opportunities given him was construed as a waiver of his right to file answer and
present evidence; and as a result of this waiver, the issues were deemed to have been
joined. The Executive Secretary also found that the evidence of petitioner Joson's guilt
was strong and that his continuance in office during the pendency of the case could
influence the witnesses and pose a threat to the safety and integrity of the evidence
against him.
V

We now come to the validity of the January 8, 1998 Resolution of the Executive
Secretary finding petitioner guilty as charged and imposing on him the penalty of
suspension from office for six (6) months from office without pay.
Petitioner claims that the suspension was made without formal investigation
pursuant to the provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To
Conduct Formal Investigation" three months before the issuance of the order of
suspension and this motion was denied by the DILG for the following reasons:
"On November 19, 1997, complainants, through counsel, filed a
Manifestation calling our attention to the Decision dated October 24,
1997 of the Court of Appeals, Fifth Division in CA-G.R. SP No. 44694,
entitled "Eduardo Nonato Joson versus Executive Secretary Ruben D.
Torres, et. al." In the aforestated decision, the Court of Appeals
resolved to sustain the authority of this Department to investigate this
administrative case and has likewise validated the order of default as
well as the order of preventive suspension of the respondent.
We offer no objection and concur with the assertion of respondent that
he has the right for the conduct of formal investigation. However,
before there shall be a formal investigation, joinder of issues must
already be present or respondent's answer has already been filed. In
the case at bar, the admission of respondent's answer after having
been declared in default was conditioned on the fact of submission of
position papers by the parties, after which, the case shall be deemed
submitted for resolution. Respondent, instead of submitting his position
paper filed his subject motion while complainants manifested to forego
the submission of position paper and submit the case for resolution on
the basis of the pleadings on hand.
Settled is the rule that in administrative proceedings, technical rules of
procedure and evidence are not strictly applied (Concerned Officials of
the Metropolitan Waterworks and Sewerage System v. Vasquez, 240
SCRA 502). The essence of due process is to be found in the
reasonable opportunity to be heard and to submit evidence one may
have in support of one's defense (Tajonera v. Lamaroza, 110 SCRA
438). To be heard does not only mean verbal arguments in court; one
may be heard also through pleadings. Where opportunity to be heard,
either through oral arguments or pleadings, is accorded, there is no
denial of procedural due process (Juanita Y. Say, et. al;. vs. IAC, G.R.
No. 73451). Thus, when respondent failed to submit his position paper
 as directed and insisted for the conduct of formal investigation, he was
not denied of his right of procedural process.
WHEREFORE, the Motion for the Conduct of Formal Investigation, for
lack of merit, is DENIED.
SO ORDERED."[66]
The denial of petitioner's Motion to Conduct Formal Investigation is
erroneous. Petitioner's right to a formal investigation is spelled out in the following
provisions of A.O. No. 23, viz:
"SEC. 3 Evaluation. Within twenty (20) days from receipt of the
complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of formal
administrative proceedings.
SEC. 4. Dismissal motu proprio. If the Investigating Authority
determines that there is no prima facie case to warrant the institution of
formal administrative proceedings, it shall, within the same period
prescribed under the preceding Section, submit its recommendation to
the Disciplining Authority for the motu propriodismissal of the case,
together with the recommended decision, resolution, and order.
SEC. 5. Preliminary conference. If the Investigating Authority
determines that there is prima facie case to warrant the institution of
formal administrative proceedings, it shall, within the same period
prescribed under the preceding Section, summon the parties to a
preliminary conference to consider the following:
a) whether the parties desire a formal investigation or are willing
to submit the case for resolution on the basis of the
evidence on record; and
b) If the parties desire a formal investigation, to consider the
simplification of issues, the possibility of obtaining
stipulation or admission of facts and of documents,
specifically affidavits and depositions, to avoid
unnecessary proof, the limitation of number of witnesses,
and such other matters as may be aid the prompt
disposition of the case.
The Investigating Authority shall encourage the parties and their
counsels to enter, at any stage of the proceedings, into amicable
settlement, compromise and arbitration, the terms and conditions of
which shall be subject to the approval of the Disciplining Authority.
 After the preliminary conference, the Investigating Authority shall issue
an order reciting the matters taken up thereon, including the facts
stipulated and the evidences marked, if any. Such order shall limit the
issues for hearing to those not disposed of by agreement or admission
of the parties, and shall schedule the formal investigation within ten
(10) days from its issuance, unless a later date is mutually agreed in
writing by the parties concerned."[67]
The records show that on August 27, 1997, petitioner submitted his Answer Ad
Cautelam where he disputed the truth of the allegations that he barged into the session
hall of the capitol and committed physical violence to harass the private respondents
who were opposed to any move for the province to contract a P150 million loan from
PNB. In his Order of October 8, 1997, Undersecretary Sanchez admitted petitioner's
Answer Ad Cautelam but treated it as a position paper. On October 15, 1997, petitioner
filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on
October 29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary
Barbers found petitioner guilty as charged on the basis of the parties' position
papers. On January 8, 1998, Executive Secretary Torres adopted Secretary Barbers'
findings and recommendations and imposed on petitioner the penalty of six (6) months
suspension without pay.
The rejection of petitioner's right to a formal investigation denied him procedural due
process. Section 5 of A. O. No. 23 provides that at the preliminary conference,
theInvestigating Authority shall summon the parties to consider whether they desire a
formal investigation. This provision does not give the Investigating Authority the
discretion to determine whether a formal investigation would be conducted. The records
show that petitioner filed a motion for formal investigation. As respondent, he is
accorded several rights under the law, to wit:
"Sec. 65. Rights of Respondent. -- The respondent shall be accorded
full opportunity to appear and defend himself in person or by counsel,
to confront and cross-examine the witnesses against him, and to
require the attendance of witnesses and the production of documentary
evidence in his favor through compulsory process
of subpoena or subpoena duces tecum."
An erring elective local official has rights akin to the constitutional rights of an accused.
[68]
 These rights are essentially part of procedural due process.[69] The local elective
official has the (1) right to appear and defend himself in person or by counsel; (2) the
right to confront and cross-examine the witnesses against him; and (3) the right to
compulsory attendance of witness and the production of documentary evidence. These
rights are reiterated in the Rules Implementing the Local Government Code[70] and in
A.O. No. 23.[71] Well to note, petitioner formally claimed his right to a formal investigation
after his Answer Ad Cautelam has been admitted by Undersecretary Sanchez.
Petitioner's right to a formal investigation was not satisfied when the complaint
against him was decided on the basis of position papers. There is nothing in the Local
Government Code and its Implementing Rules and Regulations nor in A.O. No. 23 that
provide that administrative cases against elective local officials can be decided on the
basis of position papers. A.O. No. 23 states that the Investigating Authority may require
the parties to submit their respective memoranda but this is only after formal
investigation and hearing.[72] A.O. No. 23 does not authorize the Investigating Authority
to dispense with a hearing especially in cases involving allegations of fact which are not
only in contrast but contradictory to each other. These contradictions are best settled by
allowing the examination and cross-examination of witnesses. Position papers are
often-times prepared with the assistance of lawyers and their artful preparation can
make the discovery of truth difficult. The jurisprudence cited by the DILG in its order
denying petitioner's motion for a formal investigation applies to appointive officials and
employees. Administrative disciplinary proceedings against elective government officials
are not exactly similar to those against appointive officials. In fact, the provisions that
apply to elective local officials are separate and distinct from appointive government
officers and employees. This can be gleaned from the Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the Code is devoted
to elective officials. It provides for their qualifications and election,[73] vacancies and
succession,[74] local legislation,[75] disciplinary actions,[76] and recall.[77] Appointive officers
and employees are covered in Title III of Book I of the Code entitled "Human Resources
and Development." All matters pertinent to human resources and development in local
government units are regulated by "the civil service law and such rules and regulations
and other issuances promulgated thereto, unless otherwise provided in the
Code."[78] The "investigation and adjudication of administrative complaints against
appointive local officials and employees as well as their suspension and removal" are
"in accordance with the civil service law and rules and other pertinent laws," the results
of which "shall be reported to the Civil Service Commission."[79]
It is the Administrative Code of 1987, specifically Book V on the Civil Service, that
primarily governs appointive officials and employees. Their qualifications are set forth in
the Omnibus Rules Implementing Book V of the said Code. The grounds for
administrative disciplinary action in Book V are much more in number and are specific
than those enumerated in the Local Government Code against elective local officials.
[80]
 The disciplining authority in such actions is the Civil Service Commission [81] although
the Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities are also given the power to investigate and decide disciplinary actions
against officers and employees under their jurisdiction. [82] When a complaint is filed and
the respondent answers, he must "indicate whether or not he elects a formal
investigation if his answer is not considered satisfactory."[83] If the officer or employee
elects a formal investigation, the direct evidence for the complainant and the respondent
"consist[s] of the sworn statement and documents submitted in support of the complaint
and answer, as the case may be, without prejudice to the presentation of additional
evidence deemed necessary x x x, upon which the cross-examination by respondent
and the complainant, respectively, is based."[84] The investigation is conducted without
adhering to the technical rules applicable in judicial proceedings."[85] Moreover, the
appointive official or employee may be removed or dismissed summarily if (1) the
charge is serious and the evidence of guilt is strong; (2) when the respondent is a
recidivist; and (3) when the respondent is notoriously undesirable.[86]
The provisions for administrative disciplinary actions against elective local officials
are markedly different from appointive officials.[87] The rules on the removal and
suspension of elective local officials are more stringent. The procedure of requiring
position papers in lieu of a hearing in administrative cases is expressly allowed with
respect to appointive officials but not to those elected. An elective official, elected by
popular vote, is directly responsible to the community that elected him. The official has a
definite term of office fixed by law which is relatively of short duration. Suspension and
removal from office definitely affects and shortens this term of office. When an elective
official is suspended or removed, the people are deprived of the services of the man
they had elected. Implicit in the right of suffrage is that the people are entitled to the
services of the elective official of their choice.[88] Suspension and removal are thus
imposed only after the elective official is accorded his rights and the evidence against
him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent
Executive Secretary is declared null and void and is set aside. No Cost.
SO ORDERED.

ROMEO R. SALALIMA, DANILO S. AZAA, JUAN VICTORIA, LORENZO

REYEG, ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR.,
RAMON FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR
RONTAS and NEMESIO BACLAO, petitioners, vs. HON.
TEOFISTO T. GUINGONA, JR., in his capacity as the Executive
Secretary, VICTOR R. SUMULONG, RENATO C. CORONA and
ANGEL V. SALDIVAR, in their capacity as Members of the Ad
Hoc Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO
ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM,
JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE,
TOBIAS BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR,
RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR.
SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in
their capacity as ACTING GOVERNOR, ACTING VICE-
GOVERNOR, and ACTING MEMBERS OF THE SANGGUNIANG
PANLALAWIGAN OF ALBAY, respectively, respondents.

DECISION
DAVIDE, JR., J.:
 Petitioners seek to annul and set aside Administrative Order No. 153,
signed on 7 October 1994 by the President and by public respondent
Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact
and recommendations of the Ad Hoc Committee and holding the petitioners
administratively liable for the following acts or omissions: (a) wanton disregard
of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave
abuse of authority under Section 60(e) of the Local Government Code of 1991
(R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority
under Section 60(c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d)
abuse of authority and negligence in O.P. Case No. 5450. The said order
meted out on each of the petitioners penalties of suspension of different
durations, to be served successively but not to go beyond their respective
unexpired terms in accordance with Section 66(b) of R.A. No. 7160.
Prefacing the petition with a claim that the challenged administrative order
is an oppressive and capricious exercise of executive power, the petitioners
submit that:
I.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY

TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE
MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL
MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND
APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS
THEIR SUCCESSORS IN OFFICE.

II.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY

TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR
FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF
P40,724,47 1.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY,
PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29,
1992.

III.
THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH
ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON
THE PROVISIONS OF THE LOCAL GOVERNMENT CODE:

A. WHAT WERE NOT COMPLAINED OF;

B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND
C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY
COVERED BY PRESCRIPTION.
IV.

THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT

PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO
REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON
AUDIT SITTING EN BANC.

We resolved to give due course to this petition and to decide it on the

basis of the pleadings thus far submitted, after due consideration of the
satisfactory explanation of the petitioners that his case has not been mooted
by the expiration of their term of office on 30 June 1995 and the comment of
the Office of the Solicitor General that this case be resolved on the merits. In
seeking a resolution of this case on the merits, Office of the Solicitor General
invites the attention of the Court to the following:
(a) While the periods of suspension have been served by petitioners and that some of
them have even been elected to other government positions, there is the primary
issue of whether the suspensions were valid and grounded on sufficient cause.
(b) If the suspensions are found to be valid, petitioners are not entitled to reimbursement
of salaries during their suspension periods.
(c) If upheld, Administrative Order No. 15 would be used as a strong ground in filing
cases against petitioners for violations of the Anti-Graft and Corrupt Practices Act.
(d) Corollary [sic] to these issues is the issue of the interpretation and application of the
[R]eal Property Tax Code and the Local Government Code under the circumstances
of this case.
(e) The resolution of these issues would finally put to rest whether respondents acted
with grave abuse of discretion amounting to lack of jurisdiction for having suspended
petitioners on the basis of their findings in the four (4) administrative cases filed
against the petitioners.

The factual antecedents are not complicated.

Sometime in 1993, several administrative complaints against the
petitioners, who were elective officials of the Province of Albay, were filed with
the Office of the President and later docketed as O.P. Cases Nos. 5450,
5469, 5470, and 5471. Acting thereon, the President issued Administrative
Order No. 94 creating an Ad Hoc Committee to investigate the charges and to
thereafter submit its findings and recommendations.
The Ad Hoc Committee was composed of Undersecretary Victor R.
Sumulong of the Department of the Interior and Local Government (DILG),
Assistant Executive Secretary Renato C. Corona, and Presidential Assistant
Angel V. Saldivar.
On 26 August 1994, after conducting hearings, the Ad Hoc Committee
submitted its report to the Office of the President.
On 7 October 1994, the President promulgated Administrative Order No.
153 quoting with approval the following pertinent findings and
recommendations of the Committee; thus:
The finding of the Ad-Hoc Committee in O.P. Case Nos. 5470, 5469,
5471 and 5450 are as follows:

I. O.P. Case No. 5470

This refers to the administrative complaint filed by Tiwi Mayor Naomi

Corral against Albay Governor Romeo Salalima, Vice- Governor Danilo Azaa,
and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo
Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, [S]r., Jesus Marcellana,
Ramon Fernandez, Jr., Masikap-Fontanilla, and Wilbor Rontas.
Docketed as O.P. Case No. 5470, the complaint charges the respondents
for malversation and consistent & habitual violation of pars. (c) and (d) of
Section 60 of Republic Act (RA) No. 7160, otherwise known as the Local
Government Code.
The antecedent facts are as follows:
On 4 June 1990, the Supreme Court in the case entitled National Power
Corporation (NPC) v. The Province of Albay, et al., G.R. No. 87479 rendered
judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real
estate taxes on its properties in Albay covering the period 11 June 1984 to 10
March 1987.
Citing the fact that its tax exemption privileges had been revoked, the
Supreme Court held that NPCs real properties, consisting mainly of
geothermal plants in Tiwi and substation facilities in Daraga, are subject to
real estate tax in accordance with Presidential Decree (PD) No. 464, as
amended, otherwise known as the Real Property Tax Decree.
Earlier, said properties were sold at an auction sale conducted by the
Province of Albay (the Province) to satisfy NPCs tax liabilities. Being the sole
bidder at the auction, the Province acquired ownership over said properties.
On 29 July 1992, the NPC through then President Pablo Malixi and the
Province represented by respondent Salalima, entered into a Memorandum of
Agreement (MOA) [Exhs. 7 to 7-A] whereby the former agreed to settle its tax
liabilities, then estimated at P214,845,104.76.
Under the MOA, the parties agreed that:
- the actual amount collectible from NPC will have to be recomputed/revalidated;
- NPC shall make an initial payment of P17,763,000.00 upon signing of the agreement;
- the balance of the recomputed/revalidated amount (less the aforesaid initial
payment), shall be paid in twenty-four (24) equal monthly installments to commence
in September 1992; and
- ownership over the auctioned properties shall revert to NPC upon satisfaction of the
tax liabilities.

On 3 August 1992, Mayor Corral formally requested the Province through

respondent Salalima, to remit the rightful tax shares of Tiwi and certain
barangays of Tiwi where NPCs properties are located (concerned barangays)
relative to the payments made by NPC (Exh. B).
On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed
Resolution No. 12-92 (Exhs. G to G-1) requesting the Albay Sangguniang
Panlalawigan to hold a joint session with the former together with Mayor
Corral and the Sangguniang Pambarangays of the concerned barangays, for
the purpose of discussing the distribution or application of the NPC payments.
On 10 August 1992, respondent Salalima replied that the request cannot
be granted as the initial payment amounting to P17,763,000.00 was only an
earnest money and that the total amount to be collected from NPC was still
being validated (Exh. I).
Not satisfied with respondent Salalimas response, Mayor Corral
complained to NPC about the Provinces failure to remit Tiwis and the
concerned barangays shares in the payments made by NPC (Exh. 50-C).
On 14 August 1992, President Malixi informed respondent Salalima that
the representatives of both NPC and the Province have reconciled their
accounts and determined that the amount due from NPC was down to
P207,375,774.52 (Exh. 20).
 Due to the brewing misunderstanding between Tiwi and the concerned
barangays on the one hand, and the Province on the other, and so as not to
be caught in the middle of the controversy, NPC requested a clarification from
the Office of the President as to the scope and extent of the shares of local
government units in real estate tax collections (Exh. 6 to 6-A).
Meantime, the Albay Sangguniang Panlalawigan passed Resolution No.
178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5
November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,43 1.58 or
a total of P27,442,364.15 from the general fund to satisfy prior years
obligations and to implement certain projects of the Province. These
resolutions were approved by respondent Salalima on 22 October 1992 and 6
November 1992, respectively.
On 3 December 1992, the Office of the President through Chief
Presidential Legal Counsel Antonio Carpio opined that the MOA entered into
by NPC and the Province merely recognized and established NPCs tax
liability. He further clarified that the sharing scheme and those entitled to the
payments to be made by NPC under the MOA should be that provided under
the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit
such share directly to Tiwi. The pertinent portion of Chief Presidential Legal
Counsel Carpios letter dated 3 December 1992 (Exhs. H to H-1) addressed to
President Malixi reads:
xxx xxx xxx

The Memorandum of Agreement entered into by the Province of Albay and NPC
merely enunciates the tax liability of NPC. The Memorandum of Agreement does not
provide for the manner of payment of NPCs liability. Thus, the manner of payment as
provided for by law shall govern. In any event, the Memorandum of Agreement
cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi.

The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only
established the liability of NPC for real property taxes but does not specifically
provide that said back taxes be paid exclusively to Albay province.

Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi
the real property taxes accruing to the same.

Please be guided accordingly.

Very truly yours,

 (Sgd.) ANTONIO T. CARPIO
Chief Presidential Legal Counsel
Because of this opinion, President Malixi, through a letter dated 9
December 1992 (Exhs. Ito I-1), informed Mayor Corral and respondent
Salalima that starting with the January 1993 installment, NPC will directly pay
Tiwi its share in the payments under the MOA. He also invited the parties to a
clarificatory meeting on 17 December 1992 at his Quezon City office to
discuss the matter in detail.
Only Mayor Corral attended the 17 December 1992 meeting with
President Malixi as respondent Salalima was indisposed. President Malixi
then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments
already made by NPC under the MOA and the computation and the
distribution of shares.
As of 9 December 1992, payments made by NPC to the Province reached
P40,724,471.74, broken down as follows:

Payment Dates Amount

July 29, 1992 P17,763,000.00

Sept. 3, 1992 4,660,255.80
Oct. 5, 1992 6,820,480.12
Nov. 5, 1992 5,740,367.96
Dec. 9, 1992 5,740,367.66

Total P40,724,471.74

On 19 December 1992, in an apparent reaction to NPCs decision to

directly remit to Tiwi its share in the payments made and still to be made
pursuant to the MOA, the Albay Sangguniang Panlalawigan passed
Ordinance No. 09-92 (Exhs. K to K-1), which, among others:
- authorized the Provincial Treasurer upon the direction of the Provincial Governor to
sell the real properties (acquired by the Province at the auction sale) at a public
auction, and to cause the immediate transfer thereof to the winning bidder; and
- declared as forfeited in favor of the Province, all the payments already made by NPC
under the MOA.

Realizing from the actuations of the respondents that Tiwis share in the
P40,724,47 1.74 payments already made by NPC will not be forthcoming,
Mayor Corral filed the present complaint with the Office of the President on 25
January 1993.
 In determining whether the respondents are guilty of the charges against
them, the threshold issue of whether the payments to be made by NPC under
the MOA should accrue solely and exclusively in favor of the Province, must
first be resolved.
Sections 38, 39, 41, 86 and 87 of P.D. No. 464, as amended, prescribe
the authority of local government units to levy real property tax as well as the
sharing scheme among local government units including the national
government with respect thereto. Said provisions; read:

SEC. 38. Incidence of Real Property Tax. - There shall be levied, assessed, and
collected in all provinces, cities and municipalities an annual ad valorem tax or real
property, such as land, buildings, machinery and other improvements affixed or
attached to real property not hereinafter specifically exempted.

SEC. 39. Rates of Levy. - The provincial, city or municipal board or council shall fix
a uniform rate of real property tax applicable to their respective localities as follows:

(1) In the case of a province, the tax shall be fixed by ordinance of the provincial board
at the rate of not less than one-fourth of one percent but not more than one-half of
one percent of the assessed value of real property;
(2) In the case of a city, the tax shall be fixed by ordinance of the municipal board or
city council at the rate of not less than one-half of one percent but not more than two
percent of the assessed value of real property; and
(3) In the case of a municipality, the tax shall be fixed by ordinance of the municipal
council subject to the approval of the provincial board at the rate of not less than
one-fourth of one percent but not more than one-half of one percent of the assessed
value of real property.

SEC. 41. An additional one percent tax on real property for the Special Education
Fund. - There is hereby imposed an annual tax of one percent on real property to
accrue to the Special Education Fund created under Republic Act No. 5447, which
shall be in addition to the basic real property tax which local governments are
authorized to levy, assess and collect under this Code; Provided, That real property
granted exemption under Section 40 of this code shall also be exempt from the
imposition accruing to the Special Education Fund. (as amended by P.D. No. 1913)

SEC. 86. Distribution of proceeds. - (a) The proceeds of the real property tax, except
as otherwise provided in this Code, shall accrue to the province, city or municipality
where the property subject to the tax is situated and shall be applied by the respective
local government unit for its own use and benefit.
(b) Barrio shares on real property tax collections. -The annual shares of the barrios in
real property tax collections shall be as follows:

(1) Five percent of the real property tax collections of the province and another five
percent of the collections of the municipality shall accrue in the barrio where the
property subject to the tax is situated.
(2) In the case of the city, ten percent of the collections of the tax shall likewise accrue
to the barrio where the property is situated.

xxx xxx xxx

SEC. 87. Application of proceeds. - (a) The proceeds of the real property tax
pertaining to the city and to the municipality shall accrue entirely to their respective
general funds. In the case of the province, one-fourth thereof shall accrue to its road
and bridge fund and remaining three-fourths of its general fund.

(b) The entire proceeds of the additional one percent real property tax levied for the
Special Education Fund created under RA. No. 5447 collected in the province or city
on real property situated in their respective territorial jurisdictions shall be distributed
as follows:

(1) Collections in the provinces: Fifty-five percent shall accrue to the municipality where
the property subject to the tax is situated; twenty-five percent shall accrue to the
province; and twenty percent shall be remitted to the Treasurer of the
Philippines. (as amended by PD. No. 1969)

xxx xxx xxx

(c) The proceeds of all delinquent taxes and penalties, as well as the income realized
from the use, lease or other disposition of real property acquired by the province or
city at a public auction in accordance with the provisions of this Code, and the
proceeds of the sale of the delinquent real property or of the redemption thereof, shall
accrue to the province, city or municipality in the same manner and proportion as if
the tax or taxes had been paid in regular course.

x x x x x x x x x (Italics supplied)

The foregoing provisions clearly show that local government units may
levy and collect real property tax ranging from a low of one-fourth of one
percent (0.25%) to a high of two percent (2.0%) of the assessed value of real
property depending on the local government unit levying the same. It is
likewise clear that a province, a municipality and a city may each separately
levy said tax on real property located within their respective jurisdictions but
not exceeding the rates prescribed under Sec. 39 of P.D. No. 464.
 And apart from said basic tax, the law authorizes the collection of an
additional tax equivalent to one percent (1.0%) of the assessed value of the
real property to accrue to the Special Education Fund (SEF).
In accordance with the authority conferred upon them by P.D. No. 464, the
following tax resolutions or ordinances were passed:

By the Province

Resolution No. 30, series of 1978, of the Provincial Board of Albay, enacting
Provincial Tax Ordinance No.4 whose Section 1, provides:

There shall be levied, assessed and collected an annual ad valorem tax on real
properties including improvements thereon equivalent to one-half of one percent of
the assessed value of real property.

By the Municipality of Tiwi

Ordinance No. 25. series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose
Section 2 provides:

That the tax rate of real property shall be one-half of one percent of the assessed value
of real property.

By the Municipality of Daraga

Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay,
whose Section 3 provides:

Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2
of 1%) of the assessed value of real property. (see Exhs. 50-G; Italics supplied)

Applying said rates of levy, the real property taxes collectible from the
NPC are:
1. A basic tax of 1%, levied by the Province (0. 5%) and Tiwi (0.5%) on the one hand;
and the Province (0.5%) and Daraga (0.5%) on the other; and
2. The additional 1% tax pertaining to the SEF.

or a total of 2.0% on the assessed value of NPCs real properties.

On the other hand, sharing on said taxes, shall be as follows:

1. On the basic tax:

 Province 47.5%
Municipality 47.5%
Barangay 5.0%

Total 100.0%

2. On the additional tax pertaining to the SEF:

Province 25.0%
Municipality 55.0%
National Government 20.0

Total 100.0%

In real terms, the P40,724,471.74 in payments earlier made by NPC

should be shared by the Province, Tiwi and Daraga, the concerned
barangays; and the national government, as follows:

Province Municipalities Barangay Natl. Govt.

Basic Tax

P9,672,062.04 9,672,062.04 1,018,111.79 none

SEF

4,072,447.18 10,181,117.93 none 6,108,670.76

Total

P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76

This shows that the Province is entitled only to P 13,744,509.21 of the

P40,724,47 1.74 aggregate payments by NPC. On the other hand, the
balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga,
the concerned barangays and the national government.
The Province maintains, however, that considering that it acquired
ownership over the properties of NPC subject matter of the auction, all the
payments to be made by NPC under the MOA should accrue exclusively to
the Province.
This is untenable. The law clearly provides that the proceeds of all the
delinquent taxes and penalties as well as the income realized from the x x x
disposition of real property acquired by the province or city at a public auction
x x x, and the sale of delinquent property or the redemption thereof shall
accrue to the province, city or municipality in the same manner and proportion
as if the tax or taxes have been paid in the regular course (Sec. 87(c) supra).
It is immaterial that the Province was the highest bidder and eventually
became the owner of the properties sold at the auction sale. What is essential
is that the proceeds of the re-sale of said properties acquired by the Province,
be distributed in the same manner and proportion among the rightful
beneficiaries thereof as provided by law.
This was the import and essence of Chief Presidential Legal Counsel
Carpios opinion when he stated that the sharing scheme provided by law
cannot be amended by a mere agreement between the taxpayer, in this case
NPC, and the collecting authority, in this instance the Province of Albay.
Likewise, it is axiomatic that while contracting parties may establish
stipulations, clauses, terms and conditions as they may deem convenient,
they may not do so if these are contrary to law, morals, good customs, public
order or public policy (Art. 1306, New Civil Code).
Also relevant to the discussion are the following provisions of the Local
Government Code of 1991:

Sec. 307. Remittance of Government Monies to the Local Treasury. - Officers of

Local government authorized to receive and collect monies arising from taxes,
revenues, or receipts of any kind shall remit the full amount received and collected to
the treasury of such local government unit which shall be credited to the particular
account or accounts to which the monies in question properly belong.

SEC. 308. Local Funds. - Every local government unit shall maintain a General Fund
which shall be used to account for such monies and resources as may be received by
and disbursed from the local treasury. The General Fund shall consist of monies and
resources of the local government which are available for the payment of
expenditures, obligations or purposes not specifically declared by law as accruing
and chargeable to, or payable from any other fund.

SEC. 309. Special Funds. - There shall be maintained in every provincial, city, or
municipal treasury the following special funds:

(a) Special Education Fund (SEF) shall consist of the respective shares of provinces,
cities, municipalities and barangays in the proceeds of the additional tax on real
property to be appropriated for purposes prescribed in Section 272 of this Code;
and
 (b) Trust Funds shall consist of private and public monies which have officially come
into the possession of the local government or of a local government official as
trustee, agent or administrator, or which have been received as a guaranty for the
fulfillment of some obligation. A trust fund shall only be used for the specific
purpose for which it was created or for which it came into the possession of the
local government unit. (Italics supplied)

These provisions are restatements of Sec. 3(4) and (5) of P.D. No. 1445
and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No.
292, otherwise known as the Administrative Code of 1987.
It is unmistakable from the foregoing provisions that the shares of Tiwi,
Daraga, the concerned barangays and the national government in the
payments made by NPC under the MOA, should be, as they are in fact, trust
funds. As such, the Province should have, upon receipt of said payments,
segregated and lodged in special accounts, the respective shares of Tiwi,
Daraga, the concerned barangays and the national government for eventual
remittance to said beneficiaries. Said shares cannot be lodged in, nor remain
part of, the Provinces general fund. Moreover, the Province cannot utilize said
amounts for its own benefit or account (see also Sec. 86, PD. No. 464, as
amended).
Therefore, the balance of P26,979,962.52 representing the collective
shares of Tiwi and Daraga, the concerned barangays and the national
government, cannot be appropriated nor disbursed by the Province for the
payment of its own expenditures or contractual obligations.
However, in total disregard of the law, the Province treated the P40,724,47
1.74 NPC payments as surplus adjustment (Account 7-92-4 19) and lodged
the same in its general fund. No trust liability accounts were created in favor of
the rightful beneficiaries thereof as required by law.
Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office
(SAO) of the Commission on Audit (COA) further support our findings, thus -
xxx xxx xxx

Part II. Findings and Observations

The audit findings, which are discussed in detail in the attached report, are
summarized below:

1. The remittances of the NPC of the P40,724,471 .74 from July to December 1992
representing partial payments of real tax delinquencies from June 22, 1984 to March
10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the
concerned barangays and the National Government in violation of P.D. 464. The
Memorandum of Agreement entered into between the Province of Albay and
 Napocor cannot amend the provisions of P.D. No. 464 which specifies the sharing
scheme of the real property tax among the province, city or municipality where the
property subject to tax is situated and the National Government.

xxx xxx xxx
2. The collection of P40,724,471.74 was fully treated as surplus adjustment (Account
7-92-4 19) being prior years income, without creating a trust liability for the
municipality and barangays concerned and national government, As of December
31, 1992, the balance of the account was only P25,668,653. 12 thus, stressing that
P15,255,818.62 was spent. x x x Under the General Fund, cash available was only
P4,92 1,353.44 leaving practically no cash to answer for the shares of the
Municipalities of Tiwi and Daraga and their baran gays where the properties are
located. (pp. 4 and 16; (Italics supplied)

xxx xxx xxx
As pointed out earlier, the Province was entitled only to P13,744,509.21 of
the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate
and disburse P13,744,509.21. Any disbursements exceeding this amount
would therefore be illegal.
This Committee particularly notes the factual finding of COA that as of 31
December 1992, the actual cash balance of the Provinces general fund was
only P4,92 1,353.44. This means that of the P40,724,471.74 actually paid by
the NPC and lodged in the Provinces general fund, P35,803,118.30 was
disbursed or spent by the Province.This exceeds the P13,744,509.21 share of
the Province by P22,058,609.09.
The foregoing may be illustrated as follows:

NPC Payments received by

the Province P40,724,471.74

Less Actual Cash Balance

(general fund)
as of 12-31-92 - 4,921,353.44
P35,803,118.30

Less Share of the Province 13,744,509.21

Amount Illegally Disbursed

by the Province P22,058,609.09

We have already shown that Ordinance No. 09-92 (Exhs. K to K-1)

declaring as forfeited in favor of the Province the entire amount of
P40,724,471.74 paid by NPC to be patently illegal as it unlawfully deprives
Tiwi and Daraga, the barangays concerned, and the national government of
their rightful shares in said payments. Being illegal, said ordinance may not be
used or relied upon by the respondents to justify the disbursements of funds in
excess of their share.
Neither may Resolution Nos. 178-92 and 204-92 be used to justify the
disbursements considering that the appropriations made thereunder totalling
P27,442,364.51 are to be funded by the P40,724,471.74 surplus adjustment
that includes the trust funds not belonging to the Province. Even assuming
that Resolution No. 178-92 authorizing the expenditure of P9,778,932.57 were
to be taken from the Provinces share amounting to P13,744,509.21, the rest
of the disbursements still have no legal basis. Clearly, this is violative of the
fundamental rule that (n)o money shall be paid out of the local treasury except
in pursuance of an appropriation ordinance or law (par. [a], Sec. 305, Republic
Act No. 7160).
Respondents raise the common defense that the findings contained in
SAO Report No. 93-11 are not yet final as they have filed an appeal
therefrom.
It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J)
raised by the respondents to COA merely involve questions of law, i.e., as to
whether the Province alone should be entitled to the payments made by NPC
under the MOA, and whether the shares of Tiwi and Daraga, the concerned
barangays, and the national government, should be held in trust for said
beneficiaries.
Considering that the factual findings under SAO Report 93-11 are not
disputed, this Committee has treated said factual findings as final or, at the
very least, as corroborative evidence.
Respondents contention that COAs factual findings, contained in SAO
Report No. 93-11 cannot be considered in this investigation is untenable. For
no administrative or criminal investigation can proceed, if a respondent is
allowed to argue that a particular COA finding is still the subject of an appeal
and move that the resolution of such administrative or criminal case be held in
abeyance. This will inevitably cause unnecessary delays in the investigation of
administrative and criminal cases since an appeal from a COA finding may be
brought all the way up to the Supreme Court.
Besides, the matters raised by the respondents on appeal involve only
conclusions/interpretation of law. Surely, investigative bodies, such as COA,
the Ombudsman and even this Committee, are empowered to make their own
conclusions of law based on a given set of facts.
 Finally, sufficient evidence has been adduced in this case apart from the
factual findings contained in SAO Report 93-11 to enable this Committee to
evaluate the merits of the instant complaint.
We also reject respondent Azaas defense that since he did not participate
in the deliberation and passage of Resolution No. 09-92, merely signing the
same as presiding officer of the Sangguniang Panlalawigan, and only
certifying that the same had been passed, he did not incur any administrative
liability.
The fact remains that as presiding officer of the Sangguniang
Panlalawigan and being the second highest official of the Province,
respondent Azaa is jointly responsible with other provincial officials in the
administration of fiscal and financial transactions of the Province. As presiding
officer of the Sangguniang Panlalawigan, respondent Azaa has a duty to see
to it that resolutions or ordinances passed are within the bounds of the
law. He cannot merely preside over the sessions of the Sangguniang
Panlalawigan unmindful of the legality and propriety of resolutions or
ordinances being proposed or deliberated upon by his colleagues.
This collective responsibility is provided under Secs. 304 and 305 of
Republic Act. No. 7160, thus

SEC. 304. Scope. - This Title shall govern the conduct and management of financial
affairs, transactions and operations of provinces, cities, municipalities, and
barangays.

SEC. 305. Fundamental Principles. - The financial affairs, transactions, and operations
of local government units shall be governed by the following fundamental principles:

xxx xxx xxx
(1) Fiscal responsibility shall be shared by all those exercising authority over the
financial affairs, transactions, and operations of local government units; and
x x x x x x x x x (Italics supplied.)

It cannot be denied that the Sangguniang Panlalawigan has control over

the Provinces purse as it may approve or not resolutions or ordinances
generating revenue or imposing taxes as well as appropriating and authorizing
the disbursement of funds to meet operational requirements or for the
prosecution of projects.
Being entrusted with such responsibility, the provincial governor, vice-
governor and the members of the Sangguniang Panlalawigan, must always be
guided by the so-called fundamental principles enunciated under the Local
Government Code, i.e., No money shall be paid out of the local treasury
except in pursuance of an appropriations ordinance or law; local revenue is
generated only from sources authorized by law or ordinance and collection
thereof shall at all times be acknowledged properly; all monies officially
received by a local government officer in any capacity or on any occasion
shall be accounted for as local funds, unless otherwise provided by law; and
trust funds in the local treasury shall not be paid out except in fulfillment of the
purposes for which the trust was created or the funds received (Sec. 305, R.A.
7160).
All the respondents could not claim ignorance of the law especially with
respect to the provisions of P.D. No. 464 that lay down the sharing scheme
among local government units concerned and the national government, for
both the basic real property tax and additional tax pertaining to the Special
Education Fund. Nor can they claim that the Province could validly forfeit the
P40,724,471.74 paid by NPC considering that the Province is only entitled to
a portion thereof and that the balance was merely being held in trust for the
other beneficiaries.
As a public officer, respondent Azaa (and the other respondents as well)
has a duty to protect the interests not only of the Province but also of the
municipalities of Tiwi and Daraga and even the national government. When
the passage of an illegal or unlawful ordinance by the Sangguniang
Panlalawigan is imminent, the presiding officer has a duty to act accordingly,
but actively opposing the same by temporarily relinquishing his chair and
participating in the deliberations. If his colleagues insist on its passage, he
should make known his opposition thereto by placing the same on record. No
evidence of any sort was shown in this regard by respondent Azaa.
Clearly, all the respondents have, whether by act or omission, denied the
other beneficiaries of their rightful shares in the tax delinquency payments
made by the NPC and caused the illegal forfeiture, appropriation and
disbursement of funds not belonging to the Province, through the passage
and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-
92.
The foregoing factual setting shows a wanton disregard of law on the part
of the respondents tantamount to abuse of authority. Moreover, the illegal
disbursements made can qualify as technical malversation.
This Committee, thus, finds all the respondents guilty of abuse of
authority, and accordingly, recommends the imposition of the following
penalties of suspension without pay:
a. Respondent Salalima five (5) months; and

b. All the other four (4) months each.

respondents

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay Governor

Romeo Salalima, Vice-Governor Danilo Azafla, Albay Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana,
Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla,
Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal
services entered into between the Province of Albay, on the one hand, and
Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and
the disbursement of public fund in payment thereof. The complaint was
docketed as OP Case No. 5469.
The antecedent facts are as follows.
Because of the refusal by the National Power Corporation (NPC) to pay
real property taxes assessed by the Province of Albay (the Province) covering
the period from 11 June 1984 up to 10 March 1987 amounting to P2
14,845,184.76, the Province sold at public auction the properties of NPC
consisting of geothermal power plants, buildings, machinery and other
improvements located at Tiwi and Daraga, Albay. The Province was the sole
and winning bidder at the auction sale.
As NPC failed to redeem its properties sold at the auction, the Province
petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of
possession over the same.
Sometime in 1989, NPC filed a petition with the Supreme Court, which
was docketed as G.R. No. 87479, questioning the validity of the auction sale
conducted by the Province. NPC claims, inter alia, that its properties are not
subject to real property tax.
On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal
officer of the Province, filed its comment on the NPC petition with the
Supreme Court.
On 2 June 1989, the Albay Sangguniang Panlalawigan adopted
Resolution No. 129-89 (Exhs. B to B-I) authorizing respondent Governor to
engage the services of a Manila-based law firm to handle the case against
NPC.
On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with
the Supreme Court as collaborating counsel for the Province in G.R. No.
87479. The entry of appearance of Atty. Cornago bore the conformity of
respondent Governor.
On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes &
Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing
him that Atty. Jesus R. Cornago, as collaborating counsel for the Province,
has filed a memorandum with the Supreme Court, suggesting that a retainer
agreement be signed between the Province, on the one hand, and Atty.
Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth
the conditions of the retainer agreement, thus:

As collaborating counsels for the respondents in the aforementioned case, our law
firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of
FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending
in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to
eighteen percent (18%) of the value of the property subject matter of the case which is
P214 Million, payable to us in the event that we obtain a favorable judgment for you
from the Supreme Court in the case. Xerox expenses for copies of motions,
memorandum and other matters to be filed with the Supreme Court in the case,
together with xerox copies of documentary evidence, as well as mailing expenses, will
be for your account also.

On 8 January 1990, the Albay Sangguniang Panlalawigan passed

Resolution No. 01-90 (Exhs. C to C- 1) authorizing respondent Governor to
sign and confirm the retainer contract with the Cortes & Reyna Law Firm.
Respondent Salalima signed the retainer agreement.
On 4 June 1990, the Supreme Court issued a decision dismissing the
NPC petition and upholding the validity of the auction sale conducted by the
Province to answer for NPCs tax liabilities.
Subsequently, the following payments amounting to P7,380,410.31 (Exhs.
E to N-l) were made by the Province to Atty. Antonio Jose Cortes and Atty.
Jesus R. Cornago:

Particulars Claimant/Payee Amount

Disbursement Cortes & Reyna P50,508.75

 Voucher (DV)
No. 4, Jan.
8, 1990
Check No.
931019

DV No. 1889 Atty. Antonio Jose Cortes P1,421,040.00

Aug. 13, 1992.
Check No.
236063-S

DV No. 1890 Atty. Jesus R. Cornago P1,786,300.00

Aug. 13, 1992
Check No.
236064-S

DV No. 2151 Atty. Antonio Jose Cortes P838,85 1.44

Sept. 28,
1992, Check
No. 238174-S

DV No. 2226 Atty. Antonio Jose Cortes P886,662.40

Oct. 8,. 1992
Check No.
239528-S

DV No. 2227 Atty. Jesus R. Cornago P341,024.00

Oct. 8, 1992
Check No.
239529-S

DV No. 2474 Atty. Jesus R. Cornago P287,018.40

Nov. 6, 1992
Check No.
250933

DV No. 2475 Atty. Antonio Jose Cortes P746,247.83

Dec. 9, 1992
Check No.
253163

DV No. 2751 Atty. Antonio Jose Cortes P747,247.84

 Dec. 9, 1992
Check No.
253163

DV No. 2752 Atty. Jesus R. Cornago P287,018.40

Dec. 9, 1992
Check No.
253164 ____________

TOTAL P7,380,410.31

Disbursement Voucher Nos. 2474 and 2475 were approved by respondent

Azaa. The rest were approved by respondent Governor.
In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and
balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay
informed respondent Governor that payments made by the Province as
attorneys fees amounting to P7,380,410.31 have been disallowed by the
Commission on Audit (COA, with the following notation:

The disbursement vouchers detailed hereunder represent payments for attorneys fees
of Cortes & Reyna Law Office for legal services rendered re: G.R. No. 87479
NAPOCOR, Petitioner vs.The Province of Albay, et al., Respondent, Supreme
Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the
requisite prior written conformity and acquiescence of the Solicitor General x x x as
well as the written concurrence of the commission on Audit as provided for and
required under COA Circular No. 86-255 dated April 2, 1986, re: Inhibition against
employment by government: agencies and instrumentalities x x x of private lawyers to
handle their legal cases, viz.

The complaint alleges that by entering into the retainer agreement with
private lawyers and paying P7, 380, 410.31 to the said private lawyers,
respondents violated several provisions of law which warrants the imposition
of administrative penalties against them. It is to be noted that respondents
Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the
Sangguniang Panlalawigan when Resolution No. 129 was passed. However,
the complaint alleges that these respondents were named in the complaint
because they approved the supplemental budget/appropriation ordinances
providing for the payment of the attorneys fees.
The sole issue in this case is whether or not respondents have incurred
administrative liability in entering into the retainer agreement with Atty.
Cornago and the Cortes & Reyna Law Firm and in making payments pursuant
to said agreement for purposes of the case filed by NPC with the Supreme
Court against the Province.
We find merit in the complaint and hold that under the circumstances
surrounding the transaction in question the respondents abused their
authority.
Sec. 481 of the Local Government Code (R.A. No. 7160) requires the
appointment of a legal officer for the province whose functions include the
following:

Represent the local government unit in all civil actions and special proceedings
wherein the local government unit or any official thereof, in his official capacity is a
party; Provided, That, in actions or proceeding where a component city or
municipality is a party adverse to the provincial government or to another component
city or municipality, a special legal officer may be employed to represent the adverse
party.

The Supreme Court has ruled in Municipality of Bocaue, et al. v.

Manotok, 93 Phil. 173 (1953), that local governments [sic] units cannot be
represented by private lawyers and it is solely the Provincial Fiscal who can
rightfully represent them, thus:

Under the law, the Provincial Fiscal of Bulacan, and his assistants are charged with
the duty to represent the province and any municipality thereof in all civil actions xxx

It would seem clear that the Provincial Fiscal is the only counsel who can rightfully
represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers
hired by the Province of Bulacan] have no standing in the case. The appeal herein
interposed in behalf of the plaintiffs cannot therefore be maintained.

This ruling applies squarely to the case at hand because Sec. 481 of the
Local Government Code is based on Sec. 1681 of the Revised Administrative
Code which was the subject of interpretation in the abovecited case
of Municipality of Bocaue, et al. v. Manotok.
In hiring private lawyers to represent the Province of Albay, respondents
exceeded their authority and violated the abovequoted section of the Local
Government Code and the doctrine laid down by the Supreme Court.
Moreover, the entire transaction was attended by irregularities. First, the
disbursements to the lawyers amounting to P7,380,410.31 were disallowed by
the Provincial Auditor on the ground that these were made without the prior
written conformity of the Solicitor General and the written concurrence of the
Commission on Audit (COA) as required by COA Circular No. 86-25 5 dated 2
April 1986.
The respondents attempted to dispute this finding by presenting the
Solicitor Generals conformity dated 15 July 1993. This conformity was,
however obtained after the disbursements were already made in 1990 and
1992. What is required by COA Circular No. 86-255 is a prior written
conformity and acquiescence of the Solicitor General.
Another irregularity in the transaction concerns the lawyers. Resolution
No. 0 1-90 authorized the respondent Governor to sign and confirm a retainer
contract for legal services with the Cortes & Reyna Law Firm at 202 E.
Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent
Governor was, however, not only with the Cortes & Reyna Law Firm but also
with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue,
Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm
are two separate entities is evident from the retained contract itself:

As collaborating counsels for the respondents in the aforementioned case, our law

firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of
FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending
in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to
eighteen percent (18%) of the value of the property subject matter of the case which is
P214 million, payable to us in the event we obtain a favorable judgment for you from
the Supreme Court in the case. Xerox expenses for copies of motions, memorandum
and other matters to be filed with the Supreme Court in the case, together with xerox
copies of documentary evidence, as well as mailing expenses, will be for your account
also.

xxx xxx xxx

Very truly yours,

CORTES & REYNA

LAW FIRM

- and -

Atty. JESUS R. CORNAGO

Jarnecca Building
280 Tomas Morato Avenue

by:
 (Sgd.) ANTONIO JOSE F. CORTES

With my conformity:

(Sgd.) GOV. ROMEO R. SALALIMA

Province of Albay
(Italics supplied.)
In entering into a retainer agreement not only with the Cortes & Reyna
Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded
his authority under Resolution No. 01-90.
Complicating further the web of deception surrounding the transaction is
the fact that it was only Atty. Cornago who appeared as collaborating counsel
of record of the Province in the Supreme Court case (G.R. No. 87479). We
quote the entry of appearance of Any. Cornago in full in said case:

APPEARANCE

COMES NOW, the undersigned counsel, and to this Honorable Supreme Court,
respectfully enters his appearance as counsel for the respondents in the above-entitled
case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the
respondents. This appearance bears the conformity of the respondent Gov. Romeo R.
Salalima, as shown by his signature appearing at the space indicated below. In this
connection, it is respectfully requested that, henceforth, the undersigned counsel be
furnished with a copy of all notices, orders, resolutions and other matters that may be
issued in this case at its office address indicated below.

Quezon City, for Manila, August 24, 1989.

(Sgd.) JESUS R. CORNAGO

Counsel for Respondents
280 Tomas Morato Avenue
Quezon City
PTR No. 561005-89 Mandaluyong
IBP No. 279351-89 Pasig, MM

With my conformity:

(Sgd.) ROMEO R. SALALIMA

Respondent
Office of the Governor of Albay
Legaspi City
 Even the Solicitor General, in his letter to respondent Governor dated 15
July 1993, noted that the Province is represented in the Supreme Court by
Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna
Law Firm, thus:

Incidentally, a check with our office records of the case G.R. No. 87479 reveals that
the Province of Albay and its officials named respondents therein were represented in
the Supreme Court by Atty. Romulo Ricafort the Provinces Legal Officer II, and
Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas
Morato Avenue, Quezon City; no appearance was entered therein by the Cortes &
Reyna Law Firm. (Italics supplied)

Furthermore, the memorandum with the Supreme Court filed for the
Province was signed by Atty. Cornago and not by the Cortes & Reyna Law
Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record
of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the
Province and amounting to more than P3.6 million were issued in favor of the
Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words,
respondents disbursed money to the Cortes & Reyna Law Firm although the
latter did not appear as counsel for the Province in the Supreme Court in G.R.
No. 87479.
Finally, the attorneys fees agreed upon by respondent Salalima and
confirmed by the other respondents are not only unreasonable but also
unconscionable. The contingent fee of 18% of the P2l4 million claim of the
Province against NPC amounts to P38.5 million. The word unconscionable, as
applied to attorneys fee, means nothing more than that the fee contracted for,
standing alone and unexplained would be sufficient to show that an unfair
advantage had been taken of the client, or that a legal fraud had been taken
of the client, or that a legal fraud had been perpetrated on him.
(Moran, Comments on the Rules of Court, Vol. 6, p. 236.)
The Province has a legal officer, Atty. Ricafort, who had already filed a
comment on NPCs petition against the Province. The comment filed by Atty.
Ricafort already covers the basic issues raised in the petition. When Atty.
Cornago filed an appearance and subsequently a memorandum for the
Province, the petition was already been given due course by the Supreme
Court and the only pleading to be filed by the parties before the Court would
issue its decision was a memorandum. Surely, one memorandum could not
be worth P38.5 million.
Furthermore, the professional character and social standing of Atty.
Cornago are not such as would merit a P38.5 million fee for the legal services
rendered for the Province. During the hearing, respondent Governor admitted
that he had hired Atty. Cornago because they were schoolmates at San Beda
College, thus:
SECRETARY CORONA:

May I ask a question Governor, what was your basis for choosing this particular Law
office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this
particular Law office? Frankly, I never heard of this law office. Who recommended
it?

GOVERNOR SALALIMA:
Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda.
SECRETARY CORONA:
Were you classmates?
GOVERNOR SALALIMA:
No.
SECRETARY CORONA:
How many years apart were you?
GOVERNOR SALALIMA:
Two (2) years.
SECRETARY CORONA:
So, you knew each other from the law school?
GOVERNOR SALALIMA:
Yes.
SECRETARY CORONA:
Were you members of the same fraternity in San Beda?
GOVERNOR SALALIMA:
Yes.
(TSN, 12 July 1992, pp. 27-29.)

It is evident that respondent Governor hired Atty. Cornago not on the basis
of his competency and standing in the legal community but purely for personal
reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such
as would merit P38.5 million for one memorandum, which, in this case, it had
not even filed because it was not the counsel of record. Hence, considering
the labor and time involved, the skill and experience called for in the
performance of the services and the professional character and social
standing of the lawyers, the attorneys fee of P38.5 million is
unconscionable. By allowing such scandalously exorbitant attorneys fees
which is patently disadvantageous to the government, respondents betrayed a
personal bias to the lawyers involved and committed abuse of authority.
Parenthetically, the retainer contract containing such exorbitant attorneys
fees may also be violative of the following: (a) COA Circular No. 85-55-A (8
September 1985) prohibiting irregular, unnecessary, excessive or extravagant
expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of R.A. No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act.
Finally, the Committee again applies in this case, as was applied in OP
Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305(1)
of the Local Government Code.
In view of the foregoing, the Committee holds that respondents committed
abuse of authority under Sec. 60(e) of the Local Government Code for the
following:
1. Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to
handle the case of the Province of Albay before the Supreme Court in G.R. No.
87479;
2. Disbursing public money in violation of COA rules and regulations;
3. Paying the Cortes & Reyna Law Firm public money although it was only Atty.
Cornago who was the counsel of record of the Province of Albay in the Supreme
Court case;
4. Authorizing an unconscionable and grossly disadvantageous attorneys fees of P38.5
million; and
5. Additionally, as to respondent Governor, entering into a retainer agreement not only
with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his
authority under Resolution No. 0 1-90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the

Committee recommends that the following penalties of suspensions without
pay be meted out:
a. Respondents Salalima six (6) months
and Azaa each; and
b. All the other
respondents four (4) months
each.

III. OP Case No. 5471

 This refers to the administrative complaint filed by the Tiwi Mayor Naomi
Corral against Albay Governor Romeo Salalima, Albay Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus
Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla,
Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor
Rodolfo Benibe for abuse of authority and oppression under Sec. 60 (c) and
(e) of R.A. No. 7160.
The antecedent facts are as follows:

On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang
Bayan charged herein respondent Governor Salalima and Vice-Governor Azana for
abuse of authority, misconduct in office and oppression. This administrative
complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-8- 93),
arose from the refusal of said respondents to remit Tiwis share in the P40,724,47 1.74
tax delinquency payments made by NPC. This case was subsequently substituted by
OP Case No. 54790 filed on 25 January 1993 which now included as respondents
Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go,
Marcellana, Fernandez, Fontanilla, and Rontas.

Subsequently, Mayor Corral became the subject of several administrative and criminal
complaints filed by certain individuals with the following offices:

a. Achilles Berces v. Mayor Naomi Corral

(1) Albay Sangguniang Pan lalawigan, Adm. Case No. 02-92

(2) Albay Sangguniang Panlalawigan, Adm. Case No. 05-92
(3) Office of the Ombudsman, OMB Adm. Case No. 1930163
(4) Office of the Ombudsman, OMB Case No. 0930682
(5) Office of the Ombudsman, OMB-092-3008

b. Muriel Cortezano v. Mayor Naomi Corral

(6) Albay Sangguniang Panlalawigan, Adm. Case No. 10-93

(7) Office of the Ombudsman, OMB-0-92-3000

c. Amelia Catorce v. Mayor Naomi Corral

(8) Albay Sangguniang Panlalawigan, Adm. Case No. 09-93

d. Aida Marfil v. Mayor Naomi Corral

(9) Albay Sangguniang Panlalawigan, Adm. Case No. 07-93

 (10) Office of the Ombudsman, 0MB Case No. 5-93-0110

e. Rodolfo Belbis v. Mayor Naomi Corral

(11) Albay Sangguniang Panlalawigan, Adm. Case No. 06-93

(12) Office of the Ombudsman, 0MB Case No. 0-93-0098

f. Kin. Juan Victoria, et al. v. Mayor Naomi Corral

(13) Office of the Prosecutor, I.S. No. 93-046 (for Libel). Legaspi City

g. Governor Romeo Salalima, et al. v. Mayor Naomi Corral

(14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and

Perjury), Legaspi City
(15) Office of the Prbsecutor, I.S. No. 93-045 (for Libel and
Perjury), Legaspi City
or a total of fifteen (15) cases.
On 7 January 1993, the respondent-members of the Sangguniang
Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor
Corral be placed under preventive suspension for sixty (60) days pending the
resolution of Adm. Case No. 05-92 (Exh. 18).
On 11 January 1993, respondent Salalima approved said resolution and,
on the same date, officially directed herein respondent Tiwi Vice-Mayor
Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh.
18).
On 21 January 1993, Department of the Interior and Local Government
(DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993
suspension order issued by respondent Salalima. In his letter to Mayor Corral
(Exh. C), he stated, thus:

Considering that the preventive suspension imposed upon you by Governor Romeo R.
Salalima of that province, was issued after the latters refusal to accept your answer,
therefore, the issuance of subject order of preventive suspension is premature, the
issues having not been joined.

In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by
Governor Salalima, is hereby lifted.
 On 26 January 1993, the Office of the President (OP), acting in OP Case
No. 4982, after finding that the evidence of guilt is strong, and given the
gravity of the offense and the great probability that the continuance in office of
respondent Governor Romeo R. Salalima could influence the witnesses or
pose a threat to the safety and integrity of the records and other
evidence, placed respondent Salalima under preventive suspension for sixty
(60) days (Exhs. D to D-2).
Respondent Salalima subsequently sought the reversal of the OP Order
dated 26 January 1993 but the same was dismissed by the Supreme Court on
26 May 1993 in the case entitled Salalima v. the Hon. Executive
Secretary, G.R. No. 108585 (Exh. E).
On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents
from hearing the six cases filed against her with the Sangguniang
Panlalawigan (Adm. Case Nos. 02-92, 05-92,06-93,07-93,09-93 and 10-93)
asserting her constitutional right to due process of law. This motion was
however denied with the respondent-members of the Sangguniang
Panlalawigan assuming jurisdiction over the cases.
After conducting marathon hearings, respondent-members of the
Sangguniang Panlalawigan rendered judgments against Mayor Corral and
imposing, among others, the following penalties of suspension:
1. In Adm. Case No. 02-92 - suspension for two (2) months (see Decision dated 1 July
1993, [Exhs. F to F-2]);
2. In Adm. Case No. 05-92 - suspension for three (3) months (see Resolution dated 5
July 1993, [Exhs. 0 to G-2]);
3. In Adm. Case No. 06-93 and 07-93 - suspension for one (1) month (see Resolution
dated 8 July 1993, (Exhs. H to H-3]); and
4. In Adm. Case No. 10-93 - suspension for the period of unexpired term (see
Resolution dated 9 July 1993, (Exhs. I to 1-2]).

On 22 July 1993, respondent Salalima issued a directive addressed to the

Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial
Assessor, Provincial Accountant, Provincial Budget Officer, Provincial DILG
Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining
them to assist in the implementation of the decisions suspending
Mayor Corral by decreeing directives to your subordinate officials in Tiwi,
Albay to strictly adheres thereto.
Subsequently, Mayor Corral interposed appeals from the decisions of
respondent-members of the Sangguniang Panlalawigan suspending her from
office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer
that the implementation of said decisions be stayed.
On 28 July 1993, the OP ordered the suspension/stay of execution of the
decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to J-2).
Similarly, on 3 August 1993, the OP ordered the suspension/stay of
execution of the decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs.
K to K-i).
Also, with respect to Adm. Case Nos. 6-93 and 7- 93, the Civil Service
Commission (CSC) issued Resolution Nos. 93- 005 (dated 5 January 1993)
and 92- 817 (dated 4 March 1993), which provided the bases and
justifications for the acts of Mayor Corral complained of in these two (2)
cases. The Supreme Court subsequently affirmed said CSC resolutions
(Exhs. L to L-2).
In the multiple charges for libel and perjury against Mayor Corral, arising
from her complaint in OP Case No. 5470, filed with the Regional Trial Court of
Legaspi City, the Supreme Court ordered the lower court to cease and desist
from proceeding with the case in a resolution dated 16 September 1993
(Exhs. Q to Q-2).
In determining whether respondents are guilty of the charges levelled
against them, the following issue has to be resolved, i.e., whether the conduct
of the proceedings in the administrative cases filed and the series of
suspension orders imposed by the respondent- members of the Sangguniang
Panlalawigan on Mayor Corral constitute oppression and abuse of authority?

Oppression has been defined as an act of cruelty, severity, unlawful exaction,

domination or excessive use of authority. (Ochate v. Ty Deling, L- 13298, March 30,
1959, 105 Phil. 384, 390.)

Abuse means to make excessive or improper use of a thing, or to employ it in a

manner contrary to the natural or legal rules for its use. To make an extravagant or
excessive use, as to abuse ones authority (Blacks Law Dictionary <5th Ed.>, II). It
includes misuse (City of Baltimore t. Cornellsville & S.P. Ry, Co., 6 Phils. 190, 191,
3 Pitt 20, 23).

Moreover, Section 63(d) of R.A. No. 7 160 expressly states that, [a]ny
abuse of the exercise of the powers of preventive suspension shall be
penalized as abuse of authority.
Now, does the above narration of facts show commission by respondents
of the administrative offenses complained of?
 A review of the proceedings reveal that the same were marked by haste
and arbitrariness. This was evident from the start when Mayor Corral was
preventively suspended (in Adm. Case No. 05-92) even before she could file
her answer. In the other cases, respondent-members of Sangguniang
Panlalawigan ruled that Mayor Corral had waived her right to adduce
evidence in her defense.
Consequently, respondents did not also fully evaluate the evidences
presented to support the charges made. As such, all the decisions of
respondents suspending Mayor Corral were ordered lifted suspended by the
DILG and OP. Thus, even the cases filed with the Office of the Ombudsman,
which were based on the same incidents complained of in the said
administrative cases, were subsequently dismissed.
Respondents should have inhibited themselves from assuming jurisdiction
over said cases (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93, and 10-
93) as timely moved by Mayor Corral considering that they were the
respondents in various administrative complaints she earlier filed with the OP
and with the DILG starting with OP Case No. 4892. However, despite the
violation of due process resulting from their collective acts, respondents, in
their determination and eagerness to suspend and harass Mayor Corral,
proceeded to hear and decide said cases.
The OP has no jurisdiction over administrative complaints filed against
elective municipal officials. Under Sec. 6 1(b) of R.A. No. 7160, [a] complaint
against any elective official of a municipality shall be filed before the
Sangguniang Panlalawigan whose decision may be appealed to the Office of
the President.
WHEREFORE, thecharges against Vice Mayor Benibe are dismissed.
However, all the other respondents herein are found guilty of oppression and
abuse of authority under Section 60(c) and (e) of R.A. No. 7160. Accordingly,
it is recommended that each of them be meted the penalty of four (4) months
suspension without pay.

IV. OP Case No. 5450

This refers to the administrative charges filed by Tabaco Mayor Antonio

Demetriou against Governor Romeo Salalima for violation of - Section 60,
pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of
Republic Act No. 3019, and the provisions of PD No. 1594, as amended.
 This case was filed with the Office of the President (OP) on 18 October
1993 and docketed as OP Case No. 5450.
The facts as found by this Committee are as follows:
On 27 September 1989 the Tabaco Public Market was destroyed by fire
(Exh. A, par. 1).
On 26 September 1990, the OP advised Mayor Demetriou and respondent
Salalima that the P12.0 Million in Budgetary Assistance to Local Government
Units (BALGU) funds earlier remitted by the national government to the
Province, should be used for the rehabilitation of the Tabaco Public Market,
and that the project should be implemented by the Provincial Governor in
consultation with the Mayor of Tabaco (Exh. 37).
On 8 May 1991, a public bidding was conducted by the Albay Provincial
Government for the repair and rehabilitation of the Tabaco Public Market
(Exh. A, par. 1).
On 29 May 1991, the Province represented by respondent Salalima and
RYU Construction entered into a contract for P6,783,737.59 for said repair
and rehabilitation (Exh. H). Among others, the contract stipulated that the
contracted work should be completed in 150 days.
The contractor started the project on 1 July 1991 and completed the same
on 2 June 1992 (Exh. 41).
On 6 March 1992, the Province represented by respondent Salalima
entered into another contract (Exh. 1) for P4,304,474.00 with RYU
Construction for additional repair and rehabilitation works for the Tabaco
Public Market. The terms and conditions of this contract are the same as
those stipulated in the 29 May 1991 contract except for the construction
period which is only for 90 days.
Construction of the second project commenced on 27 March 1992 and
was completed on 2 June 1992 (Exh. 42).
In his complaint, Mayor Demetriou alleged that despite the delay in the
completion of work under the first contract, liquidated damages were not
imposed on, nor collected from, RYU Construction by the Province. Moreover,
he claims that the second contract with RYU Construction was entered into in
violation of P.D. No. 1594 as RYU incurred delay with respect to the first
contract.
We find merit in the complaint:
 Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item lB
of the implementing Rules and Regulations (IRR) of PD No. 1594, as
amended, read:
CI 8 - LIQUIDATED DAMAGES
1. Where the contractor refuses or fails to satisfactorily complete the work within the
specified contract time, plus any time extension duly granted and is hereby in
default under the contract, the contractor shall pay the Government for liquidated
damages, and not by way of penalty, an amount to be determined in accordance
with the following formula for each calendar day of delay, until the work is
completed and accepted or taken over by the Government:

xxx xxx xxx
2. To be entitled to such liquidated damages, the Government does not have to prove
that it has incurred actual damages. Such amount shall be deducted from an)
money due or which may become due the contractor under the contract and/or
collect such liquidated damages from the retention money or other securities posted
by the contractor whichever is convenient to the Government.

CI 1 - Extension of Contract time

1. Should the amount of additional work of any kind or other special circumstances of
any kind whatsoever occur such as to fairly entitle the contractor to an extension of
contract time, the Government shall determine the amount of such extension;
provided that the Government is not bound to take into account any claim for an
extension of time unless the contractor has prior to the expiration of the contract
time and within thirty (30) calendar days after such work has been commenced or
after the circumstances leading to such claim have arisen, delivered to the
Government notices in order that it could have investigated them at that time.
Failure to provide such notice shall constitute a waiver by the contractor of any
claim. Upon receipt of full and detailed particulars, the Government shall examine
the facts and extent of the delay and shall extend the contract time for completing
the contract work when, in the Governments opinion, the finding of facts justify an
extension.

xxx xxx xxx
IB 10.4.2 - By Negotiated Contract
1. Negotiated contract may be entered into only where any of the following conditions
exists and the implementing office/agency/corporation is not capable of undertaking
the project by administration:

xxx xxx xxx
c. Where the subject project is adjacent or contiguous to an ongoing project and it
could be economically prosecuted by the same contractor, in which case, direct
negotiation may be undertaken with the said contractor at the same unit prices
adjusted to price levels prevailing at the time of negotiation using parametric
formulae herein prescribed without the 5% deduction and contract conditions, less
 mobilization cost, provided that he has no negative slippage and has demonstrated
a satisfactory performance. (Italics supplied)

A reading of items CI 8 and CI 11 above shows that the collection of

liquidated damages is mandatory in cases of delay unless there are valid
orders of extension of contract work given by the Government.
Under the 29 May 1991 contract, the repair works should have been
completed on 26 December 1991 since the project was started on 1 July. But
then the project was finished only on 2 June 1992.
This is confirmed by the COA through SAO Report No. 93-11 (Exh. N),
thus -
xxx xxx xxx

xx x The project was completed only on June 2, 1992 or a delay of 132 working days,
as shown in the following tabulation

Billing As of Days Lapsed %Accomplishment

First Dec. 2, 1991 130 26.48

Second Jan. 8, 1992 187 53.19

Third Feb. 10, 1992 100 75.23

Final June 2, 1992 202 100.00

In view of the delays in project completion the Team requested from the Provincial
Engineer any copy of the order suspending and resuming the work (suspension and
resume order) since the same was not attached to the claims of the contractor or paid
vouchers. Unfortunately, the Provincial Engineer could not provide said document as
the Engineering Office had not issued any. In effect, there was no basis for the
extension of contract time and the contractor should have been considered as behind
schedule in the performance of the contract. Despite its deficiency, no liquidated
damages was ever imposed against the contractor. (pp. 25-26) [Italics supplied]

Respondent Salalima failed to submit any evidence concerning any order issued by
the Provincial Government extending RYU Constructions contract.

The law requires that requests for contract extension as well as the orders granting the
same must be made and given prior to the expiration of the contract. The rationale for
this requirement is obviously to prevent a contractor from justifying any delay after
the contract expires.
Before signing the 6 March 1992 contract, which was entered into on a negotiated
basis and not through bidding, respondent Salalima should have inquired whether or
not RYU Construction incurred negative slippage. Had he done so, the matter of
imposing and collecting liquidated damages would have been given appropriate
attention. This is aggravated by the fact that respondent knew that RYU Construction
was the contractor for the original rehabilitation and repair work for the Tabaco Public
market being the signatory to the first contract.

Clearly, therefore, there was a failure on the part of the Province to impose and collect
liquidated damages from the erring contractor, RYU Construction.

Going to the second charge, we find that respondent Salalima unmistakably violated
the provisions of P.D. No. 1594, as amended.

Fundamental is the rule that government contracts especially infrastructure contracts

are awarded only through bidding. As explicitly ordained by Sec. 4 of P.D. No. 1594,
construction projects shall generally be undertaken by contract after competitive
bidding. By its very nature and characteristic, a competitive public bidding aims to
protect the public interest by giving the public the best possible advantages through
open competition. At the same time, bidding seeks to prevent or curtail favoritism,
fraud and corruption in the award of the contract which otherwise might prevail were
the government official concerned is vested with the full or absolute authority to
select the prospective contractor (Fernandez, Treatise on Government Contracts
Under Philippine Law, 1991 Ed. citing Caltex Phil. Inc. v. Delgado Bros., 96 Phil.
368; San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v. Hernandez,
66 Phil. 68).

This is precisely the reason why negotiated contracts can be resorted to only in a few
instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR of PD
No. 1594, supra.However, said proviso requires that the contractor had not incurred
negative slippage and has demonstrated a satisfactory performance.

And since RYU Construction incurred negative slippage with respect to the repair
works under the 29 May 1991 contract as found by COA, it was anomalous for the
Province through respondent Salalima to enter into a negotiated contract with said
contractor for additional repair and rehabilitation works for the Tabaco Public market.
Failing to comply with the requirements of law, the 6 March 1992 contract is clearly
irregular, if not illegal.

Finally, said contract may also be violative of the following: (a) COA Circular

No. 85-55-A. (dated 8 September 1985) prohibiting irregular expenditures or uses of
funds; and (b) Sec. 3(e) and (g) of R.A. No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act.

Premises considered, this Committee finds the respondent guilty of abuse of authority
and gross negligence. Accordingly, it is recommended that the penalty of suspension
without pay be meted out on respondent Salalima for five (5) months. (pp. 2-35)

The President then concluded and disposed as follows:

After a careful review of the cases, 1 agree with and adopt the findings and
recommendations of the Ad Hoc Committee, supported as they are by the evidence on
record.

WHEREFORE, the following penalties are meted out on each of the respondents, to
wit:

In OP Case No. 5470 -

a. Governor Romeo Salalima - suspension without pay for five (5) months:

b. Vice-Governor Danilo Azaa, Albay Sangguniang Panlalawigan Members Juan
Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, Sr., Jesus
Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas -
suspension without pay for four (4) months.

In OP Case No. 5469 -

a. Governor Romeo Salalima and Vice-Governor Danilo Azaa - suspension without pay
for six (6) months; and
b. Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana,
Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go,
Sr., and Nemesio Baclao - suspension without pay for four (4) months;

In OP Case No. 5471 -

a. Governor Romeo Salalima and Albay Sangguniang Members Juan Victoria, Lorenzo
Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon
Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao suspension
without pay for four (4) months;

In OP Case No. 5450 -

a. Governor Romeo Salalima - suspension without pay for five (5) months.
The suspension imposed on respondents shall be served successively but shall not
exceed their respective unexpired terms, in accordance with the limitation imposed
under Section 66(b) of the Local Government Code.

It must at once be pointed out that insofar as O.P. Case No. 5471 is
concerned, nothing of its substantive aspect is challenged in this petition. The
petitioners mentioned it only in their claim of prematurity of Administrative
Order No. 153 in view of their appeal from Special Audit Office (SAO) Report
No. 93-11 to the COA en banc. O.P. Case No. 5471 is the administrative
complaint filed by Tiwi Mayor Corral against the petitioners for abuse of
authority and oppression in connection with their conduct in the several
administrative cases filed by certain individuals against Mayor Corral. It has
no logical nexus to the appeal. The decision then in O.P. Case No. 5471
stands unchallenged in this petition.
As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the
petitioners may be reformulated in this wise:
I. Did the Office of the President act with grave abuse of discretion amounting to lack or
excess of jurisdiction in suspending the petitioners for periods ranging from twelve
to twenty months?
II. Did the Office of the President commit grave abuse of discretion in deciding O.P.
Cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners appeal to
the COA en bane from Special Audit Office (SAO) Report No. 93-11 and the
Certificate of Settlement and Balances (CSB)?
III. Did the Office of the President commit grave abuse of discretion in holding the
petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its
rightful share in the P40,724,471.74 which the Province of Albay had received from
the NPC under the Memorandum of Agreement?
IV. Did the Office of the President commit grave abuse of discretion in suspending in
O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May
1992, for an alleged administrative offense committed during his first term; and in
suspending in O.P. Case No. 5469 the other petitioners, some of whom were
elected and others reelected on 11 May 1992, for an alleged administrative offense
committed in 1989?
V. Did the Office of the President commit grave abuse of discretion in holding the
petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section
60(e) of the Local Government Code of 1991 although they were charged under
Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local
Government Code of 1991, thereby depriving them of due process of law?

We shall take up these issues in the order they are presented.

I
 Anent the first issue, the petitioners contend that the challenged
administrative order deprived them of their respective offices without
procedural and substantive due process. Their suspensions ranging from
twelve months to twenty months or for the entire duration of their unexpired
term, which was then only seven months, constituted permanent
disenfranchisement or removal from office in clear violation of Section 60 of
R.A. No. 7160 which mandates that an elective local official may be removed
from office by order of the court.
The Comment of the Solicitor General is silent on this issue. However,
respondents Mayor Corral and newly appointed provincial officials maintain
that the suspension imposed upon the petitioners in each of the four cases
was within the limits provided for in Section 66(b) of R.A. No. 7160 and that
the aggregate thereof ranging from twelve months to twenty months, but not
to exceed the unexpired portion of the petitioners term of office, did not
change its nature as to amount to removal.
Section 66(b) of R.A. No. 7160 expressly provides:

SEC. 66. Form and Notice of Decision. - x x x

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or
a period of six (6) months for every administrative offense, nor shall said penalty
be a bar to the candidacy of the respondent so suspended as long as he meets
the qualifications for the office.

This provision sets the limits to the penalty of suspension, viz., it should not

exceed six months or the unexpired portion of the term of office of the
respondent for every administrative offense.  An administrative offense means
[1]

every act or conduct or omission which amounts to, or constitutes, any of the
grounds for disciplinary action. The offenses for which suspension may be
imposed are enumerated in Section 60 of the Code, which reads:

SEC. 60. Grounds for Disciplinary Action. - An elective local official may be

disciplined, suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of
duty;
(d) Commission of any offense involving moral turpitude or an offense punishable
by at least prision mayor;
(e) Abuse of authority;
 (f) Unauthorized absence for fifteen (15) consecutive working days, except in the
case of members of the sangguniang panialawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;
(g) Acquisition for, or acquisition of, foreign citizenship or residence or the status of
an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds

enumerated above by order of the proper court.
Assuming then that the findings and conclusions of the Office of the
President in each of the subject four administrative cases arc correct, it
committed no grave abuse of discretion in imposing the penalty of
suspension, although the aggregate thereof exceeded six months and the
unexpired portion of the petitioners term of office. The fact remains that the
suspension imposed for each administrative offense did not exceed six
months and there was an express provision that the successive service of the
suspension should not exceed the unexpired portion of the term of office of
the petitioners. Their term of office expired at noon of 30 June 1995.  And this [2]

Court is not prepared to rule that the suspension amounted to the petitioners
removal from office. [3]

II

Petitioners contend that the decisions in OP. Cases Nos. 5450, 5470, and

5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while
that in O.P. Case No. 5469 is based on the CSB issued by the Provincial
Auditor of Albay. Since the Report and the CSB are on appeal with, and
pending resolution by, the Commission on Audit En Banc, they are not yet
final, conclusive, and executory as admitted by the team leader of the COA
Audit Team that submitted the SAO Report and by the Provincial Auditor who
issued the CSB. The petitioners also point out that the COA Chairman had
already reversed the recommendation in the SAO Report No. 93- 11 that the
Provincial Government of Albay should share with the Municipality of Tiwi the
P40,724,471.74 representing payments of the NPC as of December 1992.
They then submit that Administrative Order No. 153 suspending all the
petitioners is premature in view of the pendency of the appeal to the COA en
banc from SAO Report No. 93-11 and the CSB.
This issue of prematurity was raised before the Ad Hoc Committee. In
rejecting it, the Committee explained as follows:
It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J)
raised by the respondents to COA nierely involve questions of law, i.e., as to
whether the Province alone should be entitled to the payments made by NPC
under the MOA, and whether the shares of Tiwi and Daraga, the concerned
barangays, and the national government, should be held in trust for said
beneficiaries.
Considering that the factual findings under SAO Report 93-11 are not
disputed, this Committee has treated said factual findings as final or, at the
very least, as corroborative evidence.
Respondents contention that COAs factual findings, as contained in SAO
Report No. 93-11 cannot be considered in this investigation is untenable. For
no administrative and criminal investigation can proceed, if a respondent is
allowed to argue that a particular COA finding is still the subject of an appeal
and move that the resolution of such administrative or criminal case be held in
abeyance. This will inevitably cause unnecessary delays in the investigation of
administrative and criminal cases since an appeal from a COA finding may be
brought all the way up to the Supreme Court.
Besides, the matters raised by the respondents on appeal involve only
conclusions/interpretation of law. Surely, investigative bodies, such as COA,
the Ombudsman and even this Committee, are empowered to make their own
conclusions of law based on a given set of facts.
Finally, sufficient evidence has been adduced in this case apart from the
factual findings contained in SAO Report No. 93-11 to enable this Committee
to evaluate the merits of the instant complaint.
The alleged appeal from the CSB is unclear from the records, and in light
of the foregoing statement of the Ad Hoc Committee it is obvious that such
appeal was not raised.
We agree with the Ad Hoc Committee that the pendency of the appeal
was no obstacle to the investigation and resolution of the administrative
cases.
It may be further stressed that a special audit has a different purpose in
line with the constitutional power, authority, and duty of the COA under
Section 2, Subdivision D, Article IX of the Constitution to examine, audit, and
settle all accounts pertaining to the revenue and receipts of, and expenditures
or uses of funds and property, owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations with original charters
and its exclusive authority .. . to define the scope of its audit and examination,
establish the techniques and methods required therefor, and promulgate
accounting and auditing rules and regulations, including those for the
prevention and disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or uses of government funds
and properties. [4]

III

As to the third issue, the petitioners aver that the P40,724,471.74 received
by the Province of Albay from the NPC represents part of the price paid for
properties owned by the province in a corporate capacity and repurchased by
the former owner. It constitutes payment of a debt and not of a tax, which debt
arose from and was a consequence of, the Memorandum of Agreement dated
July 29, 1992. They further contend that the Memorandum of Agreement
(MOA) partakes of a deed of sale. And nowhere in the Real Property Tax
Code (P.D. No. 464)  is there any provision requiring provinces to share with
[5]

the municipalities the proceeds of a private sale. What are required to be

shared are only the collections of real property taxes and Special Education
Fund (SEF); proceeds of delinquent taxes and penalties, or of the sale of
delinquent real property, or of the redemption thereof; and income realized
from the use, lease, or disposition of real property seized by the province.
It must be recalled that in August 1992, Governor Sal alima and NPC
President, Pablo Malixi, were already agreed that the basic tax due from the
NPC was P207,375,774 72.  But later, Malixi informed the former that upon
[6]

recomputation of the real property tax payable to the Province of Albay at the
minimum of one-fourth of one percent pursuant to Section 39(1) of the Real
Property Tax Code, the NPC came up with an adjusted figure of
P 129,609,859.20.  Governor Salalima then explained that one percent was
[7]

applied in the computation for the reconciled figure of P207,375,774.72

because the one-half percent imposed by the respective ordinances of the
municipalities where the delinquent properties are located was added to the
one-half percent imposed by the tax ordinance of the Province. His reply
reads as follows:

September 9, 1992

Hon. Pablo V. Malixi

President, National Power
Corporation
Diliman, Quezon City
Dear President Malixi:

As suggested in your letter of August 31, 1992, we are very pleased to furnish you
herewith the certified true copies of the local tax ordinances which served as our basis
in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit:
(a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting
Provincial Tax Ordinance No.4, whose Section I, provides:

There shall be levied, assessed and collected as annual ad valorem tax on real
properties including improvements thereon equivalent to one half of one percent of
the assessed value of real property.

(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay,
whose Section 2 provides:

That the tax rate of real property shall be one-half of one percent of the assessed value
of real property.

(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga. Albay,
whose Section 3 provides:

Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2 of
1%) of the assessed value of the real property.

These tax ordinances were in pursuance to Sec. 39 (1)(3) of P.D. 464, the
applicable law during the period 1984 to 1987. By adding the one half percent
imposed in the tax Ordinance of Tiwi to the one ha If percent also imposed in
the Provincial Tax Ordinance, we have a total of one percent which we used
as the rate of levy in computing the basic tax due on the real properties in
Tiwi.
On the real properties in Daraga, we also added the one half percent
imposed by the Daraga Tax Ordinance to the one-half percent of the
Provincial Tax Ordinance.
The additional tax of one percent for the Special Educational Fund (SEF)
was imposed pursuant to Section 41 of P.D. 464, which provides as follows:

There is hereby imposed annual tax of one percent on real property to accrue to the
Special Educational Fund created under Republic Act No. 5447, which shall be in
addition to the basic real property tax which local governments are authorized to levy,
assess and collect under this Code; x x x

We hope that the foregoing clarification will settle whatever doubt there is
on why we applied 1% for basic tax and another 1% for SEP in arriving at
P207,375,774.72. (Italics supplied).
[8]

The petitioners even emphasized in the instant petition that Governor

Salalima specifically included the amounts due to the Municipalities of Tiwi
and Daraga in asking Napocor to settle its obligations. In other words, the
original claim of P214,845,184.76 or the reconciled figure of P207,375,774.72
representing real property taxes from 11 June 1984 to 10 March 1987 already
covered the real property taxes payable to the municipalities concerned.
Hence, when the Province sold at public auction the delinquent properties
consisting of buildings, machines, and similar improvements, it was acting not
only in its own behalf but also in behalf of the municipalities concerned. And
rightly so, because under Section 60 of P.D. No. 477, the Province, thru the
Provincial Treasurer, is duty bound to collect taxes throughout the province,
including the national, provincial, and municipal taxes and other revenues
authorized by law. Moreover, under Section 73 of the Real Property Tax
Code, the provincial or city treasurer is the one authorized to advertise the
sale at public auction of the entire delinquent real property, except real
property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and
penalties due and costs of sale. He is also authorized to buy the delinquent
real property in the name of the province if there is no bidder or if the highest
bid is for an amount not sufficient to pay the taxes, penalties, and costs of
sale. [9]

Since in this case, there was no bidder, the provincial treasurer could buy,
as he did, the delinquent properties in the name of the province for the
amount of taxes, penalties due thereon, and the costs of sale, which included
the amounts of taxes due the municipalities concerned. It is therefore wrong
for the petitioners to say that the subject NPC properties are exclusively
owned by the Province. The Municipalities of Tiwi and Daraga may be
considered co-owners thereof to the extent of their respective shares in the
real property taxes and the penalties thereon.
It must further be noted that it is the provincial treasurer who has charge of
the delinquent real property acquired by the province.  He is the one whom
[10]

the delinquent taxpayer or any person holding a lien or claim to the property
deal with in case the latter wishes to redeem the property.  He is also the one
[11]

authorized to effect the resale at public auction of the delinquent property.

 Thus, the municipalities concerned had to depend on him for the effective
[12]

collection of real property taxes payable to them. Accordingly, when the

Province entered into the Memorandum of Agreement with the NPC, it was
also acting in behalf of the municipalities concerned. And whatever benefits
that might spring from that agreement should also be shared with the latter.
The MOA, contrary to the position of the petitioners, is not an ordinary
contract of sale. Hereinbelow is the pertinent portion of that agreement:
WHEREAS, the Supreme Court ruled in the NATIONAL POWER
CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that
NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of Tiwi
and Daraga, Albay for the period June 11, 1984 to March 10, 1987;

WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the

PROVINCE OF ALBAY;

WHEREAS, there is a need to further validate/reconcile the computation of the realty

tax in the total amount of P2 14,845, 184.76;

NOW, THEREFORE, in view of the foregoing premises and for and in consideration
of the mutual covenant and stipulations hereinafter provided, the parties hereto have
agreed as follows:

1. NAPOCOR will make an initial payment of P17,783,000.00 receipt of which is

hereby acknowledged.
2. The balance of the validated/reconciled amount of the real estate taxes will be
paid in 24 equal monthly installments, payable within the first five (5) working
days of the month. The first monthly installment will commence in September
1992.
3. Should NAPOCOR default in any monthly installment, the balance will
immediately become due and demandable.
4. NAPOCOR will pay such other taxes and charges, such as the franchise tax as
provided for in the Local Government Code of 1991.
5. In consideration of settlement of NAPOCOR s tax liability, the PROVINCE OF
ALBAY hereby waives its claim of ownership over NAPOCOR properties subject
in G.R. No. 87479 upon full payment of the balance due to the PROVINCE OF
ALBAY.[13] (Italics supplied).

The tenor of the abovequoted agreement shows that the intention of the
parties was for the redemption of the subject properties in that the Province
would waive ownership over the properties in consideration of settlement of
Napocors tax liability.
Under Section 78 of the Real Property Tax Code, the delinquent real
property sold at public auction may be redeemed by paying the total amount
of taxes and penalties due up to the date of redemption, costs of sale, and the
interest at 20% of the purchase price.
The petitioners are estopped from claiming that the amounts received by
the Province from the NPC constitute payments of a debt under the MOA or of
contract price in a private sale. They constitute redemption price or payments
of NPCs tax liabilities. This is evident from the MOA as well as the entry in the
receipt issued by the Province, thru the Provincial Treasurer, which reads:
Date: July 29, 1992
Received from National Power Corp.
Manila

In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos

Philippine Currency P17,763,000.00.

In payment of the following:

For Partial Payment = P17,763,000.00

of Realty Tax Delinquency of Case No. 87479, NPC
vs. Province of Albay

Total P17,763,000.00

(Sgd.) Abundio M. Nuez

Provincial Treasurer[14]

Also worth noting is Provincial Ordinance No. 09-92 adopted by the

petitioners which provides: That the installments paid by said corporation for
the months of September to December 1992, representing partial payments of
the principal tax due are declared forfeited in favor of the Provincial
Government of Albay.
Moreover, in Resolution No. 197-92, the petitioners referred as tax
benefits the shares of certain municipalities and barangays from the amount
paid by the NPC under the MOA. The resolution reads in part as follows:

WHEREAS, by virtue of the Memorandum Agreement, signed by the petitioner,

Province of Albay and respondent-oppositor, National Power Corporation (NPC), the
latter have agreed and paid an initial payment to the Province of Albay;

WHEREAS, the sharing based on the Local Government Code of 1991, the
municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,4
16.82 respectively and the barangays Bay in Lingao (sic) to P319.00 and Tagoytoy in
Malinao to P98 1.00;

WHEREAS, these tax benefits due them are not enough to pursue a worthwhile

project in said municipalities and barangays considering the present economic
situation.  (Italics supplied)
[15]
 As pointed out by the respondents, if the MOA was merely for the
repurchase by NPC of its properties from Albay, what could have been
executed was a simple deed of absolute sale in favor of NPC at an agreed
price not necessarily P214 million which was the total amount of the realty tax
in arrears Additionally, there would have been no need for the parties to
further validate/reconcile the tax computation of the realty tax in the total
amount of P214,845,184 76
Clearly, the P40,724,471 74 paid by the NPC to the Province pursuant to
the MOA was part of the redemption price or of the realty taxes in arrears.
It is conceded that under Section 78 of the Real Property Tax Code,
redemption of delinquency property must be made within one year from the
date of registration of sale of the property The auction sale of the NPC
properties was held on 30 March 1989 and declared valid by this Court in its 4
June 1990 decision. It was only on 29 July 1992 that the NPC offered to
repurchase its former properties by paying its tax liabilities. When the
Province accepted the offer, it virtually waived the one-year redemption
period.And having thus allowed the NPC to redeem the subject properties and
having received part of the redemption price, the Province should have shared
with the municipalities concerned those amounts paid by the NPC in the same
manner and proportion as if the taxes had been paid in regular course
conformably with Section 87(c) of the Real Property Tax Code, which
provides:
(c) the proceeds of all delinquent taxes and penalties, as well as the income realized
from the use, lease or other disposition of real property acquired by the province or
city at a public auction in accordance with the provisions of this Code, and the
proceeds of the sale of the delinquent real property or of the redemption thereof
shall accrue to the province, city or municipality in the same proportion as if the tax
or taxes had been paid in regular course.

As early as 3 August 1992, respondent Mayor Corral had already made a

written demand for payment or remittance of the shares accruing to the
Municipality of Tiwi. Petitioner Governor Salalima refused saying that the
initial check of P 17,763,000.00 was merely an earnest money. Yet, on 22
October 1992, the petitioners passed the aforequoted Resolution No. 197-92
giving some local government units, where smaller portions of the delinquent
properties are situated, shares from the payments made by the NPC under
the MOA.
The petitioners cannot claim to have acted in good faith in refusing to give
the municipalities of Tiwi and Daraga their share. As pointed out by the Office
of the Solicitor General, the petitioners were aware of the local tax ordinances
passed by the respective Sanggunian Bayan of Tiwi and Daraga relative to
the realty tax to be imposed on properties located in their respective
localities. Petitioner Salalima had even quoted the said ordinances in his letter
to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the
petitioners averred in the instant petition that Governor Salalima specifically
included the amounts due to the municipalities of Tiwi and Daraga in asking
NPC to settle its obligations.
When doubt arose as to whether the municipalities concerned are entitled
to share in the amounts paid by the NPC, the province filed on 20 November
1992 a petition for declaratory relief, which the Regional Trial Court of Albay
decided only on 12 May 1994. Yet, as of 31 December 1992, the province had
already disbursed or spent a large part of the NPC payments. As found by
COA, of the P40,724,471.74 actually paid by the NPC and lodged in the
provinces general fund, P35,803,118.30 was disbursed or spent by the
Province.
If petitioners were really in good faith, they should have held the shares of
Tiwi and Daraga in trust  pursuant to Section 309(b) of the Local Government
[16]

Code of 1991, which provides:

Trust funds shall consist of private and public monies which have officially come into
the possession of the local government or of a local government official as trustee,
agent or administrator ...A trust fund shall only be used for the specific purpose for
which it came into the possession of the local government unit.

As pointed out by the Ad Hoc Committee in its report, which was adopted
by the Office of the President:

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the
concerned barangays and the national government in the payments made by NPC
under the MOA, should be, as they are in fact, trust funds. As such, the Province
should have, upon receipt of said payments, segregated and lodged in special
accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the
national government for eventual remittance to said beneficiaries. Said shares cannot
be lodged in, nor remain part of, the Provinces general fund. Moreover, the Province
cannot utilize said amounts for its own benefit or account (see also Sec. 86, P.D. No.
464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi

and Daraga, the concerned barangays and the national government, cannot be
appropriated nor disbursed by the Province for the payment of its own expenditures or
contractual obligations.
However, in total disregard of the law, the Province treated the P40,724,471.74 NPC
payments as surplus adjustment (Account 7-92-419) and lodged the same in its
general fund. No trust liability accounts were created in favor of the rightful
beneficiaries thereof as required by law.

We cannot therefore fault the public respondents with grave abuse of

discretion in holding the petitioners guilty of abuse of authority for failure to
share with the municipalities of Tiwi and Daiaga the amount of
P40,724,471.74 paid by the NPC.
IV

We agree with the petitioners that Governor Salalima could no longer be

held administratively liable in O.P. Case No. 5450 in connection with the
negotiated contract entered into on 6 March 1992 with RYU Construction for
additional rehabilitation work at the Tabaco Public Market. Nor could the
petitioners be held administratively liable in O.P. Case No. 5469 for the
execution in November 1989 of the retainer contract with Atty. Jesus Cornago
and the Cortes and Reyna Law Firm. This is so because public officials
cannot be subject to disciplinary action for administrative misconduct
committed during a prior term, as held in Pascual vs. Provincial Board of
Nueva Ecija  and Aguinaldo vs. Santos.  In Pascual, this Court ruled:
[17] [18]

We now come to one main issue of the controversy - the legality of

disciplining an elective municipal official for a wrongful act committed by him
during his immediately preceding term of office.
In the absence of any precedent in this jurisdiction, we have resorted to
American authorities. We found that cases on the matter are conflicting due in
part, probably, to differences in statutes and constitutional provisions, and
also, in part, to a divergence of views with respect to the question of whether
the subsequent election or appointment condones the prior misconduct. The
weight of authority, however, seems to incline to the rule denying the right to
remove one from office because of misconduct during a prior term, to which
we fully subscribe.

Offenses committed, or acts done, during previous term are generally held not to
furnish cause for removal and this is especially true where the constitution provides
that the penalty in proceedings for removal shall not extend beyond the removal from
office, and disqualification from holding office for the term for which the officer was
elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401;
Montgomery vs. Nowell, 40 S.W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130
P. 2d 237; Board of Comrs. of Kingfisher County vs. Shutler, 281 P. 222;
State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d.
217).

The underlying theory is that each term is separate from other terms, and that
the reelection to office operates as a condonation of the officers previous
misconduct to the extent of cutting off the right to remove him therefor (43 Am.
Jur. P. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.
(NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17
A.I.R. 281, 63 So. 559, 50 LRA (NS) 553

The Court should never remove a public officer for acts done prior to his present term
of office. To do otherwise would be to deprive the people of their right to elect their
officers. 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 disregard or forgave
his faults or misconduct, if he had been guilty of any. It is not for the court, by reason
of such faults or misconduct to practically overrule the will of the people.

This Court reiterated this rule in Aguinaldo and explicitly stated therein:

Clearly then, the rule is that a public official can not be removed for administrative
misconduct committed during a prior term, since his re-election to office operates 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.

However, the Office of the Solicitor General maintains that Aguinaldo does

not apply because the case against the official therein was already
pending when he filed his certificate of candidacy for his reelection bid. It is of
the view that an officials reelection renders moot and academic an
administrative complaint against him for acts done during his previous term
only if the complaint was filed before his reelection. The fine distinction does
not impress us. The rule makes no distinction. As a matter of fact,
in Pascual the administrative complaint against Pascual for acts committed
during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year
after he was reelected.
The rule adopted in Pascual, qualified inAguinaldo insofar as criminal
cases are concerned, is still a good law. Such a rule is not only founded on
the theory that an officials reelection expresses the sovereign will of the
electorate to forgive or condone any act or omission constituting a ground for
administrative discipline which was committed during his previous term. We
may add that sound public policy dictates it. To rule otherwise would open the
floodgates to exacerbating endless partisan contests between the reelected
official and his political enemies, who may not stop to hound the former during
his new term with administrative cases for acts, alleged to have been
committed during his previous term. His second term may thus be devoted to
defending himself in the said cases to the detriment of public service. This
doctrine of forgiveness or condonation cannot, however, apply to criminal acts
which the reelected official may have committed during his previous term.
We thus rule that any administrative liability which petitioner Salalima
might have incurred in the execution of the retainer contract in O.P. Case No.
5469 and the incidents related therewith and in the execution on 6 March
1992 of a contract for additional repair and rehabilitation works for the Tabaco
Public Market in O.P. Case No. 5450 are deemed extinguished by his
reelection in the 11 May 1992 synchronized elections. So are the liabilities, if
any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who
signed Resolution No. 129 authorizing petitioner Salalima to enter into the
retainer contract in question and who were reelected in the 1992 elections.
This is, however, without prejudice to the institution of appropriate civil and
criminal cases as may be warranted by the attendant circumstances. As to
petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became
members of the Sangguniang Panlalawigan only after their election in 1992,
they could not be held administratively liable in O.P. Case No. 5469, for they
had nothing to do with the said resolution which was adopted in April 1989
yet.
Having thus held that the petitioners could no longer be administratively
liable in O.P. Case No. 5469, we find it unnecessary to delve into, and pass
upon, the fifth issue.
WHEREFORE, the instant special action for certiorari is hereby partly
GRANTED. That part of the challenged Administrative Order No. 153
imposing the penalty of suspension on petitioner Governor Romeo Salalima in
O.P. Cases Nos. 5450 and 5469 and on petitioners Vice Governor Danilo
Azaa and Sangguniang Panlalawigan Members Juan Victoria, Lorenzo
Reyeg, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr.,
Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No.
5469 are hereby ANNULLED and SET ASIDE, without prejudice to the filing of
appropriate civil or criminal actions against them if warranted by the attendant
circumstances.
No pronouncement as to costs.
SO ORDERED.
 Narvasa, C.J., Padilla, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, Hermosisima, Jr.

G.R. No. 112099 February 21, 1995

ACHILLES C. BERCES, SR., petitioner, 

vs.
HON. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR., CHIEF PRESIDENTIAL LEGAL
COUNSEL ANTONIO CARPIO and MAYOR NAOMI C. CORRAL OF TIWI, ALBAY, respondents.

QUIASON, J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court with
prayer for mandatory preliminary injunction, assailing the Orders of the Office of the President as
having been issued with grave abuses of discretion. Said Orders directed the stay of execution of
the decision of the Sangguniang Panlalawigan suspending the Mayor of Tiwi, Albay from office.

Petitioner filed two administrative cases against respondent Naomi C. Corral, the incumbent Mayor
of Tiwi, Albay with the Sangguniang Panlalawigan of Albay, to wit:

(1) Administrative Case No. 02-92 for abuse of authority and/or oppression for non-
payment of accrued leave benefits due the petitioner amounting to P36,779.02.

(2) Administrative Case No. 05-92 for dishonesty and abuse of authority for installing
a water pipeline which is being operated, maintained and paid for by the municipality
to service respondent's private residence and medical clinic.

On July 1, 1993, the Sangguniang Panlalawigan disposed the two Administrative cases in the
following manner:
 (1) Administrative Case No. 02-92

ACCORDINGLY, respondent Mayor Naomi C. Corral of Tiwi, Albay, is hereby

ordered to pay Achilles Costo Berces, Sr. the sum of THIRTY-SIX THOUSAND AND
SEVEN HUNDRED SEVENTY-NINE PESOS and TWO CENTAVOS (P36,779.02)
per Voucher No. 352, plus legal interest due thereon from the time it was approved in
audit up to final payment, it being legally due the Complainant representing the
money value of his leave credits accruing for services rendered in the municipality
from 1988 to 1992 as a duly elected Municipal Councilor. IN ADDITION, respondent
Mayor NAOMI C. CORRAL is hereby ordered SUSPENDED from office as Municipal
Mayor of Tiwi, Albay, for a period of two (2) months, effective upon receipt hereof for
her blatant abuse of authority coupled with oppression as a public example to deter
others similarly inclined from using public office as a tool for personal vengeance,
vindictiveness and oppression at the expense of the Taxpayer (Rollo, p. 14).

(2) Administrative Case No. 05-92

WHEREFORE, premises considered, respondent Mayor NAOMI C. CORRAL of Tiwi,

Albay, is hereby sentenced to suffer the penalty of SUSPENSION from office as
Municipal Mayor thereof for a period of THREE (3) MONTHS beginning after her
service of the first penalty of suspension ordered in Administrative Case No. 02-92.
She is likewise ordered to reimburse the Municipality of Tiwi One-half of the amount
the latter have paid for electric and water bills from July to December 1992, inclusive
(Rollo, p. 16).

Consequently, respondent Mayor appealed to the Office of the President questioning the decision
and at the same time prayed for the stay of execution thereof in accordance with Section 67(b) of the
Local Government Code, which provides:

Administrative Appeals. — Decision in administrative cases may, within thirty (30)

days from receipt thereof, be appealed to the following:

xxx xxx xxx

(b) The Office of the President, in the case of decisions of the

sangguniang panlalawigan and the sangguniang panglungsod of
highly urbanized cities and independent component cities.

Acting on the prayer to stay execution during the pendency of the appeal, the Office of the President
issued an Order on July 28, 1993, the pertinent portions of which read as follows:

xxx xxx xxx

The stay of the execution is governed by Section 68 of R.A. No. 7160 and Section 6
of Administrative Order No. 18 dated 12 February 1987, quoted below:

Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from
becoming final or executory. The respondent shall be considered as having been
placed under preventive suspension during the pendency of an appeal in the events
he wins such appeal. In the event the appeal results in an exoneration, he shall be
 paid his salary and such other emoluments during the pendency of the appeal (R.A.
No. 7160).

Sec. 6 Except as otherwise provided by special laws, the execution of the

decision/resolution/order appealed from is stayed upon filing of the appeal within the
period prescribed herein. However, in all cases, at any time during the pendency of
the appeal, the Office of the President may direct or stay the execution of the
decision/resolution/order appealed from upon such terms and conditions as it may
deem just and reasonable (Adm. Order No. 18).

xxx xxx xxx

After due consideration, and in the light of the Petition for Review filed before this
Office, we find that a stay of execution pending appeal would be just and reasonable
to prevent undue prejudice to public interest.

WHEREFORE, premises considered, this Office hereby orders the suspension/stay

of execution of:

a) the Decision of the Sangguniang Panlalawigan of Albay in

Administrative Case No. 02-92 dated 1 July 1993 suspending Mayor
Naomi C. Corral from office for a period of two (2) months, and

b) the Resolution of the Sangguniang Panlalawigan of Albay in

Administrative Case. No. 05-92 dated 5 July 1993 suspending Mayor
Naomi C. Corral from office for a period of three (3) months (Rollo,
pp. 55-56).

Petitioner then filed a Motion for Reconsideration questioning the aforesaid Order of the Office of the
President.

On September 13, 1990, the Motion for Reconsideration was denied.

Hence, this petition.

II

Petitioner claims that the governing law in the instant case is R.A. No. 7160, which contains a
mandatory provision that an appeal "shall not prevent a decision from becoming final and
executory." He argues that administrative Order No. 18 dated February 12, 1987, (entitle
"Prescribing the Rules and Regulations Governing Appeals to Office the President") authorizing the
President to stay the execution of the appealed decision at any time during the pendency of the
appeal, was repealed by R.A. No. 7160, which took effect on January 1, 1991 (Rollo, pp. 5-6).

The petition is devoid of merit.

Petitioner invokes the repealing clause of Section 530 (f), R.A. No. 7160, which provides:

All general and special laws, acts, city charters, decrees, executive orders,
administrative regulations, part or parts thereof, which are incosistent with any of the
provisions of this Code, are hereby repealed or modified accordingly.
The aforementioned clause is not an express repeal of Section 6 of Administrative Order No. 18
because it failed to identify or designate the laws or executive orders that are intended to be
repealed (cf. I Sutherland, Statutory Construction 467 [1943]).

If there is any repeal of Administrative Order No. 18 by R.A. No. 7160, it is through implication
though such kind of repeal is not favored (The Philippine American Management Co., Inc. v. The
Philippine American Management Employees Association, 49 SCRA 194 [1973]). There is even a
presumption against implied repeal.

An implied repeal predicates the intended repeal upon the condition that a substantial conflict must
be found between the new and prior laws. In the absence of an express repeal, a subsequent law
cannot be construed as repealing a prior law unless an irreconcible inconsistency and repugnancy
exists in the terms of the new and old laws (Iloilo Palay and Corn Planters Association, Inc. v.
Feliciano, 13 SCRA 377 [1965]). The two laws must be absolutely incompatible (Compania General
de Tabacos v. Collector of Customs, 46 Phil. 8 [1924]). There must be such a repugnancy between
the laws that they cannot be made to stand together (Crawford, Construction of Statutes 631 [1940]).

We find that the provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No.
18 are not irreconcillably inconsistent and repugnant and the two laws must in fact be read together.

The first sentence of Section 68 merely provides that an "appeal shall not prevent a decision from
becoming final or executory." As worded, there is room to construe said provision as giving
discretion to the reviewing officials to stay the execution of the appealed decision. There is nothing
to infer therefrom that the reviewing officials are deprived of the authority to order a stay of the
appealed order. If the intention of Congress was to repeal Section 6 of Administrative Order No. 18,
it could have used more direct language expressive of such intention.

The execution of decisions pending appeal is procedural and in the absence of a clear legislative
intent to remove from the reviewing officials the authority to order a stay of execution, such authority
can provided in the rules and regulations governing the appeals of elective officials in administrative
cases.

The term "shall" may be read either as mandatory or directory depending upon a consideration of
the entire provisions in which it is found, its object and the consequences that would follow from
construing it one way or the other (cf. De Mesa v. Mencias, 18 SCRA 533 [1966]). In the case at
bench, there is no basis to justify the construction of the word as mandatory.

The Office of the President made a finding that the execution of the decision of the Sagguniang
Panlalawigan suspending respondent Mayor from office might be prejudicial to the public interest.
Thus, in order not to disrupt the rendition of service by the mayor to the public, a stay of the
execution of the decision is in order.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
 [G.R. No. 117618. March 29, 1996]

VIRGINIA MALINAO, petitioner, vs. HON. LUISITO REYES, in his

capacity as Governor of the Province of Marinduque,
SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and
WILFREDO RED, in his capacity as Mayor of Sta. Cruz,
Marinduque, respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari and mandamus to annul the decision

dated October 21, 1994 of the Sangguniang Panlalawigan of Marinduque,
dismissing the administrative case filed by petitioner against respondent
Mayor Wilfredo Red of Sta. Cruz, Marinduque. The ground for the present
petition is that the same body already found respondent Mayor guilty of abuse
of authority in removing petitioner from her post as Human Resource Manager
without due process in another decision which is now final and executory.
The facts are as follows:
Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz,
Marinduque. Respondent Mayor filed a case against her in the Office of the
Ombudsman for gross neglect of duty, inefficiency and incompetence. While
the case was pending, he appointed a replacement for petitioner.
On February 24, 1994 petitioner filed an administrative case, docketed as
Administrative Case No. 93-03, against respondent Mayor in the Sangguniang
Panlalawigan of Marinduque, charging him with abuse of authority and denial
of due process.
On August 12, 1994, the case was taken up in executive session of the
Sanggunian. The transcript of stenographic notes of the session  shows that
[1]

the Sanggunian, by the vote of 5 to 3 of its members, found respondent

Mayor guilty of the charge and imposed on him the penalty of one-month
suspension,
 The result of the voting was subsequently embodied in a Decision
dated September 5, 1994,  signed by only one member of the Sanggunian,
[2]

Rodrigo V. Sotto, who did so as Presiding Chairman, Blue Ribbon Committee,

Sangguniang Panlalawigan. Copies of the Decision were served on
respondent Mayor Red as well as on respondent Governor Luisito Reyes
on September 12, 1994.
On September 14, 1994, respondent Mayor filed a manifestation  before [3]

the Sanggunian, questioning the Decision on the ground that it was signed by
Sotto alone, apparently acting in his capacity and designated as Presiding
Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. He
contended that because of this the decision could only be considered as a
recommendation of the Blue Ribbon Committee and he was not bound
thereby.
On September 13, 1994, respondent Mayor sought the opinion of the
Secretary of the Department of the Interior and Local Government regarding
the validity of the Decision.
In his letter dated September 14, 1994,  DILG Secretary Rafael M. Alunan
[4]

III opined that the decision alluded to does not appear to be in accordance
with Section 66 of the Local Government Code of 1991 and settled
jurisprudence since

in the instant case, the purported decision of the Blue Ribbon Committee should have
been submitted to, approved and/or adopted by the Sangguniang Panlalawigan as a
collegial body inasmuch as the Sangguniang Panlalawigan has the administrative
jurisdiction to take cognizance thereof in conformity with Section 61 and Section 66
of the Code. It is not for the said committee to decide on the merits thereof, more so to
impose the suspension, as its duty and function is purely recommendatory. If it were
at all the intention of the Sangguniang Panlalawigan to adopt entirely the
recommendation of the Blue Ribbon Committee, it should have so stated and the
members of the Sangguniang Panlalawigan, who may have affirmatively voted
thereon or participated in its deliberations, should have affixed their respective
signatures on whatever decision that could have been arrived at. . . .

On the other hand petitioner sent a letter  on October 14, 1994 to

[5]

respondent Governor Reyes, demanding that the Decision suspending

respondent Mayor from office be implemented without further delay.
In his letter dated October 20, 1994,  respondent Governor informed the
[6]

Sanggunian that he agreed with the opinion of the DILG for which reason he
could not implement the Decision in question.
 On October 21, 1994,  the Sanggunian, voting 7 to 2, acquitted
[7]

respondent Mayor of the charges against him. The vote was embodied in a

Decision of the same date, which was signed by all members who had thus
voted.[8]

Hence this petition.

I. Petitioners basic contention is that inasmuch as the Decision
of September 5, 1994 had become final and executory, for failure of
respondent Mayor to appeal, it was beyond the power of the Sanggunian to
render another decision on October 21, 1994 which in effect reversed the first
decision.
These contentions are without merit. What petitioner claims to be
the September 5, 1994 Decision of the Sangguniang Panlalawigan bore the
signature of only one member (Rodrigo V. Sotto) who signed the Decision as
Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.
Petitioner claims that at its session on August 12, 1994, the Sanggunian by
the vote of five members against three found respondent Mayor guilty of
having removed petitioner as Human Resources Officer III without due
process and that this fact is shown in the minutes of the session of the
Sanggunian. The minutes referred to read in pertinent part as follows:
KGD. SOTTO - No if he [respondent Mayor] is acquitted, then lets acquit it. Whatever
is the decision everybody goes to the majority.
(There was nominal voting from the Sangguniang Panlalawigan member. For NOT
GUILTY OR GUILTY)
KGD. ZOLETA - I vote not guilty.
KGD. MUHI - Guilty.
KGD. LIM - Not guilty.
KGD. RAZA - First I would like to say that I will decide on the merit of the case. The
fact that the Civil Service ordered the reinstatement wherein Virginia Molinao is
included, only means that the Supreme Court duly constituted has found the merit
of the decision of the Civil Service.
I vote that the Mayor is guilty.
KGD. PINAROC - Guilty.
KGD. DE LUNA - Guilty, there is no due process and to protect the integrity of the
Sangguniang Panlalawigan.
KGD. LAGRAN - Guilty.
KGD. ZOLETA - My reason for voting not guilty is that the mayor acted in good faith,
he just followed the order of the reorganization recommended by the Placement
Committee.
 KGD. REJANO - The order of the reorganization was given by the Civil Service
Commission and based on the contention made by Kgd. Palamos that since there
should be reorganization to be conducted by the Civil Service Commission the
mayor was supposed to go on with that reorganization and based on the
reorganization there should be a screening committee to check whether the
employees are really working efficiently. Based on the case that has been given to
Mrs. Malinao, based on the witnesses, Ligeralde, Monterozo and Pastrana and
then decided that Mayor Red has done in good faith.
So I vote Not Guilty.

Five (5) voted GUILTY:

Kgd. Muhi

Kgd. Raza

Kgd. Pinaroc

Kgd. Lagran

Kgd. De Luna

Three (3) voted NOT GUILTY:

Kgd. Rejano

Kgd. Zoleta

Kgd. Lim

KGD. SOTTO - Punishment...

Censure? Reprimand? Suspension?
KGD. LAGRAN - I suggest that only those who voted guilty should vote as to what
punishment should be given.
KGD. LIM - All the members should be given the right to vote.
(THE VOTING PROCEEDED.)
Kgd. Muhi - Suspension
Kgd. Raza - Suspension
Kgd. Pinaroc - Suspension
Kgd. Lagran - Suspension
Kgd. de Luna - Suspension
 KGD. ZOLETA - Since we voted not guilty therefore no punishment.
KGD. REJANO - No punishment.
KGD. LIM - No punishment.
KGD. SOTTO - How many months?
KGD. MUHI - One month.
KGD. RAZA - One month.
KGD. PINAROC - One month.
KGD. LAGRAN - One month.
KGD. DE LUNA - One month.
KGD SOTTO - Be it on record that on August 12, 1994 during the Executive Session of
the Sangguniang Panlalawigan en banc the respondent is hereby found guilty.

Effective upon receipt of the Decision, copy furnished: the counsel for Respondent,
the Counsel for Complainant, the Municipal Treasurer, Sta. Cruz, Marinduque, the
Provincial Auditor, the Civil Service Commission, Boac, Marinduque, the DILG,
Boac, Marinduque, the Provincial Governor.

Contrary to petitioners claim, what the minutes only show is that on August
12, 1994 the Sanggunian took a vote on the administrative case of
respondent Mayor and not that it then rendered a decision as required
by 66(a) of the Local Government Code (R.A. No. 7160) which provides as
follows:

66. Form and Notice of Decision. - (a) The investigation of the case shall be
terminated within ninety (90) days from the start thereof. Within thirty (30) days after
the end of the investigation, the Office of the President or the sanggunian concerned
shall render a decision in writing stating clearly and distinctly the facts and the
reasons for such decision. Copies of said decision shall immediately be furnished the
respondent and all interested parties.

In order to render a decision in administrative cases involving elective local

officials, the decision of the Sanggunian must thus be in writing stating clearly
and distinctly the facts and the reasons for such decision. What the
Sanggunian, therefore, did on August 12, 1994 was not to render a decision.
Neither may the so-called Decision prepared by Sanggunian Member
Rodrigo V. Sotto on September 5, 1994 be regarded as the decision of the
Sanggunian for lack of the signatures of the requisite majority. Like the
procedure in the Supreme Court, the voting following the deliberation of the
members of the Sanggunian did not necessarily constitute their decision
unless this was embodied in an opinion prepared by one of them and
concurred in by the others, in the same way that the voting following the
deliberation on a case in the Supreme Court becomes its decision only after
the opinion prepared by a Justice is concurred in by others composing the
majority. Until they have signed the opinion and the decision is promulgated,
the Justices are free to change their votes.
[9]

Indeed, in his comment  in this case, Member Sotto admits that the draft
[10]

decision he prepared had only his signature due to the reluctance of some
Kagawads to affix their signatures. Consequently the draft never became a
decision. It is noteworthy that the draft was signed by Member Sotto in his
capacity as Presiding Chairman of the Blue Ribbon Committee of the
Sangguniang Panlalawigan and that it did not provide spaces for the
signatures of other members of the Sanggunian had it been intended that it be
signed by them. This fact led the DILG to conclude that the draft was simply
the report and recommendation of the Blue Ribbon Committee to the
Sanggunian.
Now, as already stated, the Sanggunian, at its session on October 21,
1994, took another vote and, 7 to 2, decided to dismiss the case against
respondent Mayor. This time its decision was made in writing, stating the facts
and the law on which it was based, and it was signed by the members taking
part in the decision. This, and not the so-called decision
of September 5, 1994, is the decision of the Sanggunian.
Petitioner complains that no notice of the session by the Sanggunian
on October 21, 1994 was given to her. None was really required to be given to
her. The deliberation of the Sanggunian was an internal matter.
II. Petitioner brought this case by way of Petition for certiorari and
mandamus. A prime specification of the writ of certiorari, however, is that
there is no appeal nor any plain, speedy and adequate remedy in the ordinary
course of law available to petitioner. But, in the case at bar, petitioner could
have appealed the decision of the Sanggunian to the Office of the President
as provided in 67(b) of the Local Government Code.
III. At all events, this case is now moot and academic as a result of the
expiration of respondents term during which the act complained of was
allegedly committed, and further proceedings against respondent Mayor are
barred by his reelection on May 8, 1995.
Pursuant to 66(b) of the Code, the penalty of suspension cannot exceed
the unexpired term of the respondent or a period of six (6) months for every
administrative offense. On the other hand, any administrative disciplinary
proceeding against respondent is abated if in the meantime he is reelected,
because his reelection results in a condonation of whatever misconduct he
might have committed during his previous term. [11]

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
THE SANGGUNIANG   G.R. No. 170626
BARANGAY OF BARANGAY  
DON MARIANO MARCOS,  
MUNICIPALITY OF Present:
BAYOMBONG PROVINCE OF  
NUEVA VISCAYA represented by  
BARANGAY KAGAWAD JOSE YNARES-SANTIAGO, J.,
CENEN SANTOS, MARIO Chairperson,
BACUD, WALTER FRANCISCO, AUSTRIA-MARTINEZ,
ROSITA SEBASTIAN, CHICO-NAZARIO,
LAURETA CABAUATAN, NACHURA, and
CECILIA ALINDAYU and MELY REYES, JJ.
SIMANGAN,  
Petitioners,  
  Promulgated:
- versus -  
   
PUNONG BARANGAY  
SEVERINO MARTINEZ,  
Respondent. March 3, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
 
 
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 2005[1] and 30 November 2005[2] 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 61[4] 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 2004for Dishonesty, Misconduct in Office and
Violation of the Anti-Graft 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 Martinezfrom 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 Reconsideration [13] 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 barangayofficial  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
theSangguniang 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. Gloria[25] 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.

G.R. No. 153475. November 13, 2002]

ATTY. MIGUEL M. LINGATING, petitioner, vs. COMMISSION ON

ELECTIONS and CESAR B. SULONG, respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari to set aside the resolution,  dated April 4,
[1]

2002, of the Commission on Elections (COMELEC) en banc, reversing the

resolution,  dated August 1, 2001, of its First Division and dismissing the
[2]

petition for disqualification filed by petitioner Miguel M. Lingating against

respondent Cesar B. Sulong as candidate for mayor of Lapuyan, Zamboanga
del Sur in the May 14, 2001 elections.
On May 3, 2001, petitioner filed with the Provincial Election Supervisor in
Pagadian City a petition for the disqualification of respondent Sulong,
pursuant to 40(b) of Republic Act No. 7160 (Local Government Code), which
disqualifies from running for any elective local position those removed from
office as a result of an administrative case.  It appears that respondent Sulong
[3]

had previously won as mayor of Lapuyan on January 18, 1988. In the May 11,
1992, and again in the May 8, 1995 elections, he was reelected. In a petition
for disqualification, petitioner alleged that in 1991, during his first term as
mayor of Lapuyan, respondent Sulong, along with a municipal councilor of
Lapuyan and several other individuals,  was administratively charged (AC No.
[4]

12-91) with various offenses,  and that, on February 4, 1992, the

[5]

Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the

charges and ordered his removal from office. Petitioner claimed that this
decision had become final and executory, and consequently the then vice-
mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent
Sulong on March 3, 1992. [6]

Respondent Sulong denied that the decision in AC No. 12-91 had become
final and executory. He averred that after receiving a copy of the decision on
February 17, 1992, he filed a motion for reconsideration and/or notice of
appeal thereof on February 18, 1992; that on February 27, 1992, the
Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No.
12-91, to comment on respondent Sulongs motion for reconsideration and/or
notice of appeal; that the said complainant had not yet complied therewith and
his (respondent Sulongs) motion had consequently remained
pending. Respondent Sulong denied he had been removed from office by
virtue of the decision in AC No. 12-91.
After the parties had filed their memoranda, the case was submitted for
resolution. Because the COMELEC was unable to render judgment before the
elections of May 14, 2001, respondent Sulong was voted for in the elections,
receiving 4,882 votes as against the 3,611 votes for petitioner. On May 16,
2001, respondent Sulong was proclaimed by the Municipal Board of
Canvassers of Lapuyan as the duly elected mayor of that municipality.
In a resolution dated August 1, 2001, the COMELECs First Division
declared respondent Cesar B. Sulong disqualified. It held:

Section 40(b) of the Local Government Code is clear that any person removed from
office by reason of an administrative case is disqualified from running for any elective
local office.

From such point, it is clear that Respondent Sulong was declared guilty of having
violated the Anti-Graft and Corrupt Practices Act by the Sangguniang Panlalawigan
of Zamboanga del Sur. . .which. . .has become final and executory, thereby depriving
him of his right to run for public office.
. . . .

WHEREFORE, in the light of the foregoing, this Commission hereby resolves to

GRANT this Petition and DISQUALIFY Respondent Cesar B. Sulong to run for
Municipal mayor for Lapuyan, Zamboanga del Sur in the May 14, 2001 Elections in
violation of Section 40[b] of the Local Government Code. [7]

Respondent Sulong filed a motion for reconsideration citing a certification,

dated August 7, 2001, of Provincial Secretary of Zamboanga del Sur (OIC)
Wilfredo Cimafranca that the decision in AC No. 12-91 has not become final
and executory as the final disposition thereof was overtaken by the local
elections of May 1992. He reiterated his claim that at no time had he been
removed by virtue of the said decision. [8]

Petitioner filed an opposition contending, among other things, that the fact
that Zamboanga del Sur Governor Ariosa had ordered the enforcement of the
decision signified that respondent Sulongs motion for reconsideration and/or
notice of appeal had not been given due course by the Sangguniang
Panlalawigan; and that respondent Sulongs claim that he had not been
removed from office was belied by the fact that he (respondent Sulong)
brought charges against Vicente Imbing for Usurpation of Official Functions
(I.S. No. 92-35), in support of which respondent Sulong attested under oath
that Imbing had succeeded him as mayor of Lapuyan. [9]

In a separate motion, petitioner prayed that the resolution of August 1,

2001 be executed and that he be installed as mayor of Lapuyan in view of
private respondents disqualification. On August 30, 2001, the COMELECs
First Division denied petitioners motion for execution on the ground that the
disqualification of an elected candidate does not entitle the candidate who
obtained the second highest number of votes to occupy the office vacated.
 Petitioner then filed a motion for reconsideration of this order.
[10] [11]

On April 4, 2002, the COMELEC en banc issued its resolution subject of

the petition in this case, reversing the resolution, dated August 1, 2001, of its
First Division insofar as it found respondent Sulong disqualified from running
as mayor. It held:

The only issue in this case is whether or not the foregoing decision [in AC No. 12-91],
assuming it has become final and executory, constitutes a ground for the
disqualification of herein respondent-movant as a candidate in the elections [of May
14, 2001].
The records of the case reveal that the decision of the Sangguniang Panlalawigan was
promulgated on February [4], 1992 finding respondent Sulong guilty of dishonesty,
falsification of public documents, malversation. . .

In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan,
Zamboanga del Sur despite the decision of the Sangguniang dismissing him from
office. In the 1995 May elections, respondent Sulong ran and won the mayoralty
elections of Lapuyan, Zamboanga del Sur.

While it is true that one of the disqualifications from running in an elective position is
removal from office as a result of an administrative case, said provision no longer
applies if the candidate whose qualification is questioned got re-elected to another
term. In Aguinaldo vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-
election renders an administrative case moot and academic.

. . . .

Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections
would be tantamount to a condonation of the Sangguniang Panlalawigan decision
promulgated 04 February 1992 which found him guilty of dishonesty, malversation of
public funds etc[.], granting said decision has become final and executory.

Moreover, the people of LAPUYAN have already expressed their will when they cast
their votes in the recent elections as evidenced by the results which found respondent
Sulong to have won convincingly.

. . . .

WHEREFORE, premises considered, the Commission En Banc RESOLVED as it

hereby RESOLVES to reverse the First Division Resolution [dated August 1, 2001]
and DISMISS the petition for lack of merit. [12]

The COMELEC en banc also ruled that, in any event, respondent Sulong

was not entitled to occupy the office thus vacated. Hence, this petition by
Lingating.
Petitioner contends that the COMELEC en banc erred in applying the
ruling in Aguinaldo v. Commission on Elections  in holding that the reelection
[13]

of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of
condoning the misconduct for which he was ordered dismissed by the
Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v.
Commission on Elections  in which we held that an elective local executive
[14]

officer, who is removed before the expiration of the term for which he was
elected, is disqualified from being a candidate for a local elective position
under 40(b) of the Local Government Code.
We stated in Reyes:

Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a
public official could not be removed for misconduct committed during a prior term
and that his reelection operated as a condonation of the officers previous misconduct
to the extent of cutting off the right to remove him therefor. But that was because in
that case, before the petition questioning the validity of the administrative decision
removing petitioner could be decided, the term of office during which the alleged
misconduct was committed expired. Removal cannot extend beyond the term during
which the alleged misconduct was committed. If a public official is not removed
before his term of office expires, he can no longer be removed if he is thereafter
reelected [for] another term. This is the rationale for the ruling in the
two Aguinaldo cases.

The case at bar is the very opposite of those cases. Here, . . . the decision in the
administrative case, . . . was served on petitioner and it thereafter became final on
April 3, 1995, because petitioner failed to appeal to the Office of the President. He
was thus validly removed from office and, pursuant to 40(b) of the Local Government
Code, he was disqualified from running for reelection.

It is noteworthy that at the time the Aguinaldo cases were decided there was no

provision similar to 40(b) which disqualifies any person from running for any elective
position on the ground that he has been removed as a result of an administrative
case. The Local Government Code of 1991 (R.A. No. 7160) could not be given
retroactive effect.

However, Reyes cannot be applied to this case because it appears that the

1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong
guilty of dishonesty, falsification and malversation of public funds, has not until
now become final. The records of this case show that the Sangguniang
Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on
February 4, 1992, a copy of which was received by respondent Sulong on
February 17, 1992; that on February 18, 1992, he filed a motion for
reconsideration and/or notice of appeal; that on February 27, 1992, the
Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC
No. 12-91, to comment; and that the complainant in AC No. 12-91 has not
filed a comment nor has the Sangguniang Panlalawigan resolved respondents
motion. The filing of his motion for reconsideration prevented the decision of
Sangguniang Panlalawigan from becoming final.
 While R.A. No. 7160 on disciplinary actions is silent on the filing of a
motion for reconsideration, the same cannot be interpreted as a prohibition
against the filing of a motion for reconsideration. Thus, it was held  that a [15]

party in a disbarment proceeding under Rule 139-B, 12(c) can move for a
reconsideration of a resolution of the Integrated Bar of the Philippines
although Rule 139-B does not so provide:

Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration,

nothing in its text or history suggests that such motion is prohibited. It may therefore
be filed . . . . Indeed, the filing of such motion should be encouraged before [an appeal
is] resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the
agency rendering the judgment [an] opportunity to correct any error it may have
committed through a misapprehension of facts or misappreciation of evidence.

There is thus no decision finding respondent guilty to speak of. As

Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the
Sangguniang Panlalawigan simply considered the matter as having become
moot and academic because it was overtaken by the local elections of May
[11,]1992.
Neither can the succession of the then vice-mayor of Lapuyan, Vicente
Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo Tan,
to the offices of mayor and vice-mayor, respectively, be considered proof that
the decision in AC No. 12-91 had become final because it appears to have
been made pursuant to 68  of the Local Government Code, which makes
[16]

decisions in administrative cases immediately executory.

Indeed, considering the failure of the Sangguniang Panlalawigan to
resolve respondents motion, it is unfair to the electorate to be told after they
have voted for respondent Sulong that after all he is disqualified, especially
since, at the time of the elections on May 14, 2001, the decision of the
Sangguniang Panlalawigan had been rendered nearly ten years ago.
Having come to the conclusion that respondent Sulong is not disqualified
from holding the position of mayor of Lapuyan, it is unnecessary to pass upon
petitioners contention that, as the candidate who obtained the second highest
number of votes, he is entitled to be installed as mayor because the votes
cast in favor of respondent Sulong were void.
WHEREFORE, the petition for certiorari is DISMISSED and the resolution,
dated April 4, 2002, of the COMELEC en banc, dismissing petitioners petition
for disqualification, is AFFIRMED.
SO ORDERED.
G.R. No. 108072 December 12, 1995

HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the Visayas, petitioner, 
vs.
HON. MERCEDES GOZO-DADOLE, Presiding Judge, Branch XXVIII, Regional Trial Court,
Mandaue City, Mandaue City Mayor ALFREDO M. OUANO, Mandaue City Vice-Mayor
PATERNO CAÑETE and Mandaue City Sangguniang Panlungsod Member RAFAEL
MAYOL, respondents.

VITUG, J.:

The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770, 1 otherwise
known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative
investigations over local elective officials by virtue of the subsequent enactment of R.A. No.
7160, 2 otherwise known as the Local Government Code of 1991, is the pivotal issue before the Court in
this petition.

The petition seeks (a) to annul the writ of preliminary injunction, dated 21 October 1992, issued
against petitioner by respondent trial court and (b) to prohibit said court from further proceeding with
RTC Case No. MDE-14. 3

Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed the office of Juan
Hagad, now resigned, 4 who took the initiative in instituting this special civil action for certiorari and
prohibition.

The controversy stemmed from the filing of criminal and administrative complaints, on 22 July 1992,
against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang
Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors
Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the
Visayas. The respondents were charged with having violated R.A. No. 3019, as amended, 5 Articles
170 6 and 171 7 of the Revised Penal Code; and R.A. No. 6713. 8Councilors Dionson and Bercede averred
that respondent officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance
No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00
without authority from the Sangguniang Panlungsod of Mandaue City. The complaints were separately
docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative Case No. OMB-VIS-ADM-92-015.

A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by
Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against
respondent officials. The next day, petitioner ordered respondents, including Acting Mandaue City
Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-
affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede
moved for the preventive suspension of respondent officials in the separately docketed
administrative case.

Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992,
prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft
of jurisdiction to try, hear and decide the administrative case filed against them since, under Section
63 of the Local Government Code of 1991, the power to investigate and impose administrative
sanctions against said local officials, as well as to effect their preventive suspension, had now been
vested with the Office of the President.

In their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local
Government Code of 1991 could not have repealed, abrogated or otherwise modified the pertinent
provisions of the Constitution granting to the Ombudsman the power to investigate cases against all
public officials and that, in any case, the power of the Ombudsman to investigate local officials under
the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of
1991.

During the hearing on the motion for preventive suspension, the parties were directed by the Deputy
Ombudsman to file their respective memoranda.

In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local
Government Code of 1991, the Office of the President, not the Office of the Ombudsman, could
lawfully take cognizance of administrative complaints against any elective official of a province, a
highly urbanized city or an independent component city and to impose disciplinary sanctions,
including preventive suspensions, and that there was nothing in the provision of the Constitution
giving to the Office of the Ombudsman superior powers than those of the President over elective
officials of local governments.

In an Order, 9 dated 10 September 1992, the Office of the Deputy Ombudsman denied the motion to
dismiss and recommended the preventive suspension of respondent officials, except City Budget Officer
Pedro M. Guido, until the administrative case would have been finally resolved by the
Ombudsman. 10 Respondent officials were formally placed under preventive suspension by the Deputy
Ombudsman pursuant to an Order 11 of 21 September 1992.

On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary injunction and
temporary restraining order, was filed by respondent officials with the Regional Trial Court of
Mandaue City. Acting favorably on the pleas of petitioning officials, respondent Judge issued, on
even date, a restraining order directed at petitioner, enjoining him ". . . from enforcing and/or
implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015."

Petitioner moved to dismiss the petition but it was to no avail. The court a quo, on 15 October 1992,
denied the motion to dismiss and issued an Order for the issuance of a writ of preliminary injunction,
holding thusly:

So by following and applying the well-established rules of statutory construction that

endeavor should be made to harmonize the provisions of these two laws in order that
each shall be effective, it is the finding of this Court that since the investigatory power
of the Ombudsman is so general, broad and vague and gives wider discretion to
disciplining authority to impose administrative sanctions against a responsible public
official or employee while that of Section 60 of the New Local Government Code
provides for more well defined and specific grounds upon which a local elective
 official can be subjected to administrative disciplinary action, that it Could be
considered that the latter law could be an exception to the authority and
administrative power of the Ombudsman to conduct an investigation against local
elective officials and as such, the jurisdiction now to conduct administrative
investigation against local elective officials is already lodged before the offices
concerned under Section 61 of Republic Act No. 7160.

xxx xxx xxx

WHEREFORE, foregoing premises considered, Order is hereby issued:

1) Expanding the restraining order dated September 25, 1992 issued by the Court
into an Order for the issuance of a writ of preliminary injunction upon the posting of
the petitioners of the bond in the amount of Fifty thousand pesos (P50,000.00)
conditioned that the latter will pay all the costs that may be adjudged to the adverse
party and/or damages which he may sustain by reason of the injunction, if the Court
will finally adjudge that the petitioners are not entitled thereto, and

2) Denying the respondent's Motion to Dismiss dated September 28, 1992 for lack of
merit.

SO ORDERED. 12

A writ of preliminary injunction was issued on 21 October 1992. 13 A motion for reconsideration made
by petitioner was denied by the trial court.

The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of
preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent
judge be directed to desist from further proceeding with RTC Case No. MDE-14.

There is merit in the petition.

The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the
1987 Constitution, 14 thus:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions,
and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient;

while his statutory mandate to act on administrative complaints is contained in Section 19 of

R.A. No. 6770 that reads:

Sec. 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;

 3. Are inconsistent with the general course of an agency's functions, though in
accordance with law;

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

6. Are otherwise irregular, immoral or devoid of 

justification.

Section 21 of the same statute names the officials who could be subject to the disciplinary
authority of the Ombudsman, viz.:

Sec. 21. Officials 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. (Emphasis supplied)

Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the
Office of the Ombudsman correspondingly has the authority to decree preventive suspension
on any public officer or employee under investigation by it. Said section of the law provides:

Sec. 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.

Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman
over local officials must be deemed to have been removed by the subsequent enactment of the
Local Government Code of 1991 which vests the authority to investigate administrative charges,
listed under Section 60 15 thereof, on various offices. In the case specifically of complaints against
elective officials of provinces and highly urbanized cities, the Code states:

Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint

against any erring local elective officials shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the
President.
 Thus respondents insist, conformably with Section 63 of the Local Government Code,
preventive suspension can only be imposed by: ". . . the President if the respondent is an
elective official of a province, a highly urbanized or an independent component city; . . . "
under sub-paragraph (b) thereof:

(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.

In his comment, which the Court required considering that any final resolution of the case would be a
matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as
having conferred, but not on an exclusive basis, on the Office of the President (and the various
Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did
not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a
constitutional mandate. In passing, the Solicitor General has also opined that the appropriate
remedy that should have been pursued by respondent officials is a petition for certiorari before this
Court rather than their petition for prohibition filed with the Regional Trial Court.

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are
not favored, 16 and that courts must generally assume their congruent application. 17 The two laws must be
absolutely incompatible, 18 and a clear finding thereof must surface, before the inference of implied repeal
may be drawn. 19 The rule is expressed in the maxim, interpretare et concordare legibus est optimus
interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form
a uniform system of jurisprudence. 20 The fundament is that the legislature should be presumed to have
known the existing laws on the subject and not to have enacted conflicting statutes. 21 Hence, all doubts
must be resolved against any implied repeal, 22and all efforts should be exerted in order to harmonize and
give effect to all laws on the subject. 23

Certainly, Congress would not have intended to do injustice to the very reason that underlies the
creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long
tentacles of officialdom." 24

Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost parallel
with the provisions then existing under the old code. Section 61 and Section 63 of the precursor local
Government Code of 1983, 25 under the heading of "Suspension and Removal," read:

Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective
officials shall be prepared as follows:

(a) Against any elective provincial or city official, before the Minister of Local
Government.
 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 respondent is an elective 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.

The authority to conduct administrative investigation and to impose preventive suspension

over elective provincial or city officials was at that time entrusted to the Minister of Local
Government until it became concurrent with the Ombudsman upon the enactment of R.A.
No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant.
The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from
what already prevailed, the modification being only in the substitution of the Secretary (the
Minister) of Local Government by the Office of the President.

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 dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) 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.

Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when
he caused the issuance of the preventive suspension order without any hearing.

The contention is without merit. The records reveal that petitioner issued the order of preventive
suspension after the filing (a) by respondent officials of their opposition on the motion for preventive
suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of
petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a
preventive suspension can be decreed on an official under investigation after charges are brought
and even before the charges are heard. Naturally, such a preventive suspension would occur prior
to any finding of guilt or innocence. In the early case of Nera vs. Garcia, 26 reiterated in subsequent
cases,27 we have said:

In connection with the suspension of petitioner before he could file his answer to the
administrative complaint, suffice it to say that the suspension was not a punishment
or penalty for the acts of dishonesty and misconduct in office, but only as a
preventive measure. Suspension is a preliminary step in an administrative
investigation. If after such investigation, the charges are established and the person
investigated is found guilty of acts warranting his removal, then he is removed or
dismissed. This is the penalty. There is, therefore, nothing improper in suspending an
officer pending his investigation and before the charges against him are heard and
be given an opportunity to prove his innocence.

Moreover, respondent officials were, in point of fact, put on preventive suspension only after
petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier, 28 that the evidence of
guilt was strong. Petitioner gave his justification for the preventive suspension in this wise:

After a careful and honest scrutiny of the evidence submitted on record, at this stage,
it is the holding of this office that the evidence of guilt against the respondents in the
instant case is strong. There is no question that the charge against the respondents
involves dishonesty or gross misconduct which would warrant their removal from the
service and there is no gainsaying the fact that the charge for falsification of veritable
documents like city ordinances are very serious charges that affect the very
foundations of duly established representative governments. Finally, it is likewise the
holding of this office at this stage that the continued stay in office of respondents may
prejudice the judicious investigation and resolution of the instant case. 29

Finally, it does appear, as so pointed out by the Solicitor General, that respondent official's petition
for prohibition, being an application for remedy against the findings of petitioner contained in his 21
September 1992 order, should not have been entertained by the trial court. The proscription in
Section 14 of R.A. No. 6770 reads:

Sec. 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.

Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court
on matters involving orders arising from administrative disciplinary cases originating from the
Office of the Ombudsman; thus:

Sec. 27. Effectivity and Finality of Decisions. — . . .

In all administrative disciplinary cases, orders, directives, or decisions of the Office of

the Ombudsman may be appealed to the Supreme 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. (Emphasis supplied)
All told, petitioner is plainly entitled to the relief prayed for, and we must, accordingly; grant the
petition.

WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is ANNULLED and
SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED. No costs.

SO ORDERED.

OFFICE OF THE OMBUDSMAN, G.R. No. 172700

Petitioner,
CARPIO, J., Chairperson,
NACHURA,
PERALTA,
- versus - ABAD, and
MENDOZA, JJ.
 
 
ROLSON RODRIGUEZ, Promulgated:
Respondent. July 23, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 
 
DECISION
 
 
CARPIO, J.:
 
 
 
The Case
 
 
This is a petition for review[1] of the 8 May 2006 Decision[2] of the Court of
Appeals in CA-G.R. SP No. 00528 setting aside for lack of jurisdiction the 21
September 2004 Decision[3] of the Ombudsman (Visayas) in OMB-V-A-03-0511-
H.
 
 
 
The Antecedent Facts
 

On 26 August 2003, the Ombudsman in Visayas received a complaint [4] for abuse

of authority, dishonesty, oppression, misconduct in office, and neglect of duty
against Rolson Rodriguez, punong barangay in Brgy. Sto. Rosario, Binalbagan,
Negros Occidental. On 1 September 2003, the sangguniang bayan of Binalbagan,
Negros Occidental, through vice-mayor Jose G. Yulo, received a similar
complaint[5] against Rodriguez for abuse of authority, dishonesty, oppression,
misconduct in office, and neglect of duty.
 
In its 8 September 2003 notice,[6] the municipal vice-mayor required Rodriguez to
submit his answer within 15 days from receipt of the notice. On 23 September
2003, Rodriguez filed a motion to dismiss [7] the case filed in the sangguniang
bayan on the ground that the allegations in the complaint were without factual
basis and did not constitute any violation of law. In a compliance [8] dated 22
October 2003, Rodriguez alleged complainants violated the rule against forum
shopping.
 
Meanwhile, in its 10 September 2003 order, [9] the Ombudsman required Rodriguez
to file his answer. Rodriguez filed on 24 October 2003 a motion to dismiss [10]the
case filed in the Ombudsman on the grounds of litis pendentia and forum
shopping. He alleged that the sangguniang bayan had already acquired jurisdiction
over his person as early as 8 September 2003.
 
The municipal vice-mayor set the case for hearing on 3 October 2003. [11] Since
complainants had no counsel, the hearing was reset to a later date. When the case
was called again for hearing, complainants counsel manifested that complainants
would like to withdraw the administrative complaint filed in the sangguniang
bayan. On 29 October 2003, complainants filed a motion [12] to withdraw the
complaint lodged in the sangguniang bayan on the ground that they wanted to
prioritize the complaint filed in the Ombudsman. Rodriguez filed a
comment[13] praying that the complaint be dismissed on the ground of forum
shopping, not on the ground complainants stated. In their opposition,
[14]
 complainants admitted they violated the rule against forum shopping and
claimed they filed the complaint in the sangguniang bayan without the assistance
of counsel. In his 4 November 2003 Resolution, [15] the municipal vice-mayor
dismissed the case filed in the sangguniang bayan.
 
In its 29 January 2004 order,[16] the Ombudsman directed both parties to file their
respective verified position papers. Rodriguez moved for reconsideration of the
order citing the pendency of his motion to dismiss. [17] In its 11 March 2004 order,
[18]
 the Ombudsman stated that a motion to dismiss was a prohibited pleading under
Section 5 (g) Rule III of Administrative Order No. 17. The Ombudsman reiterated
its order for Rodriguez to file his position paper.
 
In his position paper, Rodriguez insisted that the sangguniang bayan still
continued to exercise jurisdiction over the complaint filed against him. He claimed
he had not received any resolution or decision dismissing the complaint filed in
the sangguniang bayan. In reply,[19] complainants maintained there was no more
complaint pending in the sangguniang bayan since the latter had granted their
motion to withdraw the complaint. In a rejoinder, [20] Rodriguez averred that
the sangguniang bayan resolution dismissing the case filed against him was not
valid because only the vice-mayor signed it.
 
The Ruling of the Ombudsman
 
In its 21 September 2004 Decision,[21] the Ombudsman found Rodriguez guilty of
dishonesty and oppression. It imposed on Rodriguez the penalty of dismissal from
the service with forfeiture of all benefits, disqualification to hold public office, and
forfeiture of civil service eligibilities. Rodriguez filed a motion for reconsideration.
[22]
 In its 12 January 2005 Order,[23] the Ombudsman denied the motion for
reconsideration. In its 8 March 2005 Order,[24] the Ombudsman directed the mayor
of Binalbagan, Negros Occidental to implement the penalty of dismissal against
Rodriguez.
 
Rodriguez filed in the Court of Appeals a petition for review with prayer for the
issuance of a temporary restraining order.
 
The Ruling of the Court of Appeals
 
In its 8 May 2006 Decision,[25] the Court of Appeals set aside for lack of
jurisdiction the Decision of the Ombudsman and directed the sangguniang
bayan to proceed with the hearing on the administrative case. The appellate court
reasoned that the sangguniang bayan had acquired primary jurisdiction over the
person of Rodriguez to the exclusion of the Ombudsman. The Court of Appeals
relied on Section 4, Rule 46 of the Rules of Court, to wit:
 
Sec. 4. Jurisdiction over person of respondent, how acquired. The court
shall acquire jurisdiction over the person of the respondent by the service
on him of its order or resolution indicating its initial action on the
petition or by his voluntary submission to such jurisdiction.
 
The appellate court noted that the sangguniang bayan served on Rodriguez a
notice, requiring the latter to file an answer, on 8 September 2003 while the
Ombudsman did so two days later or on 10 September 2003.
 
Petitioner Ombudsman contends that upon the filing of a complaint before a body
vested with jurisdiction, that body has taken cognizance of the complaint.
Petitioner cites Blacks Law Dictionary in defining what to take cognizance means
to wit, to acknowledge or exercise jurisdiction. Petitioner points out it had taken
cognizance of the complaint against Rodriguez before a similar complaint was
filed in the sangguniang bayan against the same respondent. Petitioner maintains
summons or notices do not operate to vest in the disciplining body jurisdiction over
the person of the respondent in an administrative case. Petitioner concludes that
consistent with the rule on concurrent jurisdiction, the Ombudsmans exercise of
jurisdiction should be to the exclusion of the sangguniang bayan.
 
Private respondent Rolson Rodriguez counters that when a competent body has
acquired jurisdiction over a complaint and the person of the respondent, other
bodies are excluded from exercising jurisdiction over the same complaint. He cites
Article 124 of the Implementing Rules and Regulations of Republic Act No. 7160,
[26]
which provides that an elective official may be removed from office by order of
the proper court or the disciplining authority whichever first acquires jurisdiction
to the exclusion of the other. Private respondent insists the sangguniang bayan first
acquired jurisdiction over the complaint and his person. He argues jurisdiction over
the person of a respondent in an administrative complaint is acquired by the service
of summons or other compulsory processes. Private respondent stresses
complainants violated the rule against forum shopping when they filed identical
complaints in two disciplining authorities exercising concurrent jurisdiction.
 
The Issues
 
The issues submitted for resolution are (1) whether complainants violated the rule
against forum shopping when they filed in the Ombudsman and the sangguniang
bayan identical complaints against Rodriguez; and (2) whether it was
the sangguniang bayan or the Ombudsman that first acquired jurisdiction.
 
The Courts Ruling
 
The petition has merit.
 
Paragraph 1, Section 13 of Article XI of the Constitution provides:
 

Sec. 13. The Ombudsman shall have the following powers,

functions, and duties:
 
(1) Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office,
or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient.
Section 15 of Republic Act No. 6770, otherwise known as the
Ombudsman Act of 1989, states:
 
Sec. 15. Powers, Functions, and Duties. 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. It 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 investigations of
such cases.
The primary jurisdiction of the Ombudsman to investigate any act
or omission of a public officer or employee applies only in cases
cognizable by the Sandiganbayan.  In cases cognizable by regular
courts, the Ombudsman has concurrent jurisdiction with other
investigative agencies of government.[27] Republic Act No. 8249,
otherwise known as An Act Further Defining the Jurisdiction of
the Sandiganbayan, limits the cases that are cognizable by
the Sandiganbayan to public officials occupying positions
corresponding to salary grade 27 and
higher. The Sandiganbayan has no jurisdiction over private
respondent who, as punongbarangay, is occupying a position
corresponding to salary grade 14 under Republic Act No. 6758,
otherwise known as the Compensation and Position Classification
Act of 1989.[28]
 
Under Republic Act No. 7160, otherwise known as the Local
Government Code, the sangguniang panlungsod or sangguniang
bayan has disciplinary authority over any elective barangay official,
to wit:
 
SEC. 61. Form and Filing of Administrative Complaints. A
verified complaint against any erring elective official shall
be prepared as follows:
 
xxxx
 
 
 
(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.
 
Clearly, the Ombudsman has concurrent jurisdiction with
the sangguniang bayan over administrative cases against
elective barangay officials occupying positions below salary grade
27, such as private respondent in this case. 
 
The facts in the present case are analogous to those in Laxina, Sr. v. Ombudsman,
[29]
 which likewise involved identical administrative complaints filed in both the
Ombudsman and the sangguniang panlungsod against a punong barangay for
grave misconduct. The Court held therein that the rule against forum shopping
applied only to judicial cases or proceedings, not to administrative cases. [30] Thus,
even if complainants filed in the Ombudsman and the sangguniang
bayan identical complaints against private respondent, they did not violate the
rule against forum shopping because their complaint was in the nature of an
administrative case.
 
In administrative cases involving the concurrent jurisdiction of two or more
disciplining authorities, the body in which the complaint is filed first, and which
opts to take cognizance of the case, acquires jurisdiction to the exclusion of other
tribunals exercising concurrent jurisdiction.[31] In this case, since the complaint was
filed first in the Ombudsman, and the Ombudsman opted to assume jurisdiction
over the complaint, the Ombudsmans exercise of jurisdiction is to the exclusion of
the sangguniang bayan exercising concurrent jurisdiction.
 
 
It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction, once acquired,
is not lost upon the instance of the parties but continues until the case is
terminated.[32] When herein complainants first filed the complaint in the
Ombudsman, jurisdiction was already vested on the latter. Jurisdiction could no
longer be transferred to the sangguniang bayan by virtue of a subsequent
complaint filed by the same complainants.
 
As a final note, under Section 60 of the Local Government Code, the sangguniang
bayan has no power to remove an elective barangay official. Apart from the
Ombudsman, only a proper court may do so.[33] Unlike the sangguniang bayan, the
powers of the Ombudsman are not merely recommendatory. The Ombudsman is
clothed with authority to directly remove[34] an erring public official other than
members of Congress and the Judiciary who may be removed only by
impeachment.[35]
 
WHEREFORE, we GRANT the petition. We SET ASIDE the 8 May 2006
Decision of the Court of Appeals in CA-G.R. SP No. 00528. We AFFIRM the 21
September 2004 Decision of the Ombudsman (Visayas) in OMB-V-A-03-0511-H.
 
No pronouncement as to costs.
 
SO ORDERED.
 
 

RAMON Y. TALAGA, JR.,   G.R. No. 169888

City Mayor, Lucena City,    
Petitioner,   Present:
     
    CARPIO,* J.,
    AUSTRIA-MARTINEZ,
- versus -   Acting Chairperson,
    CORONA,*
    AZCUNA,* and
HON. SANDIGANBAYAN,   NACHURA, JJ.
th
4  Division, and PEOPLE    
OF THE PHILIPPINES,   Promulgated:
Respondents.   November 11, 2008
x----------------------------------------------------------x
 
DECISION
  
AUSTRIA-MARTINEZ, J.:
 
Herein special civil action for certiorari under Rule 65 of the Rules of Court seeks the
nullification of the Resolution[1] dated October 3, 2005 of the Sandiganbayan issued in
Criminal Case No. 27738 where Mayor Ramon Y. Talaga, Jr. (petitioner) and the City
Councilors are prosecuted for violation of the Anti-Graft and Corrupt Practices Act:
Republic Act (R.A.) No. 3019, as amended.
 
The assailed Resolution ordered petitioner's preventive suspension for ninety (90)
days in accordance with Section 13 of R.A. No. 3019.
The facts of the case:
Criminal and administrative complaints were filed by Elan Recreation, Inc. (ELAN)
against petitioner with the Office of the Ombudsman. The complaints alleged that
petitioner, in his capacity as mayor of the City of Lucena, had unlawfully granted favors to
a third party with respect to the operation of bingo games in the city, to the damage and
prejudice of the complainants.[2]
 
On May 23, 2003, the Office of the Deputy Ombudsman for Luzon recommended the
dismissal of both the criminal and administrative complaints.[3] However, the Ombudsman
approved the dismissal of the administrative case but denied the dismissal of the criminal
case.
 
As a result, the Office of the Special Prosecutor recommended the filing of three criminal
charges for violation of R.A. No. 3019:
 
1.              Criminal Case No. 27737. For causing undue injury to complainants
when petitioner as mayor of Lucena City vetoed an ordinance granting a
local franchise to the complainants to operate bingo games in the city;
 
2.              Criminal Case No. 27738. For giving unwarranted benefits to Jose
Sy Bang by approving an ordinance granting to Sy Bang a local
franchise to operate bingo games in the city; and
 
3.              Criminal Case No. 27739. For causing undue injury to complainants
when petitioner closed down their bingo operations temporarily. (Emphasis
supplied)
 
Petitioner filed a motion for reconsideration/reinvestigation[4] questioning the finding of the
Special Prosecutor. The Motion for Reconsideration was denied by the Office of the
Ombudsman.
 
On May 17, 2003, petitioner filed a motion to quash the three informations.[5] On February
9, 2004, the Sandinganbayan issued a Resolution[6] quashing the Informations in Criminal
Cases No. 27737 and 27739. However, it sustained the Information in Criminal Case No.
27738. In the said Resolution, respondent referred Criminal Case No. 27738 back to the
Office of the Ombudsman and ordered the latter to conduct further preliminary
investigation to determine the possible liability of the members of the City Council which
passed Ordinance No. 1963 in said case.[7]
 
An Amended Information[8] and Second Amended Information[9] were filed by the
prosecution in the Sandiganbayan. The first included the members of the City Council of
Lucena City (City Councilors), as additional accused, while the Second Amended
Information (Information) alleged conspiracy between petitioner and the City
Councilors. Over the opposition[10] of petitioner, the Sandiganbayan admitted both
amended informations.[11]
 
On February 21, 2005, petitioner and the City Councilors filed a Motion to Quash [12] the
Information on the ground that there is no valid information on which
the Sandiganbayanhas a finding of probable cause because the second amended
informations allegations do not constitute an offense, there being no violation of
Presidential Decree (P.D.) No. 771 as it has no applicability to bingo operations and P.D.
No. 771 has been superceded by P.D. No. 1869 and R.A. No
7160. The Sandiganbayna denied[13] the petition and it likewise denied petitioners Motion
for Reconsideration.[14]
 
On June 29, 2005, petitioner and the City Councilors were arraigned in Criminal Case No.
27738 and all pleaded not guilty.
 
On July 5, 2005, the prosecution filed a Motion to Suspend the Accused
 
Pendente Lite.[15] Petitioner and his co-accused filed an Opposition[16] to the
motion. Thereafter, respondent ordered the suspension of the petitioner and his co-accused,
to wit:
 
xxxx
 
WHEREFORE, the prosecution's motion for suspension pendente lite is hereby
GRANTED, and accused Ramon Y. Talaga, Jr., Godofredo V. Faller, Danilo R.
Zaballero, Salome S. Dato, Simon N. Aldovino, Wilfredo F. Asilo, and Aurora
C. Garcia are hereby directed to CEASE and DESIST from further performing
and/or exercising the functions, duties, and privileges of their positions as City
Mayor, and City Councilors of Lucena City, respectively, or any other positions
they may now or hereafter be holding effective immediately upon receipt hereof
and continuing for a total period of ninety (90) days.[17]
 
Petitioner then filed the present petition for certiorari with an urgent application for the
issuance of a temporary restraining order and/or preliminary injunction under Rule 65 of
the Rules of Court. The Court issued a Temporary Restraining Order on November 9,
2005 enjoining public respondents from implementing the suspension of petitioner.[18]
 
Assailing his suspension, petitioner alleges:
 
I
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IN ABDICATION OF ITS
CONSTITUTIONAL DUTY TO RESOLVE A JUDICIAL
CONTROVERSY, IT IS MINISTERIAL DUTY TO ISSUE A
PREVENTIVE SUSPENSION ORDER AGAINST THE PETITIONER
AND THERE ARE NO IFS AND BUTS ABOUT IT.
 
II
ASSUMING THAT THE ISSUANCE OF THE PREVENTIVE
SUSPENSION IS MANDATORY, THE HONORABLE
SANDIGANBAYAN COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO EXCESS OR LACK OF
JURISDICTION WHEN IT ORDERED THE SUSPENSION OF THE
PETITIONER AS SECTION 13 OF REPUBLIC ACT NO. 3019,
WHICH FORMS THE BASIS OF THE ORDER OF SUSPENSION, IS
 UNCONSTITUTIONAL ON THE GROUND THAT IT IMPINGES
UPON THE EXCLUSIVE PREROGATIVE OF THE JUDICIARY.
 
 
III
THE HONORABLE SANDIGANBAYAN COMMITED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT ORDERED THE SUSPENSION OF
HEREIN PETITIONER DESPITE THE FACT THAT THERE EXISTS
NO VALID INFORMATION UNDER WHICH PETITIONER STANDS
CHARGED.[19]
The petition is devoid of merit.
Petitioner argues that respondent committed grave abuse of discretion when in imposing
the sanction of suspension, it only relied on the mandatory provision of Section 13
insensate to the weight and cogency of the peculiar circumstances of the case before it.
[20]
 Moreover, petitioner argues that the bare reliance of respondent on Section 13 without
calibrating the weight of diverse and dueling evidence pertinent to the issue of
appropriateness of ordering his suspension is a clear abdication of respondent's
constitutional duty to exercise its judicial function. [21] In addition, petitioner contends that
respondent should have looked into the environmental circumstances of the case and thus it
was unwarranted to apply the presumption in Bolastig v. Sandiganbayan[22] that unless the
accused is suspended, he may frustrate or commit further acts of malfeasance or do both.
 
Petitioner asks this Court to first look into the circumstances of the case and thereafter
determine the propriety of issuing a suspension order. The Court could not be more
explicit than its ruling in Segovia v. Sandiganbayan,[23] thus:
 
Petitioners would now have this Court strike down these resolutions because
supposedly rendered in excess of jurisdiction or with grave abuse of discretion.
The Court will not do so. In no sense may the challenged resolutions be
stigmatized as so clearly capricious, whimsical, oppressive, egregiously
erroneous or wanting in logic as to call for invalidation by the extraordinary writ
of certiorari. On the contrary, in promulgating those resolutions, the
Sandiganbayan did but adhere to the clear command of the law and what it calls
a mass of jurisprudence emanating from this Court, sustaining its authority to
decree suspension of public officials and employees indicted before it. Indeed
that the theory of discretionary suspension should still be advocated at this
late date, despite the mass of jurisprudence relevant to the issue, is little
 short of amazing, bordering on contumacious disregard of the solemn
magisterial pronouncements of the Highest Court of the land.[24]
 
xxxx
 
While petitioners concede that this Court has almost consistently
ruled that the preventive suspension contemplated in Section 13 of RA
3019 is mandatory in character, they nonetheless urge the Court to
consider their case an exception because of the peculiar circumstances
thereof. They assert that the evils sought to be avoided by separating a public
official from the scene of his alleged misfeasance while the same is being
investigated -- e.g., to preclude the abuse of the prerogative of (his) office, such
as through intimidation of witnesses,or the tampering with documentary
evidence -- will not occur in the present situation where:
 
1. The Project has been canceled.
2. (Their) ** official duties no longer pertain, in any manner, to the
prequalification of contractors dealing with NPC. Neither are they now
involved in any bidding for or awarding of contracts, ** it (being)
emphasized (in this connection) that they were merely designated as ad
hoc members of the Committee without additional compensation for their
additional duties.
3. All the relevant documentary evidence had been either submitted to the
Ombudsman or to the Honorable Sandiganbayan.
They conclude that their preventive suspension at this point would
actually be purposeless, as there is no more need for precautionary measures
against their abuse of the prerogatives of their office.
The arguments are not new. They have been advanced and rejected
in earlier cases. They will again be so rejected in this case.
 
The Courts pronouncements in Bolastig v. Sandiganbayan, are germane:
 
x x x The fact is that the possibility that the accused would intimidate
witnesses or otherwise hamper his prosecution is just one of the grounds for
preventive suspension. The other one is, to prevent the accused from
committing further acts of malfeasance while in office.[25] (Emphasis supplied)
 
Ineluctably, the theory of petitioner that environmental circumstances of the case should
first be explored has no leg to stand on.
 
Section 13, R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, provides:
 
 Suspension and loss of benefits. - Any public officer against whom any criminal
prosecution under a valid information under this Act or under the
provisions of the Revised Penal Code on bribery 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 salaries and benefits which he failed to
receive during suspension, unless in the meantime administrative proceedings
have been filed against him. (Emphasis supplied)
In Beroa v. Sandiganbayan,[26] the Court explicitly ruled:
 
Section 13 is so clear and explicit that there is hardly room for any
extended court rationalization of the law. Section 13 unequivocally mandates
the suspension of a public official from office pending a criminal prosecution
under R.A. 3019 or Title 7, Book II of the Revised Penal Code or for any
offense involving public funds or property or fraud on government. This Court
has repeatedly held that such preventive suspension is mandatory, and there are
no ifs and buts about it.
 
As early as Luciano v. Mariano,[27] the Court has set out the guidelines to be
followed by the lower courts in the exercise of the power of suspension, to wit:
xxxx
 
(c) By way of broad guidelines for the lower courts in the exercise of the
power of suspension from office of public officers charged under a valid
information under the provisions of Republic Act No. 3019 or under the
provisions of the Revised Penal Code on bribery, pursuant to section 13 of said
Act, it may be briefly stated that upon the filing of such information, the trial
court should issue an order with proper notice requiring the accused officer to
show cause at a specific date of hearing why he should not be ordered
suspended from office pursuant to the cited mandatory provisions of the
Act. Where either the prosecution seasonably files a motion for an order of
suspension or the accused in turn files a motion to quash the information
or challenges the validity thereof, such show-cause order of the trial court
would no longer be necessary. What is indispensable is that the trial court
duly hear the parties at a hearing held for determining the validity of the
information, and thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold the validity of the
information or withhold such suspension in the contrary case.
 
(d) No specific rules need be laid down for such pre-suspension hearing.
Suffice it to state that the accused should be given a fair and adequate
 opportunity to challenge the validity of the criminal proceedings against him,
e.g., that he has not been afforded the right of due preliminary investigation, the
act for which he stands charged do not constitute a violation of the provisions of
Republic Act No. 3019 or of bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under Section 13 of
the Act, or he may present a motion to quash the information on any of the
grounds provided in the Rule 117 of the Rules of Court. The mandatory
suspension decreed by the act upon determination of the pendency in court or
criminal prosecution for violation of the Anti-Graft Act or for bribery under a
valid information requires at the same time that the hearing be expeditious, and
not unduly protracted such as to thwart the prompt suspension envisioned by the
Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion
not to be indubitable, then it shall be called upon to issue the suspension order
upon its upholding the validity of the information and setting the same for trial
on the merits.[28] (Emphasis and underscoring supplied)
 
Stated differently, the purpose of the law in requiring a pre-suspension hearing is to
determine the validity of the information so that the court can have a basis to either suspend
the accused and proceed with the trial on the merits of the case, or withhold the suspension
and dismiss the case, or correct any part of the proceedings that impairs its validity. That
hearing is similar to a challenge to the validity of the information by way of a motion to
quash.[29] In this case, respondent had determined the validity of the Information when
petitioner filed his Motion to Quash. The hearings or proceedings held thereon, in effect,
constituted a pre-suspension hearing. Respondent has followed the dictates of the law.
 
This brings the Court to petitioners third assigned error that there is no valid
Information under which petitioner stands charged.
 
In effect, petitioner is stating once again that the allegations in the Information do
not constitute an offense. Petitioner is holding on to a thin straw in claiming that
the Information is fatally defective since it failed to allege that petitioner by enacting and
approving Ordinance No. 1963 had caused injury to any party, whether the government or
private party, an essential element in the crime charged.
 
The Information reads:
 
That on or about June 5, 2000, or sometime prior or subsequent thereto,
in Lucena City, Philippines and within the jurisdiction of this Honorable Court,
 the above-named accused RAMON TALAGA , JR., being the City Mayor of
Lucena, Quezon and GODOFREDO V. FALLER, VICTOR U. PAULO,
DANILO R. ZABALLERO, SALOME S. DATO, SIMON N. ALDOVINO,
WILFREDO F. ASILO, PHILIP M. CASTILLO, AURORA C. GARCIA,
ROMANO FRANCO C. TALAGA, being members of the City Council of
Lucena City, while in the performance of their official and/or administrative
functions, committing the offense in relation to their office, did then and there
willfully, unlawfully, and criminally, with evident bad faith and/or manifest
partiality, conspiring, confederating and mutually helping such other, give
unwarranted benefit to Jose Sy Bang of Lucena City, by then and there, in
conspiracy with each other, by enacting and approving Ordinance No.
1963, series of 2000 dated June 5, 2000 granting unto the said Jose Sy Bang
a local franchise to operate a bingo business in Lucena City in violation of
Presidential decree No. 771. (Emphasis supplied)
 
Section 3(e) of R.A. No. 3019, under which petitioner is charged, provides:
 
Section 3. Corrupt practices of public officers.- In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:
 
xxxx
 
(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees
charged with the grant of licenses or permits or other concessions. (Emphasis
and underscoring supplied)
Contrary to the argument of petitioner, the law does not require that the information must
allege that the acts in question caused injury to any party, whether the government or
private party. The presence of the word or clearly shows that there are two acts which can
be prosecuted under Section 3: First, causing any undue injury to any party, including the
government, and, Second, giving any private party any unwarranted benefits, advantages
or preference. Moreover, in Quibal v. Sandiganbayan,[30] the Court ruled that violation of
Section 3 (e) of R.A. No. 3019 requires proof of the following facts:
 
xxxx
 1.              His action caused undue injury to the Government or any private
party, or gave any party any unwarranted benefit, advantage or
preference to such parties.[31]
 
Section 9, Rule 110, Rules of Court provides the guideline for the determination of the
validity or sufficiency of allegations in an information, to wit:
 
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. (Emphasis supplied)
 
The test is whether the crime is described in intelligible terms with such particularity as to
appraise 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.[32]
 
Based on the foregoing test, the Information sufficiently apprises petitioner of the
charges against him. The Information charged the petitioner of evident bad faith and
manifest partiality when as Mayor of Lucena City, petitioner, in conspiracy with the City
Council, gave unwarranted benefits to Jose Sy Bang. Moreover, it states the specific act
which constituted the giving of unwarranted benefits, namely, granting unto the said Jose
Sy Bang a local franchise to operate a bingo business in Lucena City in violation of
existing laws. These allegations are clear enough for a layman to understand.
 
Finally, petitioners second assigned error deserves scant
consideration. The validity of Section 13, R.A. No.
3019 may no longer be put at issue, the same having beenrepeatedly upheld by this C
ourt.[33] Basic is the rule that every law has in its favor the presumption of 
constitutionality, and to justify its nullification, there must be a clear and unequivocal
breach of the Constitution, and not one that is doubtful, speculative or
argumentative.[34]
 
The Anti-Graft and Corrupt Practices Act implicitly recognizes that the
power of preventive suspension lies in the court in which the criminal charge is
filed; once a case is filed in court, all other acts connected with the discharge of
court functions - including preventive suspension should be acknowledged as
within the competence of the court that has taken cognizance thereof, no violation
of the doctrine of separation of powers being perceivable in that acknowledgement.
[35]
 As earlier mentioned, the court must first determine the validity of the
information through a pre-suspension hearing. But once a proper determination of
the validity of the information has been made, it becomes the ministerial duty of
the court to forthwith issue the order of preventive suspension.[36]
WHEREFORE, the instant petition is DISMISSED, there being no showing that
the Sandiganbayan gravely abused its discretion in issuing its Resolution of October 3,
2005, preventively suspending the petitioner for ninety (90) days. The Temporary
Restraining Order dated November 9, 2005 is lifted.
 
SO ORDERED.