Republic of the Philippines

SUPREME COURT
Manila
SECOND DVSON
G.R. No. L-48639 March 16, 1987
ELISEO ALINSUGAY, PURITA VILLAFLOR, PAZ GANDIONGCO and CELSO
REMO, petitioners,
vs.
COURT OF APPEALS, RENE ESPINA, OSMUNDO RAMA, PABLO GARCIA, REYNALDO
MENDIOLA, VALERIANO CARILLO, THE PROVINCIAL TREASURER OF CEBU AND THE
PROVINCIAL AUDITOR OF CEBU,respondents.
Raul H. Sesbreno for petitioners.
Pablo Garcia for private respondent Espina.
Rolando Alvez for respondent Rama.
Justino Hermosisima for respondent Province of Cebu.

ALAMPAY, J.:
Petitioners Eliseo Alinsugay, Purita Villaflor, Paz Gandiongco and Celso Remo were appointed
laborers in various offices of the provincial government of Cebu. After the then governor, Rene
Espina, had signed their appointments, the same were submitted to the local office of the Civil
Service Commission for attestation. Thereafter, the Cebu provincial auditor advised the
provincial treasurer that the appointments of the four petitioners and forty-four others whose
positions belonged to the unclassified civil service, should be approved by the provincial board
pursuant to Section 2081 of the Administrative Code, as amended by Republic Act No. 528,
otherwise, their salaries would not be allowed in audit (Exh. 7).
The provincial treasurer then indorsed the provincial auditor's advice to the governor. He also
sent a letter to the provincial board requesting "approval or disapproval" of the appointments of
the forty-eight laborers (Exhs. RR & 8).
Said letter was one of the matters discussed in the provincial board's regular session. The
minutes of that session reveal that the provincial vice-governor and the two present board
members expressed the opinion that they were for the approval of the appointments while the
governor stated that he wanted to "abstain" (Exhs. UU & VV).
Subsequently, the governor received a communication from the Civil Service Commission
advising him that all appointments in the unclassified or non-competitive positions in the
provincial service including that of the provincial board secretary, must be approved by the
provincial board to be valid and effective. The governor was therefore constrained to submit the
appointments to the provincial board (Tsn., September 28, 1972, p. 16). However, the action on
the appointments was delayed because the provincial board did not meet as the governor was
more concerned with the coming local elections (Tsn., supra, p. 21).
After the elections, the governor decided to submit the appointments of the forty-eight laborers
to the new provincial board. Some of the appointments were approved but others, including
those of the petitioners, were disapproved (Exhs. 10 to 13-A). Petitioners sought the governor's
reconsideration of the provincial board's resolution but the same was denied. (Exh. 5).
Alinsugay and his co-petitioners herein then filed a petition for mandamus and damages against
the governor, the vice-governor, the members of the provincial board, the provincial treasurer
and the provincial auditor. They prayed that the respondents be ordered to "continue all
petitioners in their employment," to include them in the provincial plantilla or any supplemental
budget, and to appropriate the necessary funds to cover all the salaries due them. They also
prayed that the members of the provincial board be ordered to pay jointly and severally each of
the petitioner P5,000 as moral damages and P2,000 as attorney's fees plus exemplary, actual
and consequential damages (Record in Civil Case No. R-11016, pp. 4 & 5).
n its decision, the Court of First nstance of Cebu dismissed the petition for lack of merit. t ruled
that, to be complete and valid, the appointments should have been made in accordance with
Section 2081 of the Revised Administrative Code which provides that appointments in the
unclassified civil service should be submitted to and approved by the provincial board. t also
held that the approval of the provincial budget and plantilla by the provincial board did not mean
the approval of the appointments; that the appointments were not completed through their
attestation by the Civil Service Commission; that the provincial board's disapproval of their
appointments was lawful; and that mere acquisition of a civil service eligibility by the petitioners
did not make their status permanent (CF Decision, pp. 44-49; Record, pp. 624-629).
Petitioners appealed to the Court of Appeals which affirmed the lower court's decision. Their
motion for reconsideration having been denied, petitioners filed the instant petition for review on
certiorari. They submit to this court the issues of: (a) whether or not they could still be dismissed
as laborers notwithstanding the approval of their appointments by the Civil Service Commission
and their having collected salaries under audited payrolls, and (b) whether or not private
respondents are liable for moral damages for the alleged illegal dismissal of the petitioners
(Petition, pp. 4-5; Rollo, pp. 16-17).
We gave due course to the petition. Subsequently, the petitioners filed an urgent ex-parte
motion praying for the consolidation of this case with G.R. No. L-47472, 'alentino Taboy et al.
vs. Court of Appeals, et al. on the ground that "the facts involved, issues raised and laws
applicable in the instant case are the same or similar" to those in G.R. No. L-47472 (Rollo, p.
113). The motion for consolidation was granted in the resolution of September 24, 1979 (Rollo,
p. 121).
Notwithstanding that resolution, on July 24, 1981, a decision was promulgated in G.R. No. L-
47472 (105 SCRA 758). n said case and in affirming the Court of Appeals' decision, this Court
ruled that "it matters not that the appointments of the petitioners had been attested by the
Commissioner of Civil Service and that they had served for several years because the
appointments having been made without the approval of the Provincial Board of Cebu, they
were not valid appointments" (idem, on page 761).
There is no compelling reason to depart from that ruling most especially because the aforecited
case and this case arose from the same factual milieu. We should also add that the private
respondents, who, as members of the Cebu provincial board, disapproved the petitioners'
appointments, may not be held liable for such act. As correctly observed by the lower court, by
force of logic, the power and authority conferred by law on a body to approve appointments,
carries with it the corresponding power to disapprove. n the absence of proof of malice on the
part of private respondents, they cannot be held liable for their official act.
We also share the view of the Court of Appeals that there is no reason to perpetuate or continue
the mistake, if there was, in the payment of salaries of the petitioners (CA Decision, p. 12; Rollo,
p. 46), considering that petitioners do not have a legal right over their positions.
WHEREFORE, the decision of the Court of Appeals is hereby affirmed. No costs.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DVSON
G.R. No. L-46096 JuIy 30, 1979
EUFEMIO T. CORREA, petitioner,
vs.
COURT OF FIRST INSTANCE OF BULACAN (BRANCH 11), CITY SHERIFF OF QUEZON
CITY, MUNICIPALITY OF NORZAGARAY, BULACAN, HON. ARMANDO ENRIQUEZ, as the
Incumbent Mayor of Norzagaray, BuIacan, CANDIDO P. CRUZ, ISABELO SAPLALA,
TOMAS PALAD, ANTONIO SILVERIO, MELANIO ESTEBAN, ELIGIO PUNZAL, CELEDONIO
PRINCIPE, ANTONIO ANCHETA, and JUANITO SARMIENTO, respondents.
agtanggol C. Gunigundo for petitioner.
Ponciano G. Hernandez for private respondents.

ANTONIO, J.:1wph1.t
Petition for certiorari, prohibition and declaratory relief assailing the Order dated April 22, 1977
of respondent Court of First nstance of Bulacan, Branch , denying petitioner's Motion to
Quash Writ of Execution issued in Civil Case No. 3621- M. The following are the relevant facts:
On December 13, 1968, respondent Court rendered judg- ment in Civil Case No. 3621-M in
favor of therein plaintiffs (private respondents herein) and adversely against therein defendants
Eufemio T. Correa (petitioner herein) and Virgilio Sarmiento. The pertinent portions of the
decision read as follows: t.hqw
This Court finds that defendants Eufemio T. Correa and Virgilio Sarmiento,
municipal mayor and municipal treasurer of Norzagaray, Bulacan respectively,
should be ordered personally to pay the salaries which the plaintiffs failed to
receive by reason of their illegal removal from office until they are actually
reinstated.
xxx xxx xxx
WHEREFORE, judgment is hereby rendered:
1. Permanently enjoining the defendants from enforcing and/or implementing the
Administrative Order No. 1, Series of 1968;
2. Declaring the termination of the services of the plaintiffs illegal and of no legal
effect;
3. Ordering the defendant Eufemio T. Correa to reinstate the plaintiffs to their
former position as policemen in the Police Force of Norzagaray, Bulacan;
4. Ordering the defendants Eufemio T. Correa and Virgilio Sarmiento to pay,
jointly and severally to the plaintiff Juanito Sarmiento his salary for the period
beginning January 15, 1968, plaintiff Melanio Esteban his said for the period
beginning February 1, 1968; and plaintiffs Candido Cruz, sabelo Saplala, Tomas
Palad; Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe
their salaries for the period beginning January 23, 1968, until they are actually
reinstated to their former positions;
5. Ordering defendant Eufemio T. Correa and Virgilio Sarmiento to pay, jointly
and severally, the costs of this suit.
SO ORDERED.
The aforesaid decision was affirmed by the Court of Appeals on March 22, 1976, and the motion
for reconsideration of the Appellate Court's decision was denied on May 11, 1976. On August
24, 1976, the decision of the Court of Appeals became final and executory.
1

t is in connection with the efforts of the petitioner to quash the writ of execution issued to
enforce the aforestated final judgment that the present proceedings arose. Thus, on March 8,
1977, petitioner filed a Motion to Quash the Writ of Execution and to Direct Execution to the
Municipality of Norzagaray, Bulacan, alleging that at the time the writ was served on him, he
was no longer mayor of Norzagaray, Bulacan. Petitioner invoked the principle that when
judgment is rendered against an officer of the municipal corporation who is sued in his official
capacity for the payment of back salaries of officers illegally removed, the judgment is binding
upon the corporation, whether or not the same is included as party to the action.
2

On April 22, 1977, respondent Court issued the Order denying the Motion to Quash Writ of
Execution. Petitioner thus came to this Court, maintaining that he could no longer be required to
pay the back salaries of the private respondents because payment on his part presupposes his
continuance in office, which is not the case. He contends that it is the Municipality of
Norzagaray that is liable for said payment, invoking Aguador v. Enerio.
3
andSison v.
Pajo
4
Further, petitioner alleges that the fact that he is no longer municipal mayor of
Norzagaray, constitutes a substantial change in the situation of the parties which makes the
issuance of the writ of execution inequitable.
Petitioner prays, among others, that judgment be rendered declaring that the payment of back
salaries of private respondents should be made by the incumbent mayor and by the municipality
of Norzagaray, Bulacan, and that petitioner is no longer liable for the payment thereof; and
annulling the Order dated April 22, 1977 of respondent court denying the motion to quash the
writ of execution.
On May 24, 1977, this Court required petitioner to implead the Municipality of Norzagaray,
Bulacan as party respondent and on June 25, 1977, petitioner filed an amended petition
impleading the Municipality of Norzagaray and Amando Enriquez, the incumbent municipal
mayor.
n his amended petition, petitioner alleges that the writ of execution is already being enforced
against the personal properties of petitioner; that such enforcement during the pendency of the
instant petition would probably work injustice to petitioner; and that petitioner stands to suffer
great and irreparable injury if enforcement of the writ is not temporarily restrained. Petitioner,
therefore, prays that the execution be stayed or a temporary restraining order be issued pending
resolution of the instant proceedings.
On August 1, 1977, private respondents filed their Comment maintaining that respondent court
acted correctly and committed no abuse of discretion when it denied petitioner's motion to
quash the writ of execution, (1) it being the ministerial duty of the trial court to issue a writ for the
enforcement of a final and executory judgment; and (2) since the personal liability of the
petitioner and his co-defendant to pay the back salaries of the private respondents as mandated
in the decision sought to be executed cannot be shifted or transferred to the municipality of
Norzagaray, Bulacan, for to do so would be to vary the terms of a final judgment. On August 12,
1977, this Court resolved to consider the Comment of respondents as answer to the petition and
required the parties to file their respective memoranda, and thereafter the case was submitted
for decision.
The issue is whether or not respondent Court in denying the Motion to Quash the Writ of
Execution acted with grave abuse of discretion or with lack or excess of jurisdiction.
t cannot be denied that both the judgments of the Court of First nstance of Bulacan and of the
Court of Appeals categorically state that the liability of herein petitioner is personal. Thus,
according to the trial court, "Eufemio T. Correa and Virgilio Sarmiento, municipal mayor and
municipal treasurer of Norzagaray, Bulacan, respectively, should be ordered personally to pay
the salaries which the plaintiffs failed to receive by reason of their illegal removal from office
until they are actually reinstated." (Emphasis supplied).
n affirming the decision of the trial court, the Court of Appeals

ruled that "The defendants

are personally liable jointly and severally because they acted without justifiable cause
(Nemenzo vs. Sabillano, Sept. 7, 1968, 25 SCRA 1)."
6

The jurisprudence relied upon by the petitioner in his effort to shift the responsibility to the
Municipality of Norzagaray appears inapplicable. n Aguador v. Enerio, supra, cited by
petitioner, the municipal mayor and the members of the Municipal Council of Oroquieta were
specifically ordered "to appropriate necessary amounts to pay the salary differentials for the
petitioners and also for the payment of their entire salaries from month to month, subject
naturally to the availability of funds after all statutory and subsisting contractual obligations shall
have been properly covered by adequate appropriations. " The issue raised was whether or not,
after the municipal mayor, members of the municipal council and the municipal treasurer were
expressly made parties in the mandamus case and in the contempt proceedings, it was
necessary to include the municipality as a party, to make the latter liable. This issue was
resolved in the negative by this Court. n the case of Sison v. Pajo, supra, the trial court directed
the Acting Municipal Mayor and Acting Chief of Police of Bamban, Tarlac to reinstate Bonifacio
Lacanlale as Acting Chief of Police, effective June 30, 1957 "with the incident of payment of
back salaries by the Municipality of Bamban." The issue was whether or not the municipality of
Bamban could be ordered to pay the back salaries of the Chief of Police, it appearing that said
municipality was not impleaded in the case. This Court ruled that the fact that the Municipality of
Bamban, Tarlac was not by name impleaded in the case of reinstatement and back salaries
does not affect the employee's right to the payment of back salaries, considering that the
officers required by law to represent the municipality in an suits were made parties in their
official capacity, hence the case was heard and decided as if the municipality had been made a
party. n both eases the judgment of the Court specifically directed the municipality to pay the
back salaries.
Here, the judgment of the trial court, which was affirmed by the Court of Appeals, found
petitioners Eufemio T. Correa and Virgilio Sarmiento personally liable for the payment of the
salaries which the dismissed policemen failed to receive because of their illegal removal from
office, and ordered them "to pay jointly and severally to the plaintiff Juanito Sarmiento his salary
for the period beginning January 15, 1968; plaintiff Melanio Esteban his salary for the period
beginning February 1, 1968; and plaintiffs Candido Cruz, sabelo Saplala, Tomas Palad,
Antonio Ancheta, Antonio Silverio, Eligio Punzal and Celedonio Principe their salaries for the
period beginning January 23, 1968, until they are actually reinstated to their former positions."
n emenzo vs. Sabillano,
7
the Court ruled that appellant Municipal Mayor Bernabe Sabillano
was "correctly adjudged liable" for the payment of the back salaries of appellee Police Corporal
Joaquin P. Nemenzo because his act of dismissing appellee "without previous administrative
investigation and without justifiable cause ... is clearly an injury to appellee's rights. Appellant
cannot hide under the mantle of his official capacity and pass the liability to the municipality of
which he was mayor. There are altogether too many cases of this nature, wherein local elective
officials, upon assumption of office, wield their new-found power indiscriminately by replacing
employees with their own proteges, regardless of the laws and regulations governing the civil
service. Victory at the polls should not be taken as authority for the commission of such illegal
acts."
n the discharge of govermental functions, "municipal corporations are responsible for the acts
of its officers, except if and when and only to the extent that , they have acted by authority of the
law, and in comformity with the requirements thereof."
8

A Public officer who commits a tort or other wrongful act, done in excess or beyond the scope of
his duty, is not protected by his office and is personally liable therefor lie any private
individual.
9
This principle of personal liability has been applied to cases where a public officer
removes another officer or discharges an employee wrongfully, the reported cases saying that
by reason of non-compliance with the requirements of law in respect to removal from office, the
officials were acting outside their official authority."
10

Respondent Court, therefore, did not commit grave abuse of discretion in denying petitioner's
motion to quash writ of execution. The writ was strictly in accordance with the terms of the
judgment.
WHEREFORE, the instant petition is hereby DSMSSED. Costs against petitioner.
arredo, (Chairman), Aquino, Concepcion, Jr., and De Castro, JJ., concur.1wph1.t
Santos and Abad Santos, JJ., are on leave.

THRD DVSON
G.R. No. 140128. June 6, 2001]
ArnoId P. MoIIaneda, petitioner, vs. Leonida C. Umacob, respondent.
D E C I S I O N
SANDOVAL-GUTIERREZ, J.:
Before us is a petition for review on certiorari of the (a) Decision
[1]
dated May 14, 1999 of
the Court of Appeals in CA-G.R. SP No. 48902 affirming in toto Resolution No. 973277 of the
Civil Service Commission; and (b) Resolution
[2]
dated August 26, 1999 of the said court denying
the motion for reconsideration of its Decision.
The case stemmed from the affidavit-complaint for sexual harassment filed by Leonida
Umacob (respondent) against Arnold Mollaneda (petitioner) with the Civil Service Commission -
Regional Office X, Davao City (CSC-RO X) in September 1994 alleging:
"That sometime on September 7, 1994 at around 7:30 o'clock more or less, in the morning,
while inside the office of Mr. Rolando P. Suase, Admin Officer 2 of Davao City Schools, located
at the Division Office Building, along Palma Gil St., Davao City, to follow-up my request for
transfer from my present assignment to either Buhangin District or Bangoy District, Davao City,
Mr. Rolando P. Suase was not around and it was school Division Superintendent, Mr. Arnold P.
Mollaneda who was seated at his (Rolando's) table, as at the time, the office of Mr. Arnold
Mollaneda just adjacent was being cleaned by a janitor.
That immediately approached him and seated opposite to him and handed to him my letter of
recommendation from DECS Regional Director, Region X, Dr. Ramon Y. Alba, recommending
my possible transfer and after reading the same advised her to return next week as there is no
available item and that he will think about it. However, insisted that he will give me a note to fix
the time and date of our next meeting and or appointment at his office. At this instance, he
handed me a piece of paper with his prepared signature and requested me to write my name on
it, after which, he took it back from me and assured me to grant my request and at the same
time, he made some notations on the same piece of paper below my name, indicating my
possible transfer to Buhangin or Bangoy District of which thanked him for the
accomodation. At this point, he stood up, bringing along with him the paper so that also stood
up. However, before could get outside the office, he then handed to me the said piece of
paper and advised me to give it to a certain May Pescadero, personnel clerk, for the
making/cutting of the order of transfer. All of a sudden he hugged and embraced me, then he
kissed my nose and lip in a torrid manner. That tried to resist but he forcibly held my neck so
that he was able to kiss me in an easy way. That - not contented, he then mashed my left
breast. He did the malicious act for several times, afterwhich he warned me not to tell anybody
what he did to me inside the office.
That as a result of the very unfortunate incident, was so shocked, that was not able to speak
or talk or confess to my husband what our School Superintendent did to me. Likewise, also
informed one Venus Mariano, also DECS employee, who advised me to stay and remain
calm. However, decided to report the matter to San Pedro Patrol Station.
[3]
(Emphasis
supplied)
Respondent furnished the Department of Education, Culture and Sports - Regional Office
X, Davao City (DECS-RO X) a copy of her affidavit-complaint. Thus, on September 30, 1994,
Regional Director Susana Cabahug issued an order
[4]
directing the formation of a committee to
conduct an investigation of respondent's complaint against petitioner.
On October 4, 1994, petitioner filed with the CSC-RO X his answer to the affidavit-
complaint denying the allegations therein and alleging that there are "material contradictions, in
respondent's version of the incident, thus:
"1) On the date of the alleged happening of the incident, she was with her husband who was
just outside the Office of Mr. Mollaneda according to witness Security Guard Raul Moncada, but
she did not report the incident to her husband, nor did she register any complaint on that date
September 7, 1994;
She reported the alleged acts of lasciviousness complained of to the police only the following
day, September 8, 1994, at about 3:45 P.M. as shown by the extract of the entry of the police
blotter attached to her AFFDAVT-COMPLANT in this case.
2) n her report to the police as shown by the said police blotter, she said that "While at the
office of Mr. Arnold Mollaneda, Division Superintendent DECS X, she was requested by the
latter to transfer in the office of Mr. Rolando Suase as the janitor/security guard was cleaning
the room of the respondent.
And her version as published in The Mindanao Daily Mirror in the issue of September 10, 1994
(see ANNEX C of the complaint of Mollaneda to the City Prosecution Office). "Omacob said
Mollaneda in a written note told her to transfer to the room of a certain Rolando Suase since the
janitor will clean his room. But before she could move to the other room Mollaneda allegedly
hugged, kissed and mashed her breast and told her not to tell it to anybody.
3) n her instant Affidavit-Complaint, she again says "while inside the Office of Mr. Rolando P.
Suase x x x to follow-up my request for transfer x x x Mr. Suase was not around and it was
Schools Division Superintendent, Mr. Arnold P. Mollaneda who was seated at his (Rolando)
table, as at that time, the Office of Mr. Arnold P. Mollaneda just adjacent was being cleaned by
a janitor x x x. t was inside the office of Mr. Suase that she was given a note on her request for
transfer by Mr. Mollaneda to be given to May Pescadero when "At this point, he stood up
bringing along with him the paper so that also stood-up, however, before could get outside
the office, he then handed to me the said piece of paper and advised me to give it to a certain
May Pescadero, personnel clerk for the making/cutting of the order of transfer and at the same
time all of a sudden, he hug and embraced me, then he kissed my nose and lips in a torrid
manner. That tried to resist but he forcibly held my neck so that he was able to kiss me in an
easy way. That not contented, he then mashed my left breast, which he did the malicious act
for several times, afterwhich he warned me not to tell anybody what he did to me inside the
office.
[5]

n the present petition, petitioner alleged his own version of the incident,
[6]
thus:
"Petitioner, in his sworn statement, stated that on September 7, 1994, he had interviewed or
conferred with about three (3) persons already who were applying for new teaching positions or
for transfers when Respondent came to HS OFFCE. When it was her turn to be interviewed,
petitioner told her that she could not be transferred immediately because the Division only had
very few vacant items and the same were already given to earlier applicants. Nevertheless, she
was told to wait while he searched for a new vacant item.
Petitioner gave the Respondent a note for her to give to the Acting Personnel Officer Mildred
"May" Pescadero so that Respondent may be included in the list of teachers applying for
transfer. Upon reading the note, however, the Respondent angrily told him why could she not
be immediately accommodated when she had the written recommendation of Dir. Ramon
Alba. She told Petitioner that asking her to wait was unfair because there were other applicants
from Marilog district who were transferred and one of them who was slated to be transferred
was Mrs. Daylinda Bacoy.
Petitioner explained to the Respondent that Mrs. Bacoy suffered an injury when she fell off the
horse she was riding on when she went to her school in Kiopao Elementary School. Petitioner
scolded the Respondent for her insubordinate attitude toward him. She was counting so much
on the recommendation of Dir. Ramon Alba who was Petitioner's superior, and could not believe
that no positive action was made by Petitioner on the basis of said recommendation. n going
OUT OF THE OFFCE OF PETTONER, she was heard to have murmured that Petitioner
would regret his act of discrimination.
There was no act of sexual harassment that occurred during the relatively brief conversation
between the herein parties. The witnesses, whose affidavits were attached to the Affidavit of
Mr. Mollaneda, all swore to the fact that they saw what transpired between Petitioner and the
Respondent and that there was no act of sexual harassment that occurred. Moreover, they
swore to the fact that the interview took place inside Mr. Mollaneda's office as the both parties
were seen through a glass panel separating Petitioner's office and the anteroom."
Meanwhile, pending resolution by the CSC-RO X of respondent's complaint, the DECS
investigating committee recommended to the DECS Regional Director "the dropping of the
case" for lack of merit.
8

On June 5, 1995, the CSC-RO X issued a resolution charging petitioner with grave
misconduct, oppression, abuse of authority and conduct prejudicial to the best interest of the
service. The said office found there was a prima facie case against him
9
and eventually
elevated to the Civil Service Commission (Commission) the records of the case.
Thereafter, the Commission designated Atty. Anacleto Buena to hear and receive the
evidence in the case. A formal hearing was conducted in Davao City. Both parties were
assisted by counsel.
On July 7, 1997, the Commission issued Resolution No. 973277 finding petitioner guilty
of grave misconduct and conduct grossly prejudicial to the best interest of the service. He was
meted the penalty of dismissal from the government service with all its accessory
penalties.
10
Forthwith, petitioner filed a motion for reconsideration but was denied in Resolution
No. 981761.
11

Feeling aggrieved, petitioner filed with the Court of Appeals a petition for review
alleging: "first, that the Commission erred in finding him guilty x x x notwithstanding the fact that
he was denied his right to due process; and second, that the Commission erred in giving weight
to the hearsay testimonies of the witnesses for respondent.
12

On May 14, 1999, the Court of Appeals rendered its Decision
13
affirming in toto Resolution
No. 973277 of the Commission. The appellate court held:
"t is a time-honored rule that the matter of assigning values to the testimony of witnesses is
best performed by the trial courts, tribunals, or administrative bodies or agencies exercising
quasi-judicial powers. Unlike appellate courts, they can weigh such testimony in clear
observance of the demeanor, conduct and attitude of the witnesses at the trial or hearing. Thus,
absent any showing that they have overlooked facts of substance and value that if considered
might affect the result, their findings must be given weight and respect.
n the present case, nothing significant has been shown to convince this Court that the
Commission acted with bias or ignored something of substance that could have, in any degree,
warranted an exoneration of petitioner from the charges hurled against him.
t bears mentioning that respondent victim is a public school teacher. f she is not motivated by
the truth, she would not have subjected herself to the rigors of a hearing before the Commission
and airing in public matters that affect her honor. t is hard to conceive that respondent would
reveal and admit the shameful and humiliating experience she had undergone if it were not
true. n any case, the fact that petitioner could not proffer any explanation as to why respondent
and the prosecution witnesses would falsely testify against him logically proves that no improper
motive impelled them to accuse the former of such serious offense as sexual harassment.
x x x x x x x x x
Petitioner, in the present case, may not successfully plead violation of his right to due process
as he, in fact, participated at the pre-trial, agreed to matters therein taken up, attended the
hearing, and lengthily cross-examined the prosecution witnesses.
Anent petitioner's contention that the decision of the Commission was in conflict with newspaper
reports of a decision dismissing the case against him for insufficiency of evidence, suffice it to
state that what the movant considers as a decision is merely a newspaper report. Newspaper
accounts and clippings are hearsay and have no evidentiary value. (People vs. Aguel, 97
SCRA 795).
14

Rebuffed in his bid for reconsideration of the Court of Appeals Decision, petitioner filed the
instant petition, and as grounds therefor alleges:
I
THE RELANCE OF THE COURT OF APPEALS ON THE THEORY THAT FNDNGS OF
QUAS-JUDCAL AGENCES ARE GVEN CONSDERABLE WEGHT, S MSPLACED N
VEW OF THE PERTNENT FACTS OF THE CASE.
II
A SMLAR ADMNSTRATVE CASE WAS NSTTUTED N AND NVESTGATED BY THE
D.E.C.S. AND A RESOLUTON WAS RENDERED DSMSSNG THE CASE AGANST
PETTONER.
III
THE TESTMONES OF THE WTNESSES FOR THE PETTONER WERE ALL EYE-
WTNESSES TO THE ACTUAL NCDENT, WHCH CAST DOUBT ON THE CREDBLTY OF
THE RESPONDENT'S TESTMONY.
15

Petitioner contends that the oft-cited rule - the matter of assigning values to the testimony of
witnesses is best performed by the x x x administrative bodies or agencies exercising quasi-
judicial powers - finds no application in the present case. According to petitioner, the failure of
the CSC Commissioners to "personally observe the demeanor, conduct and attitude of the
witnesses and their reliance solely on Atty. Buena's recommendation and notes should have
discouraged the Court of Appeals from giving weight to the findings of the Commission.
Petitioner also argues that respondent engaged in forum shopping by filing her affidavit-
complaint with the DECS-RO X and CSC-RO X; and that the Court of Appeals should have
considered in his favor the DECS-RO X's resolution dismissing the administrative case against
him. Finally, petitioner insists that the Court of Appeals erroneously gave credence to the
"hearsay testimonies of Melencio Umacob, respondent's husband, and Venus Mariano,
secretary of the Assistant Division Superintendent of the Davao City Schools. These witnesses
testified that respondent narrated to them the events concerning the sexual harassment
committed against her by petitioner.
For her part, respondent reiterates the ruling of the Court of Appeals that in reviewing
administrative cases, the appellate court is traditionally sanctioned to subscribe to the findings
of the lower court or administrative body or agency since it is in a better position to determine
the credibility of witnesses. As to the alleged "act of forum-shopping, petitioner claims that in
pursuing redress of her grievances, she sought refuge both in the court and in the Commission
for she believed they are the proper fora for her criminal and administrative complaints. And
lastly, respondent counters that the Commission did not err in giving more credence to the
testimonies of her witnesses, stressing that petitioner's witnesses are biased, they being his
subordinates.
During the pendency of this case in this Court, petitioner submitted the decision of the
Municipal Trial Court, Branch 5, Davao City, acquitting him of the crime of acts of
lasciviousness which arose from the same incident involved in the present administrative case.
The petition is bereft of merit.
n assailing the Decision of the Court of Appeals, petitioner is actually urging us not to give
credence to the factual findings of the Commission on the ground that the Commissioners did
not personally hear the case.
The fact that the Commission assigned Atty. Buena to hear and receive evidence does not
render its factual findings unworthy of credence. n laying down the precedent that the matter of
assigning values to the testimony of witnesses is best performed by trial courts or administrative
bodies rather than by appellate courts, this Court merely recognizes that the trial court or the
administrative body as a trier of facts is in a better position to assess the demeanor of the
witnesses and the credibility of their testimonies as they were within its proximal view during the
hearing or investigation. At any rate, it cannot be gainsaid that the term "administrative body or
agency includes the subordinate officials upon whose hand the body or agency delegates a
portion of its authority. ncluded therein are the hearing officers through whose eyes and ears
the administrative body or agency observes the demeanor, conduct and attitude of the
witnesses and listens to their testimonies.
16

t must be emphasized that the appointment of competent officers to hear and receive
evidence is commonly resorted to by administrative bodies or agencies in the interest of an
orderly and efficient disposition of administrative cases. This Court, in American Tobacco
Company v. Director of Patents,
17
ruled:
"Thus, it is well-settled that while the power to decide resides solely in the administrative agency
vested by law, this does not preclude a delegation of the power to hold a hearing on the basis of
which the decision of the administrative agency will be made."
The rule that requires an administrative officer to exercise his own judgment and discretion does
not preclude him from utilizing, as a matter of practical administrative procedure, the aid of
subordinates to investigate and report to him the facts, on the basis of which the officer makes
his decisions. t is sufficient that the judgment and discretion finally exercised are those of the
officer authorized by law. Neither does due process of law nor the requirements of fair hearing
require that the actual taking of testimony be before the same officer who will make the decision
in the case. As long as a party is not deprived of his right to present his own case and submit
evidence in support thereof, and the decision is supported by the evidence in the record, there
is no question that the requirements of due process and fair trial are fully met. n short, there is
no abnegation of responsibility on the part of the officer concerned as the actual decision
remains with and is made by said officer. t is, however, required that to "give the substance of
a hearing, which is for the purpose of making determinations upon evidence the officer who
makes the determinations must consider and appraise the evidence which justifies them.
n the case at bar, while the hearing officer may make preliminary rulings on the myriad of
questions raised at the hearings of these cases, the ultimate decision on the merits of all the
issues and questions involved is left to the Director of Patents. Apart from the circumstance that
the point involved is procedural and not jurisdictional, petitioners have not shown in what
manner they have been prejudiced by the proceedings.
Under our jurisprudence, an administrative agency may employ other persons, such as a
hearing officer, examiner or investigator, to receive evidence, conduct hearing and make reports
on the basis of which the agency shall render its decision. Such a procedure is a practical
necessity. Corollarily, in a catena of cases, this Court laid down the cardinal requirements of
due process in administrative proceedings, one of which is that "the tribunal or body or any of its
judges must act on its or his own independent consideration of the law and facts of the
controversy, and not simply accept the views of a subordinate.
18
Thus, it is logical to say that
this mandate was rendered precisely to ensure that in cases where the hearing or reception of
evidence is assigned to a subordinate, the body or agency shall not merely rely on his
recommendation but instead shall personally weigh and assess the evidence which the said
subordinate has gathered. n the case at bar, it is evident that the Commission itself evaluated
in detail the evidence of both parties as reported by Atty. Buena. n fact, in laying down its
conclusion, it made constant reference to the testimonies of the parties and of their witnesses
and to the documentary evidence presented.
t must be addressed that, the Commission's act of delegating the authority to hear and
receive evidence to Atty. Buena is not without legal basis. Section 47, Book V of Executive
Order No. 292 (otherwise known as the Administrative Code of 1987) provides that the
Commission may deputize any department or agency or official or group of officials to conduct
an investigation on the complaint filed by a private citizen against a government official or
employee. The results of the investigation shall be submitted to the Commission with
recommendation as to the penalty to be imposed or other action to be taken.
Going further, petitioner complains that he was not furnished a copy of Atty. Buena's notes
and recommendation. The Court cannot empathize with him. n Ruiz v. Drilon,
18
we
unequivocally held that a respondent in an administrative case is not entitled to be informed of
the findings and recommendation of any investigating committee created to inquire into the
charges filed against him. He is entitled only to the administrative decision based on substantial
evidence made of record and a reasonable opportunity to meet the charges and the evidence
presented against him during the hearing.
20
Besides, Atty. Buena's findings and
recommendation are internal communications between him and the Commission and, therefore,
confidential. n Pefianco v. oral,
21
this Court held:
"Respondent's (Moral) counsel is reminded that the Report of the DECS nvestigating
Committee is not an integral part of the Decision itself x x x [t]he report is an internal
communication between the nvestigating Committee and the DECS Secretary, and therefore,
confidential until the latter had already read and used the same in making his own determination
of the facts and applicable law of the case, to be expressed in the Decision he may make.
The Report remains an internal and confidential matter to be used as part - although not
controlling - of the basis for the decision. Only when the party adversely affected by the
decision has filed and perfected an appeal to the Civil Service Commission may all the records
of the case, including the aforesaid Report be forwarded to the CSC. n the latter appellate
tribunal, the respondent's counsel may be allowed to read and/or be given a copy of the Report
to enable the appellant to file an intelligent and exhaustive appellant's Brief Memorandum.
Petitioner's second argument requires no lengthy discussion. First, he did not raise the
issue of forum-shopping before the Commission.
22
t bears emphasis that respondent
merely furnished the DECS-RO X a copy of her affidavit-complaint. And second, we surveyed
the records and there is nothing therein which supports petitioner's claim that the DECS-RO X
dismissed respondent's affidavit-complaint. The resolution
22
of the DECS mainly recommended
to the Regional Director of the DECS-RO X the dropping of the case. A recommendatory
resolution does not have the effect of actually disposing of a case. ts function is merely to
advise the disciplining authority of what action should be taken or what penalty should be
imposed. t is not controlling and the disciplining authority may or may not conform with the
recommended action.
On petitioner's assertion that the testimony of respondent's witnesses are hearsay and,
therefore, inadmissible in evidence, we are constrained to hold a different view. A reading of
the testimonies of Umacob and Mariano shows that they were not presented to prove the truth
of respondent's accusations against petitioner, but only to establish the fact that respondent
narrated to them what transpired between her and petitioner. While it is true that the testimony
of a witness regarding a statement made by another person, if intended to establish the truth of
the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of
placing the statement in the record is merely to establish the fact that the statement was
made.
23
Regardless of the truth or falsity of a statement, when the fact that it has been made is
relevant, the hearsay rule does not apply and the statement may be shown. As a matter of fact,
evidence as to the making of the statement is not secondary but primary, for the statement itself
may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.
24

Significantly, respondent herself and her witnesses were present during the hearing of the
case. Hence, petitioner was given the opportunity to cross-examine them. The real basis for
the exclusion of hearsay evidence lies in the fact that a hearsay testimony is not subject to the
tests which can ordinarily be applied for the ascertainment of the truth of testimony, since the
declarant is not present and available for cross-examination.
25

Lastly, petitioner cannot find solace in the dismissal of the criminal case against him. Long-
ingrained in our jurisprudence is the rule that the dismissal of a criminal case against an
accused who is a respondent in an administrative case on the ground of insufficiency of
evidence does not foreclose the administrative proceeding against him or give him a clean bill of
health in all respects. n dismissing the case, the court is simply saying that the prosecution was
unable to prove the guilt of the respondent beyond reasonable doubt, a condition sine qua
non for conviction because of the presumption of innocence which the Constitution guarantees
an accused.
27
However, in administrative proceedings, the quantum of proof required is only
substantial evidence.
28
Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
29
After a more incisive scrutiny of the
records, we are convinced that petitioner's culpability has been proven by substantial
evidence. Respondent's testimony was found by the Commission to be "natural, straightforward,
spontaneous and convincing.
30
Unlike petitioner's testimony, that of respondent is replete with
details consistent with human nature. Clearly, the dismissal of the criminal case against
petitioner by the Municipal Trial Court, Branch 5, Davao City cannot bind this Court in the
disposition of the instant administrative case.
31

n sum, we find no reason to reverse the decision of the Court of Appeals. While it is
unfotunate that petitioner will lose his job because of a moment's indiscretion, this Court shall
not flinch in imposing upon him the severe penalty of dismissal. As Schools Division
Superintendent, petitioner is bound by a high standard of work ethics. By succumbing to his
moral perversity, he failed to live up to such standard. ndeed, he provided a justifiable ground
for his dismissal from the service.
HEREFORE, the appealed decision of the Court of Appeals is hereby AFFRMED. No
costs.
SO ORDERED.
elo, (Chairman), 'itug, Panganiban, and Gonzaga-Reyes, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
THRD DVSON
G.R. No. 168289 March 22, 2010
THE MUNICIPALITY OF HAGONOY, BULACAN, represented by the HON. FELIX V. OPLE,
MunicipaI Mayor, and FELIX V. OPLE, in his personaI capacity, Petitioners,
vs.
HON. SIMEON P. DUMDUM, JR., in his capacity as the Presiding Judge of the REGIONAL
TRIAL COURT, BRANCH 7, CEBU CITY; HON. CLERK OF COURT & EX-OFFICIO SHERIFF
of the REGIONAL TRIAL COURT of CEBU CITY; HON. CLERK OF COURT & EX-OFFICIO
SHERIFF of the REGIONAL TRIAL COURT of BULACAN and his DEPUTIES; and EMILY
ROSE GO KO LIM CHAO, doing business under the name and styIe KD
SURPLUS, Respondents.
D E C S O N
PERALTA, J.:
This is a Joint Petition
1
under Rule 45 of the Rules of Court brought by the Municipality of
Hagonoy, Bulacan and its former chief executive, Mayor Felix V. Ople in his official and
personal capacity, from the January 31, 2005 Decision
2
and the May 23, 2005 Resolution
3
of
the Court of Appeals in CA-G.R. SP No. 81888. The assailed decision affirmed the October 20,
2003 Order
4
issued by the Regional Trial Court of Cebu City, Branch 7 in Civil Case No. CEB-
28587 denying petitioners' motion to dismiss and motion to discharge/dissolve the writ of
preliminary attachment previously issued in the case. The assailed resolution denied
reconsideration.
The case stems from a Complaint
5
filed by herein private respondent Emily Rose Go Ko Lim
Chao against herein petitioners, the Municipality of Hagonoy, Bulacan and its chief executive,
Felix V. Ople (Ople) for collection of a sum of money and damages. t was alleged that
sometime in the middle of the year 2000, respondent, doing business as KD Surplus and as
such engaged in buying and selling surplus trucks, heavy equipment, machinery, spare parts
and related supplies, was contacted by petitioner Ople. Respondent had entered into an
agreement with petitioner municipality through Ople for the delivery of motor vehicles, which
supposedly were needed to carry out certain developmental undertakings in the municipality.
Respondent claimed that because of Ople's earnest representation that funds had already been
allocated for the project, she agreed to deliver from her principal place of business in Cebu City
twenty-one motor vehicles whose value totaled P5,820,000.00. To prove this, she attached to
the complaint copies of the bills of lading showing that the items were consigned, delivered to
and received by petitioner municipality on different dates.
6
However, despite having made
several deliveries, Ople allegedly did not heed respondent's claim for payment. As of the filing of
the complaint, the total obligation of petitioner had already totaled P10,026,060.13 exclusive of
penalties and damages. Thus, respondent prayed for full payment of the said amount, with
interest at not less than 2% per month, plus P500,000.00 as damages for business
losses, P500,000.00 as exemplary damages, attorney's fees of P100,000.00 and the costs of
the suit.
On February 13, 2003, the trial court issued an Order
7
granting respondent's prayer for a writ of
preliminary attachment conditioned upon the posting of a bond equivalent to the amount of the
claim. On March 20, 2003, the trial court issued the Writ of Preliminary Attachment
8
directing the
sheriff "to attach the estate, real and personal properties" of petitioners.
nstead of addressing private respondent's allegations, petitioners filed a Motion to Dismiss
9
on
the ground that the claim on which the action had been brought was unenforceable under the
statute of frauds, pointing out that there was no written contract or document that would evince
the supposed agreement they entered into with respondent. They averred that contracts of this
nature, before being undertaken by the municipality, would ordinarily be subject to several
preconditions such as a public bidding and prior approval of the municipal council which, in this
case, did not obtain. From this, petitioners impress upon us the notion that no contract was ever
entered into by the local government with respondent.
10
To address the claim that respondent
had made the deliveries under the agreement, they advanced that the bills of lading attached to
the complaint were hardly probative, inasmuch as these documents had been accomplished
and handled exclusively by respondent herself as well as by her employees and agents.
11

Petitioners also filed a Motion to Dissolve and/or Discharge the Writ of Preliminary Attachment
Already ssued,
12
invoking immunity of the state from suit, unenforceability of the contract, and
failure to substantiate the allegation of fraud.
13

On October 20, 2003, the trial court issued an Order
14
denying the two motions. Petitioners
moved for reconsideration, but they were denied in an Order
15
dated December 29, 2003.
Believing that the trial court had committed grave abuse of discretion in issuing the two orders,
petitioners elevated the matter to the Court of Appeals via a petition for certiorari under Rule 65.
n it, they faulted the trial court for not dismissing the complaint despite the fact that the alleged
contract was unenforceable under the statute of frauds, as well as for ordering the filing of an
answer and in effect allowing private respondent to prove that she did make several deliveries
of the subject motor vehicles. Additionally, it was likewise asserted that the trial court committed
grave abuse of discretion in not discharging/dissolving the writ of preliminary attachment, as
prayed for in the motion, and in effect disregarding the rule that the local government is immune
from suit.
On January 31, 2005, following assessment of the parties' arguments, the Court of Appeals,
finding no merit in the petition, upheld private respondent's claim and affirmed the trial court's
order.
16
Petitioners moved for reconsideration, but the same was likewise denied for lack of
merit and for being a mere scrap of paper for having been filed by an unauthorized
counsel.
17
Hence, this petition.
n their present recourse, which raises no matter different from those passed upon by the Court
of Appeals, petitioners ascribe error to the Court of Appeals for dismissing their challenge
against the trial court's October 20 and December 29, 2003 Orders. Again, they reason that the
complaint should have been dismissed at the first instance based on unenforceability and that
the motion to dissolve/discharge the preliminary attachment should have been granted.
18

Commenting on the petition, private respondent notes that with respect to the Court of Appeals'
denial of thecertiorari petition, the same was rightly done, as the fact of delivery may be properly
and adequately addressed at the trial of the case on the merits; and that the dissolution of the
writ of preliminary attachment was not proper under the premises inasmuch as the application
for the writ sufficiently alleged fraud on the part of petitioners. n the same breath, respondent
laments that the denial of petitioners' motion for reconsideration was rightly done by the Court of
Appeals, because it raised no new matter that had not yet been addressed.
19

After the filing of the parties' respective memoranda, the case was deemed submitted for
decision.
We now rule on the petition.
To begin with, the Statute of Frauds found in paragraph (2), Article 1403 of the Civil
Code,
20
requires for enforceability certain contracts enumerated therein to be evidenced by
some note or memorandum. The term "Statute of Frauds" is descriptive of statutes that require
certain classes of contracts to be in writing; and that do not deprive the parties of the right to
contract with respect to the matters therein involved, but merely regulate the formalities of the
contract necessary to render it enforceable.
21

n other words, the Statute of Frauds only lays down the method by which the enumerated
contracts may be proved. But it does not declare them invalid because they are not reduced to
writing inasmuch as, by law, contracts are obligatory in whatever form they may have been
entered into, provided all the essential requisites for their validity are present.
22
The object is to
prevent fraud and perjury in the enforcement of obligations depending, for evidence thereof, on
the unassisted memory of witnesses by requiring certain enumerated contracts and transactions
to be evidenced by a writing signed by the party to be charged.
23
The effect of noncompliance
with this requirement is simply that no action can be enforced under the given contracts.
24
f an
action is nevertheless filed in court, it shall warrant a dismissal under Section 1(i),
25
Rule 16 of
the Rules of Court, unless there has been, among others, total or partial performance of the
obligation on the part of either party.
26

t has been private respondent's consistent stand, since the inception of the instant case that
she has entered into a contract with petitioners. As far as she is concerned, she has already
performed her part of the obligation under the agreement by undertaking the delivery of the 21
motor vehicles contracted for by Ople in the name of petitioner municipality. This claim is well
substantiated at least for the initial purpose of setting out a valid cause of action against
petitioners by copies of the bills of lading attached to the complaint, naming petitioner
municipality as consignee of the shipment. Petitioners have not at any time expressly denied
this allegation and, hence, the same is binding on the trial court for the purpose of ruling on the
motion to dismiss. n other words, since there exists an indication by way of allegation that there
has been performance of the obligation on the part of respondent, the case is excluded from the
coverage of the rule on dismissals based on unenforceability under the statute of frauds, and
either party may then enforce its claims against the other.
No other principle in remedial law is more settled than that when a motion to dismiss is filed, the
material allegations of the complaint are deemed to be hypothetically admitted.
27
This
hypothetical admission, according to Viewmaster Construction Corporation v. Roxas
28
and
Navoa v. Court of Appeals,
29
extends not only to the relevant and material facts well pleaded in
the complaint, but also to inferences that may be fairly deduced from them. Thus, where it
appears that the allegations in the complaint furnish sufficient basis on which the complaint can
be maintained, the same should not be dismissed regardless of the defenses that may be raised
by the defendants.
30
Stated differently, where the motion to dismiss is predicated on grounds
that are not indubitable, the better policy is to deny the motion without prejudice to taking such
measures as may be proper to assure that the ends of justice may be served.
31

t is interesting to note at this point that in their bid to have the case dismissed, petitioners
theorize that there could not have been a contract by which the municipality agreed to be
bound, because it was not shown that there had been compliance with the required bidding or
that the municipal council had approved the contract. The argument is flawed. By invoking
unenforceability under the Statute of Frauds, petitioners are in effect acknowledging the
existence of a contract between them and private respondent only, the said contract cannot
be enforced by action for being non-compliant with the legal requisite that it be reduced into
writing. Suffice it to say that while this assertion might be a viable defense against respondent's
claim, it is principally a matter of evidence that may be properly ventilated at the trial of the case
on the merits.
Verily, no grave abuse of discretion has been committed by the trial court in denying petitioners'
motion to dismiss this case. The Court of Appeals is thus correct in affirming the same.
We now address the question of whether there is a valid reason to deny petitioners' motion to
discharge the writ of preliminary attachment.
Petitioners, advocating a negative stance on this issue, posit that as a municipal corporation,
the Municipality of Hagonoy is immune from suit, and that its properties are by law exempt from
execution and garnishment. Hence, they submit that not only was there an error committed by
the trial court in denying their motion to dissolve the writ of preliminary attachment; they also
advance that it should not have been issued in the first place. Nevertheless, they believe that
respondent has not been able to substantiate her allegations of fraud necessary for the
issuance of the writ.
32

Private respondent, for her part, counters that, contrary to petitioners' claim, she has amply
discussed the basis for the issuance of the writ of preliminary attachment in her affidavit; and
that petitioners' claim of immunity from suit is negated by Section 22 of the Local Government
Code, which vests municipal corporations with the power to sue and be sued. Further, she
contends that the arguments offered by petitioners against the writ of preliminary attachment
clearly touch on matters that when ruled upon in the hearing for the motion to discharge, would
amount to a trial of the case on the merits.
33

The general rule spelled out in Section 3, Article XV of the Constitution is that the state and its
political subdivisions may not be sued without their consent. Otherwise put, they are open to suit
but only when they consent to it. Consent is implied when the government enters into a
business contract, as it then descends to the level of the other contracting party; or it may be
embodied in a general or special law
34
such as that found in Book , Title , Chapter 2, Section
22 of the Local Government Code of 1991, which vests local government units with certain
corporate powers one of them is the power to sue and be sued.
Be that as it may, a difference lies between suability and liability. As held in City of Caloocan v.
Allarde,
35
where the suability of the state is conceded and by which liability is ascertained
judicially, the state is at liberty to determine for itself whether to satisfy the judgment or not.
Execution may not issue upon such judgment, because statutes waiving non-suability do not
authorize the seizure of property to satisfy judgments recovered from the action. These statutes
only convey an implication that the legislature will recognize such judgment as final and make
provisions for its full satisfaction. Thus, where consent to be sued is given by general or special
law, the implication thereof is limited only to the resultant verdict on the action before execution
of the judgment.
36

Traders Royal Bank v. ntermediate Appellate Court,
37
citing Commissioner of Public Highways
v. San Diego,
38
is instructive on this point. n that case which involved a suit on a contract
entered into by an entity supervised by the Office of the President, the Court held that while the
said entity opened itself to suit by entering into the subject contract with a private entity; still, the
trial court was in error in ordering the garnishment of its funds, which were public in nature and,
hence, beyond the reach of garnishment and attachment proceedings. Accordingly, the Court
ordered that the writ of preliminary attachment issued in that case be lifted, and that the parties
be allowed to prove their respective claims at the trial on the merits. There, the Court highlighted
the reason for the rule, to wit:
The universal rule that where the State gives its consent to be sued by private parties either by
general or special law, it may limit claimant's action "only up to the completion of proceedings
anterior to the stage of execution" and that the power of the Courts ends when the judgment is
rendered, since government funds and properties may not be seized under writs of execution or
garnishment to satisfy such judgments, is based on obvious considerations of public policy.
Disbursements of public funds must be covered by the corresponding appropriations as
required by law. The functions and public services rendered by the State cannot be allowed to
be paralyzed or disrupted by the diversion of public funds from their legitimate and specific
objects. x x x
39

With this in mind, the Court holds that the writ of preliminary attachment must be dissolved and,
indeed, it must not have been issued in the very first place. While there is merit in private
respondent's position that she, by affidavit, was able to substantiate the allegation of fraud in the
same way that the fraud attributable to petitioners was sufficiently alleged in the complaint and,
hence, the issuance of the writ would have been justified. Still, the writ of attachment in this
case would only prove to be useless and unnecessary under the premises, since the property of
the municipality may not, in the event that respondent's claim is validated, be subjected to writs
of execution and garnishment unless, of course, there has been a corresponding
appropriation provided by law.
40
1avvphi1
Anent the other issues raised by petitioners relative to the denial of their motion to dissolve the
writ of attachment, i.e., unenforceability of the contract and the veracity of private respondent's
allegation of fraud, suffice it to say that these pertain to the merits of the main action. Hence,
these issues are not to be taken up in resolving the motion to discharge, lest we run the risk of
deciding or prejudging the main case and force a trial on the merits at this stage of the
proceedings.
41

There is one final concern raised by petitioners relative to the denial of their motion for
reconsideration. They complain that it was an error for the Court of Appeals to have denied the
motion on the ground that the same was filed by an unauthorized counsel and, hence, must be
treated as a mere scrap of paper.
42

t can be derived from the records that petitioner Ople, in his personal capacity, filed his Rule 65
petition with the Court of Appeals through the representation of the law firm Chan Robles &
Associates. Later on, municipal legal officer Joselito Reyes, counsel for petitioner Ople, in his
official capacity and for petitioner municipality, filed with the Court of Appeals a Manifestation
with Entry of Appearance
43
to the effect that he, as counsel, was "adopting all the pleadings filed
for and in behalf of [Ople's personal representation] relative to this case."
44

t appears, however, that after the issuance of the Court of Appeals' decision, only Ople's
personal representation signed the motion for reconsideration. There is no showing that the
municipal legal officer made the same manifestation, as he previously did upon the filing of the
petition.
45
From this, the Court of Appeals concluded that it was as if petitioner municipality and
petitioner Ople, in his official capacity, had never moved for reconsideration of the assailed
decision, and adverts to the ruling in Ramos v. Court of Appeals
46
and Municipality of Pililla,
Rizal v. Court of Appeals
47
that only under well-defined exceptions may a private counsel be
engaged in lawsuits involving a municipality, none of which exceptions obtains in this case.
48

The Court of Appeals is mistaken. As can be seen from the manner in which the Manifestation
with Entry of Appearance is worded, it is clear that petitioner municipality's legal officer was
intent on adopting, for both the municipality and Mayor Ople, not only the certiorari petition filed
with the Court of Appeals, but also all other pleadings that may be filed thereafter by Ople's
personal representation, including the motion for reconsideration subject of this case. n any
event, however, the said motion for reconsideration would warrant a denial, because there
seems to be no matter raised therein that has not yet been previously addressed in the assailed
decision of the Court of Appeals as well as in the proceedings below, and that would have
otherwise warranted a different treatment of the issues involved.
HEREFORE, the Petition is GRANTED IN PART. The January 31, 2005 Decision of the Court
of Appeals in CA-G.R. SP No. 81888 is AFFIRMED insofar as it affirmed the October 20, 2003
Decision of the Regional Trial Court of Cebu City, Branch 7 denying petitioners' motion to
dismiss in Civil Case No. CEB-28587. The assailed decision is REVERSED insofar as it
affirmed the said trial court's denial of petitioners' motion to discharge the writ of preliminary
attachment issued in that case. Accordingly, the August 4, 2003 Writ of Preliminary Attachment
issued in Civil Case No. CEB-28587 is ordered lifted.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:

EN BANC
G.R. No. 13349. September 3, 1998]
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and JOSE T.
CAPCO, JR., respondents.
D E C I S I O N
MENDOZA, J.:
This case presents for determination the scope of the constitutional provision barring
elective officials, with the exception of barangay officials, from serving more than three
consecutive terms. n particular, the question is whether a vice-mayor who succeeds to the
office of mayor by operation of law and serves the remainder of the term is considered to have
served a term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18,
1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation
of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was
elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he
was reelected mayor for another term of three years ending June 30, 1998.
[1]

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also
a candidate for mayor, sought Capco's disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros.
[2]
However, on motion of private respondent, the COMELEC en banc, voting
5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998
elections.
[3]
The majority stated in its decision:
n both the Constitution and the Local
Government Code, the three-term limitation refers
to the term of office for which the local official was
elected. t made no reference to succession to
an office to which he was not elected. n the case
before the Commission, respondent Capco was
not elected to the position of mayor in the
January 18, 1988 local elections. He succeeded
to such office by operation of law and served for
the unexpired term of his
predecessor. Consequently, such succession into
office is not counted as one (1) term for purposes
of the computation of the three-term limitation
under the Constitution and the Local Government
Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes
against petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of
Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of he
COMELEC and to seed a declaration that private respondent is disqualified to serve another
term as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capco's service as mayor from September 2,
1989 to June 30, 992 should be considered as service for full one term, and since he thereafter
served from 1992 to 1998 two more terms as mayor, he should be considered to have served
three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of
the Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar
Borja on September 2, 1989, private respondent became the mayor and thereafter served the
remainder of the term. Petitioner argues that it is irrelevant that private respondent became
mayor by succession because the purpose of the constitutional provision in limiting the number
of terms elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office - . . .
(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected..
First, to prevent the establishment of political dynasties is not the only policy embodied in
the constitutional provision in question. The other policy is that of enhancing the freedom of
choice of the people. To consider, therefore, only stay in office regardless of how the official
concerned came to that office whether by election or by succession by operation of law
would be to disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals
that the members of the Constitutional Commission were as much concerned with preserving
the freedom of choice of the people as they were with preventing the monopolization of political
power. ndeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that
after serving three consecutive terms or nine years there should be no further reelection for
local and legislative officials. nstead, they adopted the alternative proposal of Commissioner
Christian Monsod that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term.
[4]
Monsod warned
against "prescreening candidates [from] whom the people will choose as a result of the
proposed absolute disqualification, considering that the draft constitution provision "recognizing
people's power.
[5]

Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with the limits on
consecutive service as decided by the Constitutional Commission. would be very wary about
this Commission exercising a sort of omnipotent power in order to disqualify those who will
already have served their terms from perpetuating themselves in office. think the Commission
achieves its purpose in establishing safeguards against the excessive accumulation of power as
a result of consecutive terms. We do put a cap on consecutive service in the case of the
President, six years; in the case of the Vice-President, unlimited; and in the case of the
Senators, one reelection. n the case of the Members of Congress, both from the legislative
districts and from the party list and sectoral representation, this is now under discussion and
later on the policy concerning local officials will be taken up by the Committee on Local
Governments. The principle remains the same. think we want to prevent future situations
where, as a result of continuous service and frequent reelections, officials from the President
down to the municipal mayor tend to develop a proprietary interest in their position and to
accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer
these posts to members of their families in a subsequent election. think that is taken care of
because we put a gap on the continuity or the unbroken service of all of these officials. But
where we now decide to put these prospective servants of the people or politicians, if we want
to use the coarser term, under a perpetual disqualification, have a feeling that we are taking
away too much from the people, whereas we should be giving as much to the people as we can
in terms of their own freedom of choice..
[6]

Other commissioners went on record against "perpetually disqualifying elective officials
who have served a certain number of terms as this would deny the right of the people to
choose. As Commissioner Yusup R. Abubakar asked, "why should we arrogate unto ourselves
the right to decide what the people want?
[7]

Commisioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues
to "allow the people to exercise their own sense of proportion and [rely] on their own strength to
curtail power when it overreaches itself.
[8]

Commissioner Teodoro C. Bacani stressed: " Why should we not leave [perpetual
disqualification after serving a number of terms] to the premise accepted by practically
everybody here that our people are politically mature? Should we use this assumption only
when it is convenient for us, and not when it may also lead to a freedom of choice for the people
and for politicians who may aspire to serve them longer?
[9]

Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they
wish to govern them be preserved.
t is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so
on the assumption that the officials concerned were serving by reason of reelection. This is
clear from the following exchange in the Constitutional Commission concerning term limits, now
embodied in Art. V 4 and 7 of the Constitution, for members of Congress:
MR. GASCON. would like to ask a question with regard to the issue after the second
term. We will allow the Senator to rest for a period of time before he can run again?
MR. DAVDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will
remember- was: How long will that period of rest be? Will it be one election which is
three years or one term which is six years?
MR. DAVDE. f the Gentlemen will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So it is not really a period of hibernation for six
years. That was the Committee's stand.
[10]

ndeed, a fundamental tenet of representative democracy is that the people should be
allowed to choose whom they please to govern them.
[11]
To bar the election of a local official
because he has already served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of
the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive
terms as a result of election. The first sentence speaks of "the term of office of elective local
officials and bars "such official[s] from serving for more than three consecutive terms. The
second sentence, in explaining when an elective local official may be deemed to have served
his full term of office, states that "voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for which he
was elected. The term served must therefore be one "for which [the official concerned] was
elected. The purpose of this provision is to prevent a circumvention of the limitation on the
number of terms an elective official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term now withstanding his voluntary
renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas' comment on Art. V, 7, which similarly bars
members of the House of Representatives from serving for more than three
terms. Commissioner Bernas states that "if one is elected Representative to serve the
unexpired term of another, that unexpired term, no matter how short, will be considered one
term for the purpose of computing the number of successive terms allowed.
[12]

This is actually based on the opinion expressed by Commissioner Davide in answer to a
query of Commissioner Suarez: "For example, a special election is called for a Senator, and
the Senator newly elected would have to serve the unexpired portion of the term. Would that
mean that serving the unexpired portion of the term is already considered one term? So, half a
term, which is actually the correct statement, plus one term would disqualify the Senator
concerned from running? s that the meaning of this provision on disqualification, Madam
President? Commissioner Davide said: "Yes, because we speak of "term and if there is a
special election, he will serve only for the unexpired portion of that particular term plus one more
term for the Senator and two more terms for the Members of the Lower House.
[13]

There is a difference, however, between the case of a vice-mayor and that of a member of
the House of Representatives who succeeds another who dies, resigns, becomes incapacitated,
or is removed from office. The vice-mayor succeeds to the mayorship by operation of law.
[14]
On
the other hand, the Representative is elected to fill the vacancy.
[15]
n a real sense, therefore,
such Representative serves a term for which he was elected. As the purpose of the
constitutional provision is to limit the right ot be elected and to serve in Congress, his service of
the unexpired term is rightly counted as his first term. Rather than refute what we believe to be
the intendment of Art. X, 8 with regard to elective local officials, the case of a Representative
who succeeds another confirms the theory.
Petitioner also cites Art. V, 4 of the Constitution which provides for succession of the
Vice-President to the Presidency in case of vacancy in that office. After stating that "The
President shall not be eligible for any reelection, this provision says that "No person who has
succeeded as President and has served as such for more than four years shall be qualified for
election to the same office at any time. Petitioner contends that, by analogy, the vice-mayor
should likewise be considered to have served a full term as mayor if he succeeds to the latter's
office and serves for the remainder of the term.
The framers of the Constitution included such a provision because, without it, the Vice-
President, who simply steps into the Presidency by succession would be qualified to run for
President even if he has occupied that office for more than four years. The absence of a similar
provision in Art. X, 8 on elective local officials throws in bold relief the difference between the
two cases. t underscores the constitutional intent to cover only the terms of office to which one
may have been elected for purpose of the three-term limit on local elective officials,
disregarding for this purpose service by automaticsuccession.
There is another reason why the Vice-President who succeeds to the Presidency and
serves in that office for more than four years is ineligible for election as President. The Vice-
President is elected primarily to succeed the President in the event of the latter's death,
permanent disability, removal or resignation. While he may be appointed to the cabinet, his
becoming so is entirely dependent on the good graces of the President. n running for Vice-
President, he may thus be said to also seek the Presidency. For their part, the electors likewise
choose as Vice-President the candidate who they think can fill the Presidency in the event it
becomes vacant. Hence, service in the presidency for more than four years may rightly be
considered as service for a full term.
This is not so in the case of the vice-mayor. Under the local Government Code, he is the
presiding officer of the sanggunian and he appoints all officials and employees of such local
assembly. He has distinct powers and functions, succession to mayorship in the event of
vacancy therein being only one of them.
[16]
t cannot be said of him, as much as of the Vice-
President in the event of a vacancy in the Presidency, that in running for vice-mayor, he also
seeks the mayorship. His assumption of the mayorship in the event of vacancy is more a matter
of chance than of design. Hence, his service in that office should not be counted in the
application of any term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive terms in an elective local office, he
must also have been elected to the same position for the same number of times before the
disqualification can apply. This point can be made clearer by considering the following cases or
situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the
incumbent. Six months before the next election, he resigns and is twice elected
thereafter. Can he run again for mayor in the next election.
Yes, because although he has already first served as mayor by succession and subsequently
resigned from office before the full term expired, he has not actually served three full terms in all
for the purpose of applying the term limit. Under Art. X, 8, voluntary renunciation of the office
is not considered as an interruption in the continuity of his service for the full term only if the
term is one "for which he was elected. Since A is only completing the service of the term for
which the deceased and not he was elected. A cannot be considered to have completed one
term. His resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for
misconduct for a total of 1 year. f he is twice reelected after that, can he run for one more term
in the next election?
Yes, because he has served only two full terms successively.
n both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he has fully served three
consecutive terms. n the first case, even if the local official is considered to have served three
full terms notwithstanding his resignation before the end of the first term, the fact remains that
he has not been elected three times. n the second case, the local official has been elected
three consecutive times, but he has not fully served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total
failure of the two conditions to concur for the purpose of applying Art. X 8. Suppose he is twice
elected after that term, is he qualified to run again in the next election?
Yes, because he was not elected to the office of the mayor in the first term but simply found
himself thrust into it by operation of law. Neither had he served the full term because he only
continued the service, interrupted by the death , of the deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to
run a third time for reelection would be not only to falsify reality but also to unduly restrict the
right of the people to choose whom they wish to govern them. f the vice-mayor turns out to be
a bad mayor, the people can remedy the situation by simply not reelecting him for another
term. But if, on the other hand, he proves to be a good mayor, there will be no way the people
can return him to office (even if it is just the third time he is standing for reelection) if his service
of the first term is counted as one of the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
monopoly of political power may bring about, care should be taken that their freedom of choice
is not unduly curtailed.
HEREFORE, the petition is DSMSSED.
SO ORDERED.

SECOND DVSON
G.R. No. 130872. March 2, 1999]
FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs. SANDIGANBAYAN and
PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N
BELLOSILLO, J.:
FRANCSCO M. LECAROZ and LENLE LECAROZ, father and son, were convicted by the
Sandiganbayan of thirteen (13) counts of estafa through falsification of public
documents.
[1]
They now seek a review of their conviction as they insist on their innocence.
Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while
his son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay
(KB) of Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its
Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays.
n the 1985 election for the Kabataang Barangay Jowil Red
[2]
won as KB Chairman of
Barangay Matalaba, Santa Cruz. Parenthetically, Lenlie Lecaroz did not run as candidate in this
electoral exercise as he was no longer qualified for the position after having already passed the
age limit fixed by law.
Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as
member of the Sangguniang Bayan of Santa Cruz representing the KBs of the
municipality. mee Marcos-Manotoc, then the National Chairperson of the organization, sent a
telegram to Red confirming his appointment and advising him further that copies of his
appointment papers would be sent to him in due time through the KB Regional Office.
[3]
Red
received the telegram on 2 January 1986 and showed it immediately to Mayor Francisco M.
Lecaroz.
On 7 January 1986, armed with the telegram and intent on assuming the position of
sectoral representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon
the invitation of one of its members, Kagawad Rogato Lumawig. n that meeting, Mayor
Francisco M. Lecaroz informed Red that he could not yet sit as member of the municipal council
until his appointment had been cleared by the Governor of Marinduque. Nonetheless, the
telegram was included in the agenda as one of the subjects discussed in the meeting.
Red finally received his appointment papers sometime in January 1986.
[4]
But it was only on
23 April 1986, when then President Corazon C. Aquino was already in power,
[5]
that he
forwarded these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed
by the mayor to sit as sectoral representative in the Sanggunian.
Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie
Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period
16 January 1986 to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986
and then authorized someone else to sign all the other payrolls for the
succeeding quincenas and claim the corresponding salaries in his behalf.
On 25 October 1989, or three (3) years and nine (9) months from the date he received his
appointment papers from President Marcos, Red was finally able to secure from the Aquino
Administration a confirmation of his appointment as KB Sectoral Representative to the
Sanggunian Bayan of Santa Cruz.
Subsequently, Red filed with the Office of the Ombudsman several criminal complaints
against Mayor Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials
to let him assume the position of KB sectoral representative. After preliminary investigation, the
Ombudsman filed with the Sandiganbayan thirteen (13) nformations for estafa through
falsification of public documents against petitioners, and one (1) nformation for violation of Sec.
3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz
alone.
On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused
guilty on all counts of estafa through falsification of public documents and sentenced each of
them to -
a) imprisonment for an indeterminate period ranging from a minimum of FVE (5)
YEARS, ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a
maximum of TEN (10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF
THE ABOVE CASES;
b) a fine in the amount of FVE THOUSAND PESOS (P5,000) FOR EACH OF THE
ABOVE CASES or a total of SXTY-FVE THOUSAND PESOS (P65,000), and
c) perpetual special disqualification from public office in accordance with Art. 214 of
the Revised Penal Code.
x x x (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SX
HUNDRED SEVENTY-FVE PESOS (P23,675), the amount unlawfully obtained, to the
Municipality of Sta. Cruz, Marinduque in restitution.
The Sandiganbayan ruled that since Red was elected president of the KB and took his oath
of office sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption
of the KB presidency upon the expiration of the term of accused Lenlie Lecaroz was
valid. Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last
Sunday of November 1985 and, as such, was no longer the legitimate representative of the
youth sector in the municipal council of Sta. Cruz, Marinduque.
n convicting both accused on the falsification charges, the Sandiganbayan elucidated -
x x x x when, therefore, accused MAYOR FRANCSCO LECAROZ entered the name of his son,
the accused LENLE LECAROZ, in the payroll of the municipality of Sta. Cruz for the payroll
period starting January 15, 1986, reinstating accused LENLE LECAROZ to his position in the
Sangguniang Bayan, he was deliberately stating a falsity when he certified that LENLE
LECAROZ was a member of the Sangguniang Bayan. The fact is that even accused LENLE
LECAROZ himself no longer attended the sessions of the Sangguniang Bayan of Sta. Cruz, and
starting with the payroll for January 16 to 31, 1986, did not personally pick up his salaries
anymore.
The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which
reads:
Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. - The
penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public
officer, employee, or notary public who, taking advantage of his official position, shall falsify a
document by committing any of the following acts: x x x x 4. Making untruthful statements in a
narration of facts.
x x x x
Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.
Likewise from these acts of falsification, his son, accused LENLE LECAROZ, was able to draw
salaries from the municipality to which he was not entitled for services he had admittedly not
rendered. This constitutes Estafa x x x x the deceit being the falsification made, and the
prejudice being that caused to the municipality of Sta. Cruz, Marinduque for having paid salaries
to LENLE LECAROZ who was not entitled thereto.
Conspiracy was alleged in the nformations herein, and the Court found the allegation
sufficiently substantiated by the evidence presented.
There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son
LENLE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet he did so. He
could not have had any other purpose than to enable his son LENLE to draw salaries
thereby. This conclusion is inescapable considering that the very purpose of a payroll is
precisely that -- to authorize the payment of salaries. And LENLE LECAROZ did his part by
actually drawing the salaries during the periods covered, albeit through another person whom
he had authorized.
By the facts proven, there was conspiracy in the commission of Estafa between father and son.
However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019, the
Sandiganbayan acquitted Mayor Francisco Lecaroz. t found that Red was neither authorized to
sit as member of the SB because he was not properly appointed thereto nor had he shown to
the mayor sufficient basis for his alleged right to a seat in the municipal council. On this basis,
the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to
assume the position of Kagawad.
On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision
filed by the accused. This prompted herein petitioners to elevate their cause to us charging that
the Sandiganbayan erred:
First, in holding that Red had validly and effectively assumed the office of KB Federation
President by virtue of his oath taken before then Assemblywoman Carmencita Reyes on 27
September 1985, and in concluding that the tenure of accused Lenlie Lecaroz as president of
the KB and his coterminous term of office as KB representative to the SB had accordingly
expired;
Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth
representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer
occupy the office, even in a holdover capacity, despite the vacancy therein;
Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation
president had expired, in holding that by reason thereof accused Lenlie Lecaroz became legally
disqualified from continuing in office as KB Sectoral Representative to the SB even in a
holdover capacity;
Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the
provisions of the pertinent Ministry of nterior and Local Governments (MLG) interpretative
circulars, accused Lenlie Lecaroz was legally entitled and even mandated to continue in office in
a holdover capacity;
Fifth, in holding that the accused had committed the crime of falsification within the
contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa
of which they had been convicted required criminal intent and malice as essential elements;
Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold
over, still the trial court erred in not holding - considering the difficult legal questions involved -
that the accused acted in good faith and committed merely an error of judgment, without malice
and criminal intent; and,
Seventh, in convicting the accused for crimes committed in a manner different from that
alleged in the nformation under which the accused were arraigned and tried.
The petition is meritorious. The basic propositions upon which the Sandiganbayan
premised its conviction of the accused are: (a) although Jowil Red was duly elected KB
Chairman he could not validly assume a seat in the Sanggunian as KB sectoral representative
for failure to show a valid appointment; and, (b) Lenlie Lecaroz who was the incumbent KB
representative could not hold over after his term expired because pertinent laws do not provide
for holdover.
To resolve these issues, it is necessary to refer to the laws on the terms of office of KB
youth sectoral representatives to the SB and of the KB Federation Presidents. Section 7 of BP
Blg. 51 and Sec. 1 of the KB Constitution respectively provide -
Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on
the first Monday of March 1980.
n the case of the members of the sanggunian representing the association of barangay
councils and the president of the federation of kabataang barangay, their terms of office shall be
coterminous with their tenure is president of their respective association and federation .
x x x x
Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the
last Sunday of November 1985 or such time that the newly elected officers shall have qualified
and assumed office in accordance with this Constitution.
The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB
since he did not present an authenticated copy of his appointment papers; neither did he take a
valid oath of office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of
the SB although in a holdover capacity since his term had already expired. The Sandiganbayan
however rejected this postulate declaring that the holdover provision under Sec. 1 quoted above
pertains only to positions in the KB, clearly implying that since no similar provision is found in
Sec. 7 of B.P. Blg. 51, there can be no holdover with respect to positions in the SB.
We disagree with the Sandiganbayan. The concept of holdover when applied to a public
officer implies that the office has a fixed term and the incumbent is holding onto the succeeding
term.
[6]
t is usually provided by law that officers elected or appointed for a fixed term shall
remain in office not only for that term but until their successors have been elected and
qualified. Where this provision is found, the office does not become vacant upon the expiration
of the term if there is no successor elected and qualified to assume it, but the present incumbent
will carry over until his successor is elected and qualified, even though it be beyond the term
fixed by law.
[7]

n the instant case, although BP Blg. 51 does not say that a Sanggunian member can
continue to occupy his post after the expiration of his term in case his successor fails to qualify,
it does not also say that he is proscribed from holding over. Absent an express or implied
constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his
successor is appointed or chosen and has qualified.
[8]
The legislative intent of not allowing
holdover must be clearly expressed or at least implied in the legislative enactment,
[9]
otherwise it
is reasonable to assume that the law-making body favors the same.
ndeed, the law abhors a vacuum in public offices,
[10]
and courts generally indulge in the
strong presumption against a legislative intent to create, by statute, a condition which may result
in an executive or administrative office becoming, for any period of time, wholly vacant or
unoccupied by one lawfully authorized to exercise its functions.
[11]
This is founded on obvious
considerations of public policy, for the principle of holdover is specifically intended to prevent
public convenience from suffering because of a vacancy
[12]
and to avoid a hiatus in the
performance of government functions.
[13]

The Sandiganbayan maintained that by taking his oath of office before Assemblywoman
Reyes in 1985 Red validly assumed the presidency of the KB upon the expiration of the term of
Lenlie Lecaroz. t should be noted however that under the provisions of the Administrative
Code then in force, specifically Sec. 21, Art. V thereof, members of the then Batasang
Pambansa were not authorized to administer oaths. t was only after the approval of RA No.
6733
[14]
on 25 July 1989 and its subsequent publication in a newspaper of general circulation
that members of both Houses of Congress were vested for the first time with the general
authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Jowil
Red before a member of the Batasang Pambansa who had no authority to administer oaths,
was invalid and amounted to no oath at all.
To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to
the full investiture with the office.
[15]
Only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete. Until then, he has
none at all. And for as long as he has not qualified, the holdover officer is the rightful
occupant. t is thus clear in the present case that since Red never qualified for the post,
petitioner Lenlie Lecaroz remained KB representative to the Sanggunian, albeit in a carry over
capacity, and was in every aspect a de jure officer,
[16]
or at least a de facto officer
[17]
entitled to
receive the salaries and all the emoluments appertaining to the position. As such, he could not
be considered an intruder and liable for encroachment of public office.
[18]

On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were
convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4,
of The Revised Penal Code, are intentional felonies for which liability attaches only when it is
shown that the malefactors acted with criminal intent or malice.
[19]
f what is proven is mere
judgmental error on the part of the person committing the act, no malice or criminal intent can
be rightfully imputed to him. Was criminal intent then demonstrated to justify petitioners'
conviction? t does not so appear in the case at bar.
Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit
reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a
general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer
from felonious responsibility. The exception of course is neglect in the discharge of a duty or
indifference to consequences, which is equivalent to a criminal intent, for in this instance, the
element of malicious intent is supplied by the element of negligence and imprudence
[20]
n the
instant case, there are clear manifestations of good faith and lack of criminal intent on the part
of petitioners.
First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986,
what he presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by mee
Marcos-Manotoc informing him of his supposed appointment to the SB, together with a
photocopy of a "Mass Appointment." Without authenticated copies of the appointment papers,
Red had no right to assume office as KB representative to the Sanggunian, and petitioner
Mayor Lecaroz had every right to withhold recognition, as he did, of Red as a member of the
Sanggunian.
Second. t appears from the records that although Red received his appointment papers
signed by President Marcos in January 1986, he forwarded the same to Mayor Francisco
Lecaroz only on 23 April 1986 during which time President Marcos had already been deposed
and President Aquino had already taken over the helm of government. On 25 March 1986 the
Freedom Constitution came into being providing in Sec. 2 of Art. thereof that -
Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by. proclamation or executive order or upon the
designation of their successors if such appointment is made within a period of one (1) year from
February 26, 1986 (underscoring supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the
provincial governor forwarded the papers of Jowil Red to then Minister of nterior and Local
Government Aquilino Pimentel, Jr., requesting advice on the validity of the appointment signed
by former President Marcos. The response was the issuance of MLG Provincial Memorandum-
Circular No. 86-02
[21]
and Memorandum-Circular No. 86-17
[22]
stating that -
PROVNCAL MEMORANDUM-CRCULAR NO. 86-02
2. That newly elected KB Federation Presidents, without their respective authenticated
appointments from the president, cannot, in any way, represent their associations in any
sangguniang bayan/sangguniang panlalawigan, as the case may be, although they are still
considered presidents of their federations by virtue of the July 1985 elections.
MEMORANDUM CRCULAR NO. 86-17
t is informed, however, that until replaced by the Office of the President or by this Ministry the
appointive members of the various Sangguniang Bayan, Sangguniang Panlunsod, and the
Sangguniang Panlalawigan shall continue to hold office and to receive compensation due them
under existing laws, rules and regulations.
The pertinent provisions of the Freedom Constitution and the implementing MLG Circulars
virtually confirmed the right of incumbent KB Federation Presidents to hold and maintain their
positions until duly replaced either by the President herself or by the nterior Ministry. Explicit
therein was the caveat that newly elected KB Federation Presidents could not assume the right
to represent their respective associations in any Sanggunian unless their appointments were
authenticated by then President Aquino herself. Truly, prudence impelled Mayor Lecaroz to
take the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian.
Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice
of Presidents Macapagal, Marcos and Aquino concerning the doctrine of holdover. This
consistently expressed the view espoused by the executive branch for more than thirty (30)
years that the mere fixing of the term of office in a statute without an express prohibition against
holdover is not indicative of a legislative intent to prohibit it, in light of the legal principle that just
as nature abhors a vacuum so does the law abhor a vacancy in the government.
[23]
Reliance by
petitioners on these opinions, as well as on the pertinent directives of the then Ministry of
nterior and Local Government, provided them with an unassailable status of good faith in
holding over and acting on such basis; and,
Fourth. t is difficult to accept that a person, particularly one who is highly regarded and
respected in the community, would deliberately blemish his good name, and worse, involve his
own son in a misconduct for a measly sum of P23,675.00, such as this case before us. As aptly
deduced by Justice Del Rosario
[24]

f were to commit a crime, would involve my son in it? And if were a town mayor, would
ruin my name for the measly sum of P1,894.00 a month? My natural instinct as a father to
protect my own son and the desire, basic in every man, to preserve one's honor and reputation
would suggest a resounding NO to both questions. But the prosecution ventured to prove in
these thirteen cases that precisely because they were father and son and despite the relatively
small amount involved, accused Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to
falsify several municipal payrolls for the purpose of swindling their own town of the amount
of P1,894.00 a month, and the majority has found them guilty. find discomfort with this verdict
basically for the reason that there was no criminal intent on their part to falsify any document or
to swindle the government.
The rule is that any mistake on a doubtful or difficult question of law may be the basis of
good faith.
[25]
n Cabungcal v. Cordova
[26]
we affirmed the doctrine that an erroneous
interpretation of the meaning of the provisions of an ordinance by a city mayor does not amount
to bad faith that would entitle an aggrieved party to damages against that official. We reiterated
this principle in abutol v. Pascual
[27]
which held that public officials may not be liable for
damages in the discharge of their official functions absent any bad faith. Sanders v.
'eridiano II
[28]
expanded the concept by declaring that under the law on public officers, acts
done in the performance of official duty are protected by the presumption of good faith.
n ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two
(2) circumstances which purportedly indicated criminal intent. t pointed out that the name of
accused Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which
meant that his term had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor
Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next
twelve and a half (12 -1/2) months was for no other purpose than to enable him to draw salaries
from the municipality.
[29]
There is however no evidence, documentary or otherwise, that Mayor
Francisco Lecaroz himself caused the name of Lenlie Lecaroz to be dropped from the payroll for
the first quincena of January 1986. On the contrary, it is significant that while Lenlie Lecaroz'
name did not appear in the payroll for the first quincena of January 1986, yet, in the payroll for
the next quincena accused Lenlie Lecaroz was paid for both the first and
second quincenas, and not merely for the second half of the month which would have been the
case if he was actually "dropped" from the payroll for the first fifteen (15) days and then
"reinstated" in the succeeding payroll period, as held by the court a quo.
From all indications, it is possible that the omission was due to the inadequate
documentation of Red's appointment to and assumption of office, or the result of a mere clerical
error which was later rectified in the succeeding payroll. This however cannot be confirmed by
the evidence at hand. But since a doubt is now created about the import of such omission, the
principle of equipoise should properly apply. This rule demands that all reasonable doubt
intended to demonstrate error and not a crime should be resolved in favor of the accused. f the
inculpatory facts and circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused and the other with his guilt, then the evidence
does not fulfill the test of moral certainty and is not sufficient to support a conviction.
[30]

Petitioners have been convicted for falsification of public documents through an untruthful
narration of facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be
established, the following elements must concur: (a) the offender makes in a document
statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of
the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the
perversion of truth in the narration of facts was made with the wrongful intent of injuring a third
person.
The first and third elements of the offense have not been established in this case. n
approving the payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed
uniformly-worded certifications thus -
hereby certify on my official oath that the above payroll is correct, and that the services above
stated have been duly rendered. Payment for such services is also hereby approved from the
appropriations indicated.
When Mayor Lecaroz certified to the correctness of the payroll, he was making not a
narration of facts but a conclusion of law expressing his belief that Lenlie Lecaroz was legally
holding over as member of the Sanggunian and thus entitled to the emoluments attached to the
position. This is an opinion undoubtedly involving a legal matter, and any "misrepresentation" of
this kind cannot constitute the crime of false pretenses.
[31]
n People v. Yanza
[32]
we ruled -
Now then, considering that when defendant certified she was eligible for the position, she
practically wrote a conclusion of law which turned out to be inexact or erroneous - not entirely
groundless - we are all of the opinion that she may not be declared guilty of falsification,
specially because the law which she has allegedly violated (Art. 171, Revised Penal Code, in
connection with other provisions), punishes the making of untruthful statements in a narration of
facts - emphasis on facts x x x x Unfortunately, she made a mistake of judgment; but she could
not be held thereby to have intentionally made a false statement of fact in violation of Art. 171
above-mentioned.
The third element requiring that the narration of facts be absolutely false is not even
adequately satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a
holdover member of the Sanggunian was not entirely bereft of basis, anchored as it was on the
universally accepted doctrine of holdover. La mera inexactitude no es bastante para integrar
este delito.
[33]
f the statements are not altogether false, there being some colorable truth in
them, the crime of falsification is deemed not to have been committed.
Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not
proved in this case. The court a quo used as indication of conspiracy the fact that the accused
Mayor certified the payrolls authorizing payment of compensation to his son Lenlie Lecaroz and
that as a consequence thereof the latter collected his salaries. These are not legally acceptable
indicia, for they are the very same acts alleged in the nformations as constituting the crime of
estafa through falsification. They cannot qualify as proof of complicity or unity of criminal
intent. Conspiracy must be established separately from the crime itself and must meet the
same degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be
established by direct evidence, for it may be inferred from the conduct of the accused before,
during and after the commission of the crime, all taken together however, the evidence must
reasonably be strong enough to show community of criminal design.
[34]

Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress
its finding of conspiracy, the Sandiganbayan stressed that the two accused are father and
son. Granting that this is not even ad hominem, we are unaware of any presumption in law that
a conspiracy exists simply because the conspirators are father and son or related by blood.
HEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and
Resolution of 1 October 1997 of the Sandiganbayan are REVERSED and SET ASDE, and
petitioners FRANCSCO M. LECAROZ and LENLE LECAROZ are ACQUTTED of all the
thirteen (13) counts of estafa through falsification of public documents (Crim. Cases Nos.
13904-13916). The bail bonds posted for their provisional liberty are cancelled and
released. Costs de oficio.
SO ORDERED.

EN BANC
G.R. No. 1412. November 12, 2002]
VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner, vs. THE
COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA)
of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID
HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA
Chairman and Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA
Secretary Punong Bgy. CARLOS ABALLA, JR. respondents.
G.R. No. 14683. November 12, 2002]
VICENTE S. SANDOVAL, JR., petitioner, vs. THE COMMISSION ON
ELECTIONS, respondent.
G.R. Nos. 1083-84. November 12, 2002]
MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE,
SR., petitioners, vs. THE COMMISSION ON ELECTIONS, and EDARD S.
HAGEDORN, respondents.
D E C I S I O N
CARPIO, J.:
The Case
Before us are consolidated petitions for certiorari
[1]
seeking the reversal of the resolutions
issued by the Commission on Elections ("COMELEC for brevity) in relation to the recall election
for mayor of Puerto Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the
Puerto Princesa convened themselves into a Preparatory Recall Assembly ("PRA for brevity) at
the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened
to initiate the recall
[2]
of Victorino Dennis M. Socrates ("Socrates for brevity) who assumed
office as Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated
Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of
the PRA.
On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution for brevity)
which declared its loss of confidence in Socrates and called for his recall. The PRA requested
the COMELEC to schedule the recall election for mayor within 30 days from receipt of the
Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-
010 (RC), to nullify and deny due course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc
[3]
promulgated a resolution dismissing for lack
of merit Socrates' petition. The COMELEC gave due course to the Recall Resolution and
scheduled the recall election on September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing
the calendar of activities and periods of certain prohibited acts in connection with the recall
election. The COMELEC fixed the campaign period from August 27, 2002 to September 5,
2002 or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn for brevity) filed his certificate of
candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo for brevity) and Merly E. Gilo ("Gilo for
brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify
Hagedorn from running in the recall election and to cancel his certificate of candidacy. On
August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave for brevity) filed a petition-in-
intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a
certain Genaro V. Manaay filed another petition, docketed as SPA No. 02-539, against
Hagedorn alleging substantially the same facts and involving the same issues. The petitions
were all anchored on the ground that "Hagedorn is disqualified from running for a fourth
consecutive term, having been elected and having served as mayor of the city for three (3)
consecutive full terms immediately prior to the instant recall election for the same post.
Subsequently, SPA Nos. 02-492 and 02-539 were consolidated.
n a resolution promulgated on September 20, 2002, the COMELEC's First
Division
[4]
dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared
Hagedorn qualified to run in the recall election. The COMELEC also reset the recall election
from September 7, 2002 to September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a resolution denying the
motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring
Hagedorn qualified to run in the recall election.
Hence, the instant consolidated petitions.
.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14,
2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled
the recall election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall
Resolution. Socrates cites the following circumstances as legal infirmities attending the
convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA
were notified of the meeting to adopt the resolution; (2) the proof of service of notice was
palpably and legally deficient; (3) the members of the PRA were themselves seeking a new
electoral mandate from their respective constituents; (4) the adoption of the resolution was
exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a
manner that violated his and the public's constitutional right to information.
.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated
August 21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the
candidates only a ten-day campaign period. He prayed that the COMELEC be enjoined from
holding the recall election on September 7, 2002 and that a new date be fixed giving the
candidates at least an additional 15 days to campaign.
n a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from
implementing Resolution No. 5673 insofar as it fixed the date of the recall election on
September 7, 2002. The Court directed the COMELEC to give the candidates an additional
fifteen 15 days from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708
giving the candidates an additional 15 days from September 7, 2002 within which to
campaign. Thus, the COMELEC reset the recall election to September 24, 2002.
.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20,
2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to
run for mayor in the recall election. They likewise prayed for the issuance of a temporary
restraining order to enjoin the proclamation of the winning candidate in the recall election.
Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's
qualification to run for mayor in the recall election despite the constitutional and statutory
prohibitions against a fourth consecutive term for elective local officials.
n a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from
proclaiming any winning candidate in the recall election until further orders from the
Court. Petitioners were required to post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an attached petition for
intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave.
n the meantime, Hagedorn garnered the highest number of votes in the recall election with
20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241
votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the
winning candidate and to allow him to assume office to give effect to the will of the electorate.
On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for
intervention.
The Issues
The issues for resolution of the Court are:
1. n G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in
giving due course to the Recall Resolution and scheduling the recall election for
mayor of Puerto Princesa.
2. n G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall
election of Puerto Princesa on September 24, 2002.
n G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of
discretion in fixing a campaign period of only 10 days has become moot. Our Resolution of
September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15 days for the
campaign period as prayed for by petitioner.
irst Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in
upholding the Recall Resolution despite the absence of notice to 130 PRA members and the
defective service of notice to other PRA members. The COMELEC, however, found that
"On various dates, in the month of June 2002, the proponents for the Recall of incumbent
City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the
members thereof pursuant to Section 70 of the Local Government Code. Copies of the
said notice are in Volumes and entitled Notices to PRA. Likewise, Proof of Service for
each of the said notices were attached to the Petition and marked as Annex "G of
Volumes and of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay
Hall. Photos establishing the same were attached to the Petition and marked as Annex
"H. The proponents likewise utilized the broadcast mass media in the dissemination of the
convening of the PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list
of 25 names of provincial elective officials, print and broadcast media practitioners, PNP
officials, COMELEC city, regional and national officials, and DLG officials].
x x x
The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002
certified that upon a 'thorough and careful verification of the signatures appearing in PRA
Resolution 01-02, x x x the majority of all members of the PRA concerned approved said
resolution.' She likewise certified 'that not a single member/signatory of the PRA
complained or objected as to the veracity and authenticity of their signatures.'
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his ndorsement
dated 10 July 2002, stated, 'upon proper review, all documents submitted are found in
order.'
The Acting Director V, Region V, in his study dated 30 July 2002 submitted the following
recommendations:
'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and
substance. That the PRA was validly constituted and that the majority of all members thereof
approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.'
x x x .
This Court is bound by the findings of fact of the COMELEC on matters within the
competence and expertise of the COMELEC, unless the findings are patently
erroneous. nalonzo v. COLC,
[5]
which also dealt with alleged defective service of notice
to PRA members, we ruled that
"Needless to state, the issue of propriety of the notices sent to the PRA members is factual
in nature, and the determination of the same is therefore a function of the COMELEC. n
the absence of patent error, or serious inconsistencies in the findings, the Court should not
disturb the same. The factual findings of the COMELEC, based on its own assessments
and duly supported by gathered evidence, are conclusive upon the court, more so, in the
absence of a substantiated attack on the validity of the same.
n the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact
are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt the Recall
Resolution on July 2, 2002 because a majority of PRA members were seeking a new electoral
mandate in the barangay elections scheduled on July 15, 2002. This argument deserves scant
consideration considering that when the PRA members adopted the Recall Resolution their
terms of office had not yet expired. They were all de jure sangguniang barangay members with
no legal disqualification to participate in the recall assembly under Section 70 of the Local
Government Code.
Socrates bewails that the manner private respondents conducted the PRA proceedings
violated his constitutional right to information on matters of public concern. Socrates, however,
admits receiving notice of the PRA meeting and of even sending his representative and counsel
who were present during the entire PRA proceedings. Proponents of the recall election
submitted to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal
of the PRA assembly, attendance sheets, notices sent to PRA members, and authenticated
master list of barangay officials in Puerto Princesa. Socrates had the right to examine and copy
all these public records in the official custody of the COMELEC. Socrates, however, does not
claim that the COMELEC denied him this right. There is no legal basis in Socrates' claim that
respondents violated his constitutional right to information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the
validity of the Recall Resolution and in scheduling the recall election on September 24, 2002.
Second Issue: Hagedorn's quaIification to run for mayor
in the recaII eIection of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8, Article X of the
Constitution, which states:
"Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term for
which he was elected.
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as
the Local Government Code, which provides:
"Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official was elected.
These constitutional and statutory provisions have two parts. The first part provides that an
elective local official cannot serve for more than three consecutive terms. The clear intent is
that only consecutive terms count in determining the three-term limit rule. The second part
states that voluntary renunciation of office for any length of time does not interrupt the continuity
of service. The clear intent is that involuntary severance from office for any length of
time interrupts continuity of service and prevents the service before and after the interruption
from being joined together to form a continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular election for the
same office following the end of the third consecutive term. Any subsequent election, like a
recall election, is no longer covered by the prohibition for two reasons. First, a subsequent
election like a recall election is no longer an immediate reelection after three consecutive
terms. Second, the intervening period constitutes an involuntary interruption in the continuity of
service.
When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether
there would be "no immediate reelection after three terms. This is clear from the following
deliberations of the Constitutional Commission:
"THE PRESDENT: The Acting Floor Leader is recognized.
MR. ROMULO:
[6]
We are now ready to discuss the two issues, as indicated on the
blackboard, and these are Alternative No. where there is no further election after a total
of three terms and Alternative No. 2 where there is no immediate reelection after three
successive terms.
[7]

The Journal of the Constitutional Commission reports the following manifestation on the
term of elective local officials:
"MANFESTATON OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1)
Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No.
2 (no immediate reelection after three successive terms).
[8]

The framers of the Constitution used the same "no immediate reelection question in voting for
the term limits of Senators
[9]
and Representatives of the House.
[10]

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a subsequent
reelection for a fourth term as long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run
in any other subsequent election involving the same term of office. What the Constitution
prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently
show that the prohibited election referred to by the framers of the Constitution is the immediate
reelection after the third term, not any other subsequent election.
f the prohibition on elective local officials is applied to any election within the three-year full
term following the three-term limit, then Senators should also be prohibited from running in any
election within the six-year full term following their two-term limit. The constitutional provision on
the term limit of Senators is worded exactly like the term limit of elective local officials, thus:
"No Senator shall serve for more than two consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.
[11]

n the debates on the term limit of Senators, the following exchange in the Constitutional
Convention is instructive:
"GASCON:
[12]
would like to ask a question with regard to the issue after the second
term. We will allow the Senator to rest for a period of time before he can run again?
DAVDE:
[13]
That is correct.
GASCON: And the question that we left behind before - if the Gentleman will
remember - was: How long will that period of rest be? Will it be one election which is three
years or one term which is six years?
DAVDE: f the Gentleman will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether such
election will be on the third or on the sixth year thereafter, this particular member of the
Senate can run. So, it is not really a period of hibernation for six years. That was the
Committee's stand.
GASCON: So, effectively, the period of rest would be three years at the
least.
[14]
(Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run after only three
years
[15]
following his completion of two terms. The framers expressly acknowledged that the
prohibited election refers only to the immediate reelection, and not to any subsequent election,
during the six-year period following the two term limit. The framers of the Constitution did not
intend "the period of rest of an elective official who has reached his term limit to be the full
extent of the succeeding term.
n the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not
an immediate reelection after his third consecutive term which ended on June 30, 2001. The
immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular
elections in 2001. Hagedorn did not seek reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections
and served in full his three consecutive terms as mayor of Puerto Princesa. Under the
Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the
2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who
had reached the maximum three-term limit, from running for a fourth consecutive term as
mayor. Thus, Hagedorn did not run for mayor in the 2001 elections.
[16]
Socrates ran and won as
mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June
30, 2001, he became a private citizen until the recall election of September 24, 2002 when he
won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto
Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This
period is clearly an interruption in the continuity of Hagedorn's service as mayor, not because of
his voluntary renunciation, but because of a legal prohibition. Hagedorn's three consecutive
terms ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June
30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One
cannot stitch together Hagedorn's previous three-terms with his new recall term to make the
recall term a fourth consecutive term because factually it is not. An involuntary interruption
occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive
character of Hagedorn's service as mayor.
n Lonzanida v. Comelec,
[17]
the Court had occasion to explain interruption of continuity of
service in this manner:
"x x x The second sentence of the constitutional provision under scrutiny states,
"Voluntary renunciation of office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which he was elected. The
clear intent of the framers of the constitution to bar any attempt to circumvent the three-
term limit by a voluntary renunciation of office and at the same time respect the people's
choice and grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three-term limit; conversely, involuntary severance from office for
any length of time short of the full term provided by law amounts to an interruption
of continuity of service. x x x. (Emphasis supplied)
n Hagedorn's case, the nearly 15-month period he was out of office, although short of a full
term of three years, constituted an interruption in the continuity of his service as mayor. The
Constitution does not require the interruption or hiatus to be a full term of three years. The clear
intent is that interruption "for any length of time, as long as the cause is involuntary, is
sufficient to break an elective local official's continuity of service.
n the recent case of dormeo v. Comelec and Talaga,
[18]
a unanimous Court reiterated
the rule that an interruption consisting of a portion of a term of office breaks the continuity of
service of an elective local official. n dormeo, Ramon Y. Talaga, Jr. had served two
consecutive full terms as mayor of Lucena City. n his third bid for election as mayor in 1998,
Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won
and served the unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga
ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor,
petitioned for Talaga's disqualification on the ground that Talaga had already served three
consecutive terms as mayor.
Thus, the issue in dormeo was whether Talaga's recall term was a continuation of his
previous two terms so that he was deemed to have already served three consecutive terms as
mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the
period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the
continuity of his service as mayor. Talaga's recall term as mayor was not consecutive to his
previous two terms because of this interruption, there having been a break of almost two years
during which time Tagarao was the mayor.
We held in dormeo that the period an elective local official is out of office interrupts the
continuity of his service and prevents his recall term from being stitched together as a seamless
continuation of his previous two consecutive terms. n the instant case, we likewise hold that
the nearly 15 months Hagedorn was out of office interrupted his continuity of service and
prevents his recall term from being stitched together as a seamless continuation of his previous
three consecutive terms. The only difference between dormeo and the instant case is the
time of the interruption. n dormeo, the interruption occurred after the first two consecutive
terms. n the instant case, the interruption happened after the first three consecutive terms. n
both cases, the respondents were seeking election for a fourth term.
n dormeo, the recall term of Talaga began only from the date he assumed office after
winning the recall election. Talaga's recall term did not retroact to include the tenure in office of
his predecessor. f Talaga's recall term was made to so retroact, then he would have been
disqualified to run in the 2001 elections because he would already have served three
consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not
serve the full term of his predecessor but only the unexpired term. The period of time prior to
the recall term, when another elective official holds office, constitutes an interruption in
continuity of service. Clearly, dormeo established the rule that the winner in the recall
election cannot be charged or credited with the full term of three years for purposes of
counting the consecutiveness of an elective official's terms in office.
n the same manner, Hagedorn's recall term does not retroact to include the tenure in office
of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election
if the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute
a fourth consecutive term. But to consider Hagedorn's recall term as a full term of three years,
retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24,
2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of
office which historically and factually are not.
Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that
unduly curtails the freedom of the people to choose their leaders through popular elections. The
concept of term limits is in derogation of the sovereign will of the people to elect the leaders of
their own choosing. Term limits must be construed strictly to give the fullest possible effect to
the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec:
"Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals
that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. ndeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years
there should be no further reelection for local and legislative officials. Instead, they
adopted the alternative proposal of Commissioner Christian onsod that such
officials be simply barred from running for the same position in the succeeding
election following the expiration of the third consecutive term. Monsod warned
against 'prescreening candidates [from] whom the people will choose' as a result of the
proposed absolute disqualification, considering that the draft constitution contained
provisions 'recognizing people's power.'
[19]
(Emphasis supplied)
A necessary consequence of the interruption of continuity of service is the start of a new
term following the interruption. An official elected in recall election serves the unexpired term of
the recalled official. This unexpired term is in itself one term for purposes of counting the three-
term limit. This is clear from the following discussion in the Constitutional Commission:
"SUAREZ:
[20]
For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one term? So, half a
term, which is actually the correct statement, plus one term would disqualify the Senator
concerned from running? s that the meaning of this provision on disqualification, Madam
President?
DAVDE: Yes, because we speak of 'term,' and if there is a special election, he will serve
only for the unexpired portion of that particular term plus one more term for the Senator
and two more terms for the Members of the Lower House.
[21]

Although the discussion referred to special elections for Senators and Representatives of
the House, the same principle applies to a recall election of local officials. Otherwise, an
elective local official who serves a recall term can serve for more than nine consecutive years
comprising of the recall term plus the regular three full terms. A local official who serves a recall
term should know that the recall term is in itself one term although less than three years. This is
the inherent limitation he takes by running and winning in the recall election.
n summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall
election for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three consecutive
terms as mayor which ended on June 30, 2001;
2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June
30, 2001 to September 24, 2002 during which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made
to retroact to June 30, 2001 to make a fourth consecutive term because factually the
recall term is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the right
of the electorate to choose their leaders.
HEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are
DSMSSED. The temporary restraining order issued by this Court on September 24, 2002
enjoining the proclamation of the winning candidate for mayor of Puerto Princesa in the recall
election of September 24, 2002 is lifted. No costs.
SO ORDERED.

G.R. No. 149736.December 17, 2002]
MENDOZA & IBARRA vs. COMELEC & ROMAN
EN BANC
GentIemen:
"uoted hereunder, for your information, is a resolution of this Court dated 17 DEC 2002.
G.R. No. 149736(elanio L. endoza and ario E. Ibarra, petitioners, vs. Commission
on Elections and Leonardo . Roman, respondents.)
For resolution is a petition for certiorari filed by petitioners Melanio L. Mendoza and
Mario E. barra, seeking to set aside the resolution of the Commission on Elections, dated
August 15, 2001, in EPC No. 2001-5 and to declare respondent Leonardo B. Roman's election
as governor of Bataan on May 14, 2001 as null and void for allegedly being contrary to Art. X,
8 of the Constitution, which provides that:
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.
After due deliberation, the Court voted 8 to 7 to DSMSS the petition:
VITUG, J., joined by YNARES-SANTAGO, J., voted to dismiss the petition.He contended that
as revealed by the records of the Constitutional Commission, the Constitution envisions a
continuous and an uninterrupted service for three full terms before the proscription
applies.Therefore, not being a full term, a recall term should not be counted or used as a basis
for the disqualification whether served prior (as in this case) or subsequent (as in
the Socrates case) to the nine-year, full three-term limit.
MENDOZA, J., in whose opinion QUSUMBNG, J. joined, voted to dismiss the petition on the
ground that, in accordance with the ruling inorja, Jr. v. COELEC, 295 SCRA 157
(1998); Arcos v. COELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COELEC,
311 SCRA 602 (1999); and Adormeo v. COELEC, G.R. No. 147927, Feb. 4, 2002, a term
during which succession to a local elective office takes place or a recall election is held should
not be counted in determining whether an elective local official has served more than three
consecutive terms.He argued that the Constitution does not prohibit elective local officials from
serving for more than three consecutive terms because, in fact, it excludes from the three-term
limit interruptions in the continuity of service, so long as such interruptions are not due to the
voluntary renunciation of the office by an incumbent.Hence, the period from June 28, 1994 to
June 30, 1995, during which respondent Leonardo B. Roman served as governor of Bataan by
virtue of a recall election held in 1993, should not be counted.Since on May 14, 2001
respondent had previously served as governor of Bataan for only two consecutive terms (1995-
1998 and 1998-2001), his election on that day was actually only his third term for the same
position.
PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition.He argued that a
recall term should not be considered as one full term, because a contrary interpretation would in
effect cut short the elected official's service to less than nine years and shortchange his
constituents.The desire to prevent monopoly of political power should be balanced against the
need to uphold the voters' obvious preference who, in the present case, is Roman who received
97 percent of the votes cast.He explained that, in Socrates, he also voted to affirm the clear
choice of the electorate, because in a democracy the people should, as much as legally
possible, be governed by leaders freely chosen by them in credible elections.He concluded that,
in election cases, when two conflicting legal positions are of almost equal weight, the scales of
justice should be tilted in favor of the people's overwhelming choice.
AZCUNA, J., joined by BELLOSLLO, J., also voted to dismiss, arguing that it is clear from the
constitutional provision that the disqualification applies only if the terms are consecutive and the
service is full and continuous.Hence, service for less than a term, except only in case of
voluntary renunciation, should not count to disqualify an elective local official from running for
the same position.This case is different from Socrates, where the full three consecutive terms
had been continuously served so that disqualification had clearly attached.
On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVDE, JR., C.J., and
AUSTRA-MARTNEZ, CORONA, and CALLEJO, SR., JJ. concurred, holds the view that the
recall term served by respondent Roman, comprising the period June 28, 1994 to June 30,
1995, should be considered as one term.Since he thereafter served for two consecutive terms
from 1995 to 1998 and from 1998 to 2001, his election on May 14, 2001 was actually his fourth
term and contravenes Art. X, 8 of the Constitution.For this reason, she voted to grant the
petition and to declare respondent's election on May 14, 2001 as null and void.
CARPIO, J., joined by CARPO MORALES, J., also dissented and voted to grant the petition.He
held that a recall term constitutes one term and that to totally ignore a recall term in determining
the three-term limit would allow local officials to serve for more than nine consecutive years
contrary to the manifest intent of the framers of the Constitution.He contended that respondent
Roman's election in 2001 cannot exempt him from the three-term limit imposed by the
Constitution.
HEREFORE, THE PETTON FOR CERTORAR S DSMSSED.

EN BANC
G.R. No. 14829 : December 10, 2003]
ARSENIO A. LATASA, !etitioner, vs. COMMISSION ON ELECTIONS, and ROMEO
SUNGA,Respondents.
D E C I S I O N
AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the
resolution issued by the First Division of the Commission on Elections (COMELEC) dated April
27, 2001 in SPA Case No. 01-059 entitled, Romeo . Sunga, Petitioner, versus Arsenio A.
Latasa, respondent, and the Resolution of the COMELEC en banc denying herein petitioners
Motion for Reconsideration. The assailed Resolution denied due course to the certificate of
candidacy of petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos
City, Davao del Sur Province in the May 14, 2001 elections, ordering that all votes cast in his
favor shall not be counted, and if he has been proclaimed winner, declaring said proclamation
null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in
the elections of 1992, 1995, and 1998. During petitioners third term,
the Municipality of Digos was declared a component city, to be known as the City of Digos. A
plebiscite conducted on September 8, 2000 ratified Republic Act No. 8798 entitled, An Act
Converting the unicipality of Digos, Davao del Sur Province into a Component City to be
known as the City of Digos or the Charter of the City of Digos. This event also marked the end
of petitioners tenure as mayor of theMunicipality of Digos. However, under Section 53, Article X
of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new
City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14,
2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had
already served for three consecutive terms as mayor of the Municipality of Digos and is now
running for the first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the
said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of
Candidacy and/ or For Disqualification
1
against petitioner Latasa. Respondent Sunga alleged
therein that petitioner falsely represented in his certificate of candidacy that he is eligible to run
as mayor of Digos City since petitioner had already been elected and served for three
consecutive terms as mayor from 1992 to 2001.
On March 5, 2001, petitioner Latasa filed his Answer,
2
arguing that he did not make any false
representation in his certificate of candidacy since he fully disclosed therein that he had served
as mayor of the Municipality of Digos for three consecutive terms. Moreover, he argued that this
fact does not bar him from filing a certificate of candidacy for the May 14, 2001 elections since
this will be the first time that he will be running for the post of city mayor.
Both parties submitted their position papers on March 19, 2001.
3

On April 27, 2001, respondent COMELECs First Division issued a Resolution, the dispositive
portion of which reads, as follows:
herefore, premises considered, the respondents certificate of candidacy should be cancelled
for being a violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local
Government Code of 1991.
4

Petitioner filed his Motion for Reconsideration dated May 4, 2001,
5
which remained unacted
upon until the day of the elections, May 14, 2001. On May 16, 2001, private respondent Sunga
filed an Ex Parte Motion for ssuance of Temporary Restraining Order Enjoining the City Board
of Canvassers From Canvassing or Tabulating Respondents Votes, and From Proclaiming Him
as the Duly Elected Mayor if He Wins the Elections.
6
Despite this, however, petitioner Latasa
was still proclaimed winner on May 17, 2001, having garnered the most number of votes.
Consequently, private respondent Sunga filed, on May 27, 2001, a Supplemental Motion
7
which
essentially sought the annulment of petitioners proclamation and the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor
ofDigos City. t was only on August 27, 2002 that the COMELEC en banc issued a Resolution
denying petitioners Motion for Reconsideration.
Hence, this petition.
t cannot be denied that the Court has previously held in amba-Perez v. COELEC
8
that after
an elective official has been proclaimed as winner of the elections, the COMELEC has no
jurisdiction to pass upon his qualifications. An opposing partys remedies after proclamation
would be to file a petition for quo warranto within ten days after the proclamation.
On the other hand, certain peculiarities in the present case reveal the fact that its very heart is
something which this Court considers of paramount interest. This Court notes from the very
beginning that petitioner himself was already entertaining some doubt as to whether or not he is
indeed eligible to run for city mayor in the May 14, 2001 elections. n his certificate of candidacy,
after the phrase am eligible, petitioner inserted a footnote and indicated:
*
Having served three (3) term[s] as municipal mayor and now running for the first time as city
mayor.
9

Time and again, this Court has held that rules of procedure are only tools designed to facilitate
the attainment of justice, such that when rigid application of the rules tend to frustrate rather
than promote substantial justice, this Court is empowered to suspend their operation. We will
not hesitate to set aside technicalities in favor of what is fair and just.
10

The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of
procedural rules.
The present case raises a novel issue with respect to an explicit Constitutional mandate:
whether or not petitioner Latasa is eligible to run as candidate for the position of mayor of the
newly-created City of Digos immediately after he served for three consecutive terms as mayor
of theMunicipality of Digos.
As a rule, in a representative democracy, the people should be allowed freely to choose those
who will govern them. Article X, Section 8 of the Constitution is an exception to this rule, in that
it limits the range of choice of the people.
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.
An examination of the historical background of the subject Constitutional provision reveals that
the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. n fact, they rejected a proposal set forth by Commissioner Edmundo Garcia that after
serving three consecutive terms or nine years, there should be no further re-election for local
and legislative officials.
11
The members, instead, adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred from running for the same
position in the succeeding election following the expiration of the third consecutive term:
MR. MONSOD: Madam President, was reflecting on this issue earlier and asked to speak
because in this draft Constitution, we are recognizing peoples power. We have said that now
there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at the same time,
we are prescreening candidates among whom they will choose. We are saying that this 48-
member Constitutional Commission has decreed that those who have served for a period of
nine years are barred from running for the same position.
The argument is that there may be other positions. But there are some people who are very
skilled and good at legislation, and yet are not of a national stature to be Senators. They may be
perfectly honest, perfectly competent and with integrity. They get voted into office at the age of
25, which is the age we provide for Congressmen. And at 34 years old we put them into
pasture.
Second, we say that we want to broaden the choices of the people. We are talking here only of
congressional or senatorial seats. We want to broaden the peoples choice but we are making
prejudgment today because we exclude a certain number of people. We are, in effect, putting
an additional qualification for office that the officials must have not have served a total of more
than a number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen,
but the future participation of these statesmen is limited. Their skills may be only in some areas,
but we are saying that they are going to be barred from running for the same position.
Madam President, the ability and capacity of a statesman depend as well on the day-to-day
honing of his skills and competence, in intellectual combat, in concern and contact with the
people, and here we are saying that he is going to be barred from the same kind of public
service.
do not think it is in our place today to make such a very important and momentous decision
with respect to many of our countrymen in the future who may have a lot more years ahead of
them in the service of their country.
f we agree that we will make sure that these people do not set up structures that will perpetuate
them, then let us give them this rest period of three years or whatever it is. Maybe during that
time, we would even agree that their fathers or mothers or relatives of the second degree should
not run. But let us not bar them for life after serving the public for number of years.
12

The framers of the Constitution, by including this exception, wanted to establish some
safeguards against the excessive accumulation of power as a result of consecutive terms. As
Commissioner Blas Ople stated during the deliberations:
x x x think we want to prevent future situations where, as a result of continuous service and
frequent re-elections, officials from the President down to the municipal mayor tend to develop a
proprietary interest in their positions and to accumulate these powers and perquisites that
permit them to stay on indefinitely or to transfer these posts to members of their families in a
subsequent election. x x x
13

An elective local official, therefore, is not barred from running again in for same local
government post, unless two conditions concur: 1.) that the official concerned has been elected
for three consecutive terms to the same local government post, and 2.) that he has fully served
three consecutive terms.
14

n the present case, petitioner states that a city and a municipality have separate and distinct
personalities. Thus they cannot be treated as a single entity and must be accorded different
treatment consistent with specific provisions of the Local Government Code. He does not deny
the fact that he has already served for three consecutive terms as municipal mayor. However,
he asserts that when Digos was converted from a municipality to a city, it attained a different
juridical personality. Therefore, when he filed his certificate of candidacy for city mayor, he
cannot be construed as vying for the same local government post.
For a municipality to be converted into a city, the Local Government Code provides:
SECTION 40. Requisites for Creation. - (a) A municipality or a cluster of barangays may be
converted into a component city it has an average annual income, as certified by the
Department of Finance, of at least Twenty million pesos (20,000,000.00) for the last two (2)
consecutive years based on 1991 constant prices, and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as
certified by the Land Management Bureau; or,
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants,
as certified by the National Statistics Office.
Provided, That, the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and
bounds. The requirement on land are shall not apply where the city proposed to be created is
composed of one (1) or more island. The territory need not be contiguous if it comprises two (2)
or more islands.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, transfers, and non-recurring income.
15

Substantial differences do exist between a municipality and a city. For one, there is a material
change in the political and economic rights of the local government unit when it is converted
from a municipality to a city and undoubtedly, these changes affect the people as well.
16
t is
precisely for this reason why Section 10, Article X of the Constitution mandates that no
province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, without the approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
As may be gleaned from the Local Government Code, the creation or conversion of a local
government unit is done mainly to help assure its economic viability. Such creation or
conversion is based on verified indicators:
Section 7. Creation and Conversion. --- As a general rule, the creation of a local government
unit or its conversion from one level to another shall be based on verifiable indicators or viability
and projected capacity to provide services, to wit:
(a) ncome. --- t must be sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the size of its
population, as expected of the local government unit concerned;
(b) Population. --- t shall be determined as the total number of inhabitants within the territorial
jurisdiction of the local government unit concerned; and
(c) Land Area. --- t must be contiguous, unless it comprises two (2) or more islands or is
separated by a local government unit independent of the others; properly identified by metes
and bounds with technical descriptions; and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance
(DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the
Department of Environment and Natural Resources (DENR).
17

On the other hand, Section 2 of the Charter of the City of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be converted into a component
city to be known as the City of Digos, hereinafter referred to as the City, which shall comprise
the present territory of the Municipality of Digos, Davao del Sur Province. The territorial
jurisdiction of the City shall be within the present metes and bounds of the Municipality of Digos.
x x x
Moreover, Section 53 of the said Charter further states:
Section 3. Officials of the City of Digos. --- The present elective officials of
the Municipality ofDigos shall continue to exercise their powers and functions until such a time
that a new election is held and the duly-elected officials shall have already qualified and
assumed their offices. x x x.
As seen in the aforementioned provisions, this Court notes that the delineation of the metes and
bounds of the City of Digos did not change even by an inch the land area previously covered by
the Municipality of Digos. This Court also notes that the elective officials of
the Municipality ofDigos continued to exercise their powers and functions until elections were
held for the new cityofficials.
True, the new city acquired a new corporate existence separate and distinct from that of the
municipality. This does not mean, however, that for the purpose of applying the subject
Constitutional provision, the office of the municipal mayor would now be construed as a different
local government post as that of the office of the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the
inhabitants of the municipality are the same as those in the city. These inhabitants are the same
group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive
terms. These are also the same inhabitants over whom he held power and authority as their
chief executive for nine years.
This Court must distinguish the present case from previous cases ruled upon this Court
involving the same Constitutional provision.
n orja, Jr. v. COELEC,
18
the issue therein was whether a vice-mayor who became the
mayor by operation of law and who served the remainder of the mayors term should be
considered to have served a term in that office for the purpose of the three-term limit under the
Constitution. Private respondent in that case was first elected as vice-mayor, but upon the death
of the incumbent mayor, he occupied the latters post for the unexpired term. He was, thereafter,
elected for two more terms. This Court therein held that when private respondent occupied the
post of the mayor upon the incumbents death and served for the remainder of the term, he
cannot be construed as having served a full term as contemplated under the subject
constitutional provision. The term served must be one for which [the official concerned] was
elected.
t must also be noted that in orja, the private respondent therein, before he assumed the
position of mayor, first served as the vice-mayor of his local government unit. The nature of the
responsibilities and duties of the vice-mayor is wholly different from that of the mayor. The vice-
mayor does not hold office as chief executive over his local government unit. n the present
case, Petitioner, upon ratification of the law converting the municipality to a city, continued to
hold office as chief executive of the same territorial jurisdiction. There were changes in the
political and economic rights of Digos as local government unit, but no substantial change
occurred as to petitioners authority as chief executive over the inhabitants of Digos.
n Lonzanida v. COELEC,
19
petitioner was elected and served two consecutive terms as
mayor from 1988 to 1995. He then ran again for the same position in the May 1995 elections,
won and discharged his duties as mayor. However, his opponent contested his proclamation
and filed an election protest before the Regional Trial Court, which ruled that there was a failure
of elections and declared the position of mayor vacant. The COMELEC affirmed this ruling and
petitioner acceded to the order to vacate the post. During the May 1998 elections, petitioner
therein again filed his certificate of candidacy for mayor. A petition to disqualify him was filed on
the ground that he had already served three consecutive terms. This Court ruled, however, that
petitioner therein cannot be considered as having been duly elected to the post in the May 1995
elections, and that said petitioner did not fully serve the 1995-1998 mayoral term by reason of
involuntary relinquishment of office.
n the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May
1998 elections. Can he then be construed as having involuntarily relinquished his office by
reason of the conversion of Digos from municipality to city? This Court believes that he did
involuntarily relinquish his office as municipal mayor since the said office has been deemed
abolished due to the conversion. However, the very instant he vacated his office as municipal
mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for
even just a short period of time, stepped down from office, petitioner Latasa never ceased from
acting as chief executive of the local government unit. He never ceased from discharging his
duties and responsibilities as chief executive of Digos.
n Adormeo v. COELEC,
20
this Court was confronted with the issue of whether or not an
assumption to office through a recall election should be considered as one term in applying the
three-term limit rule. Private respondent, in that case, was elected and served for two
consecutive terms as mayor. He then ran for his third term in the May 1998 elections, but lost to
his opponent. n June 1998, his opponent faced recall proceedings and in the recall elections of
May 2000, private respondent won and served for the unexpired term. For the May 2001
elections, private respondent filed his certificate of candidacy for the office of mayor. This was
questioned on the ground that he had already served as mayor for three consecutive terms.
This Court held therein that private respondent cannot be construed as having been elected and
served for three consecutive terms. His loss in the May 1998 elections was considered by this
Court as an interruption in the continuity of his service as mayor. For nearly two years, private
respondent therein lived as a private citizen. The same, however, cannot be said of petitioner
Latasa in the present case.
Finally, in Socrates v. COELEC,
21
the principal issue was whether or not private respondent
Edward M. Hagedorn was qualified to run during the recall elections. Therein respondent
Hagedorn had already served for three consecutive terms as mayor from 1992 until 2001 and
did not run in the immediately following regular elections. On July 2, 2002, the barangay officials
of Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the
recall of the incumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent
Hagedorn filed his certificate of candidacy for mayor in the recall election. A petition for his
disqualification was filed on the ground that he cannot run for the said post during the recall
elections for he was disqualified from running for a fourth consecutive term. This Court,
however, ruled in favor of respondent Hagedorn, holding that the principle behind the three-term
limit rule is to prevent consecutiveness of the service of terms, and that there was in his case a
break in such consecutiveness after the end of his third term and before the recall election.
t is evident that in the abovementioned cases, there exists a rest period or a break in the
service of the local elective official. n Lonzanida, petitioner therein was a private citizen a few
months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private
respondents therein lived as private citizens for two years and fifteen months respectively.
ndeed, the law contemplates a rest period during which the local elective official steps down
from office and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit.
This Court reiterates that the framers of the Constitution specifically included an exception to the
peoples 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
eighteenconsecutive years. This is the very scenario sought to be avoided by the Constitution, if
not abhorred by it.
Finally, respondent Sunga claims that applying the principle in Labo v. COELEC,
22
he should
be deemed the mayoralty candidate with the highest number of votes. On the contrary, this
Court held in Labo that the disqualification of a winning candidate does not necessarily entitle
the candidate with the highest number of votes to proclamation as the winner of the elections.
As an obiter, the Court merely mentioned that the rule would have been different if the
electorate, fully aware in fact and in law of a candidates disqualification so as to bring such
awareness within the realm of notoriety, would nonetheless cast their votes in favor of the
ineligible candidate. n such case, 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 obtaining the next higher number of votes may be deemed
elected. The same, however, cannot be said of the present case.
This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast
for an ineligible candidate at a popular election, or that a candidate is later declared to be
disqualified to hold office, does not entitle the candidate who garnered the second highest
number of votes to be declared elected. The same merely results in making the winning
candidates election a nullity.
23
n the present case, moreover, 13,650 votes were cast for private
respondent Sunga as against the 25,335 votes cast for petitioner Latasa.
24
The second placer is
obviously not the choice of the people in that particular election. n any event, a permanent
vacancy in the contested office is thereby created which should be filled by succession.
25

HEREFORE, the petition is DISISSED. No pronouncement as to costs.
SO ORDERED.

EN BANC


FRANCIS G. ONG, G.R. No. 16329
Petitioner,
Present:

PANGANBAN, C.J.
PUNO,
QUSUMBNG,
YNARES-SANTAGO,
SANDOVAL-GUTERREZ,
- versus - CARPO
AUSTRA-MARTNEZ,
CORONA,
CARPO MORALES,
CALLEJO, SR.,
AZCUNA,
TNGA,
CHCO-NAZARO, and
GARCA, JJ.

JOSEPH STANLEY ALEGRE and Promulgated:
COMMISSION ON ELECTIONS,
Respondents. January 23, 2006
x - - - - - - - - - - - - - - - - - - - - - x

ROMMEL G. ONG,
Petitioner,


- versus - G.R. No. 16334


JOSEPH STANLEY ALEGRE and
COMMISSION ON ELECTIONS,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
D E C I S I O N


GARCIA, J.:


Before the Court are these two separate petitions under Rule 65 of the Rules of Court to
nullify and set aside certain issuances of the Commission on Elections (COMELEC) en banc.

The first, docketed as G.R. No. 16329, is a petition for certiorari with petitioner Francis G.
Ong impugning the COMELEC en bancresolution
[1]
dated May 7, 2004 in SPA Case No. 04-
048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the
resolution dated March 31, 2004
[2]
of the COMELEC's First Division.

The second, G.R. No. 16334, is for certiorari, prohibition and mandamus, with application
for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other
things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en
bancresolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No.
16329.

Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these
petitions.

The recourse stemmed from the following essential and undisputed factual backdrop:

Private respondent Joseph StanIey AIegre (Alegre) and petitioner Francis Ong (Francis)
were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte
in the May 10, 2004 eIections. Francis was then the incumbent mayor.

On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to
Disqualify, Deny Due Course and Cancel Certificate of Candidacy
[3]
of Francis. Docketed
as SPA Case No. 04-048, the petition to disqualify was predicated on the three-consecutive
term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001
mayoralty elections and have assumed office as mayor and discharged the duties thereof for
three (3) consecutive full terms corresponding to those elections.

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each
other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently
proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest,
docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines
Norte. n it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty
contest,
[4]
albeit the decision came out only on July 4, 2001, when Francis had fully served the
1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as
mayor-elect of the municipality of San Vicente.

Acting on Alegre's petition to disqualify and to cancel Francis' certificate of candidacy for
the May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a
resolution
[5]
dismissing the said petition of Alegre, rationalizing as follows:

We see the circumstances in the case now before us analogous to those
obtaining in the sample situations addressed by the Highest Court in the Borja
case. Herein, one of the requisites for the application of the three term rule is not
present. Francis Ong might have indeed fully served the mayoral terms of 1995
to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from 1998
to 2001 cannot be considered his because he was not duly elected thereto. The
[RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998
term when it held, in its decision that Stanley Alegre was the IegaIIy eIected
mayor in the 1998 mayoraIty eIection in San Vicente, Camarines
Norte." This disposition had become final after the [COMELEC] dismissed the
appeal filed by Ong, the case having become moot and academic.

xxx xxx xxx

On the basis of the words of the Highest Court pronounced in the
Lonzanida case and applicable in the case at bench, Ong could not be
considered as having served as mayor from 1998 to 2001 because "he was not
duly elected to the post; he merely assumed office as a presumptive winner;
which presumption was later overturned . when [the RTC] decided with finality
that [he] lost in the May 1998 elections. (Words in bracket and emphasis in the
original).


Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that
there was a misapplication of the three-term rule, as applied in the cited cases of orja vs.
Comelec and Lonzanida vs. Comelec, infra.


On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a
resolution
[6]
reversing the March 31, 2004 resolution of the COMELEC's First Division and
thereby (a) declaring Francis "as disqualified to run for mayor of San 'icente, Camarines orte
in the .ay 10, 2004"; (b) ordering the deletion of Francis' name from the official list of
candidates; and (c) directing the concerned board of election inspectors not to count the votes
cast in his favor.

The following day, May 8, Francis received a fax machine copy of the aforecited May 7,
2004 resolution, sending him posthaste to seek the assistance of his political party, the
Nationalist People's Coalition, which immediately nominated his older brother, RommeI
Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is
past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of
candidacy for the position of mayor, as substitute candidate for his brother Francis.

The following undisputed events then transpired:

1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny
Due Course to or Cancel Certificate of Rommel Ong.

2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter
[7]
to
Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cario and Acting Election
Officer Emily G. Basilonia in which he appealed that, owing to the COMELEC's inaction on
Alegre's petition to cancel Rommel's certificate of candidacy, the name "Rommel Ong be
included in the official certified list of candidates for mayor of San Vicente, Camarines Norte.
The desired listing was granted by the PES Carino.

3. On May 10, 2004, Alegre wrote
[8]
to then COMELEC Commissioner Virgilio
Garcillano, Commissioner-in-Charge for Regions V and V, seeking clarification on the legality of
the action thus taken by the PES Cario. Responding, Commissioner Garcillano issued a
Memorandum under date May 10, 2004
[9]
addressed to PES Liza D. Zabala-Cario, ordering
her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on
May 7, 2004.
[10]
Said Memorandum partly stated:

The undersigned ADOPTS the recommendation of Atty. Alioden D.
Dalaig [Director V, Law Department], which he quote your stand, that
substitution is not proper if the certificate of the substituted candidacy is denied
due course. In the Resolution of the Commission En banc, the Certificate of
candidacy of Francis Ong was denied due course," and elaborated further that:

"x x x there is an existing policy of the Commission not to
include the name of a substitute candidate in the certified list of
candidates unless the substitution is approved by the
Commission.

n view, thereof, it is recommended that 1) the substitute
certificate of candidacy of Rommel Ong Gan Ong, should be
denied due course; and 2) the election officer be directed to
delete his name from the list of candidates."

The above position of the Commission was in line with the
pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) which
states:

"There can no valid substitution where a candidate is
excluded not only by disqualification but also by denial and
cancellation of his certificate of candidacy."

n view thereof, you are hereby directed to faithfully implement the said
Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May
7, 2004. (Emphasis in the original; words in bracket added].


4. Owing to the aforementioned Garcillano Memorandum, it would seem that the
Chairman of the Municipal Board of Canvasser of San Vicente issued an order enjoining all
concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest with
that Board.
[11]


5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the
winning candidate for the mayoralty post in San Vicente, Camarines Norte.
[12]



On May 12, 2004, Francis filed before the Court a petition for certiorari, presently
docketed as G.R. No. 16329. His brother Rommel's petition in G.R. No. 16334 followed
barely a week after.

n our en banc resolution dated June 1, 2004, G.R. No. 16329 and G.R. No.
16334 were consolidated.
[13]


Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private
respondent Alegre's Petition to Deny Due Course to or Cancel Certificate of Candidacy of
Rommel Ong, for being moot and academic.
[14]


The issues for resolution of the Court are:

n G.R. No. 16329, whether the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing its en banc resolution dated May 7, 2004
declaring petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in
the May 10, 2004 elections and consequently ordering the deletion of his name from the official
list of candidates so that any vote cast in his favor shall be considered stray.

n G.R. No. 16334, whether the COMELEC committed grave abuse of discretion when it
denied due course to Rommel's certificate of candidacy in the same mayoralty election as
substitute for his brother Francis.

A resolution of the issues thus formulated hinges on the question of whether or not
petitioner Francis's assumption of office as Mayor of San Vicente, Camarines Norte for the
mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-
term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on
the other hand, disagrees. He argues that, while he indeed assumed office and discharged the
duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elect in
the May 1998 election was contested and eventually nullified per the decision of the RTC of
Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues,
citing Lonzanida vs. Comelec
[15]
, that a proclamation subsequently declared void is no
proclamation at all and one assuming office on the strength of a protested proclamation does so
as a presumptive winner and subject to the final outcome of the election protest.

The three-term limit rule for elective local officials is found in Section 8, Article X of the
1987 Constitution, which provides:

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


Section 43 (b) of the Local Government Code restates the same rule as follows:

Sec. 43. Term of Office.

xxx xxx xxx

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


For the three-term limit for elective local government officials to apply, two conditions or
requisites must concur, to wit: (1) that the official concerned has been elected for three (3)
consecutive terms in the same local government post, and (2) that he has fully served three (3)
consecutive terms.
[16]


With the view we take of the case, the disqualifying requisites are present herein, thus
effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in
the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been
duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections
and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full.
The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be
no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and
actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him
mayor-elect of the municipality of San Vicente. The question that begs to be addressed,
therefore, is whether or not Francis's assumption of office as Mayor of San Vicente,
Camarines Norte from JuIy 1, 1998 to June 30, 2001, may be considered as one fuII term
service in the context of the consecutive three-term Iimit ruIe.

We hold that such assumption of office constitutes, for Francis, "service for the full term",
and should be counted as a full term served in contemplation of the three-term limit prescribed
by the constitutional and statutory provisions, supra, barring local elective officials from being
elected and serving for more than three consecutive term for the same position.

t is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,
[17]

that it was Francis' opponent (Alegre) who "won in the 1998 mayoralty race and, therefore, was
the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was
without practical and legal use and value, having been promulgated after the term of the
contested office has expired. Petitioner Francis' contention that he was only a presumptive
winner in the 1998 mayoralty derby as his proclamation was under protest did not make him
less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San
Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of
office and his continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such
contrary view would mean that Alegre would under the three-term rule - be considered as
having served a term by virtue of a veritably meaningless electoral protest ruling, when another
actually served such term pursuant to a proclamation made in due course after an election.


Petitioner cites, but, to our mind, cannot seek refuge from the Court's ruling
in, Lonzanida vs. Comelec,
[18]
citing orja vs. Comelec
[19]
. nLonzanida, petitioner Lonzanida
was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to
the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections,
won and discharged his duties as Mayor. However, his opponent contested his proclamation
and filed an election protest before the RTC of Zambales, which, in a decision dated January 9,
1997, ruled that there was a failure of elections and declared the position vacant. The
COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the
post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now,
during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to
disqualify, under the three-term rule, was filed and was eventually granted. There, the Court
held that Lonzanida cannot be considered as having been duly elected to the post in the May
1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of
involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be
deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in
fact vacated] his post before the expiration of the term.

The difference between the case at bench and Lonzanida is at once apparent. For one,
in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of
"failure of election, and, as a consequence thereof, the proclamation of Lonzanida as mayor-
elect was nullified, followed by an order for him to vacate the office of mayor. For another,
Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance
from office as a result of legal processes. n fine, there was an effective interruption of the
continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But
more importantly, here, there was actually no interruption or break in the continuity of Francis'
service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during
the term in question; he never ceased discharging his duties and responsibilities as mayor of
San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en
banc when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty
post of San Vicente and denying due course to his certificate of candidacy by force of the
constitutional and statutory provisions regarding the three-term limit rule for any local elective
official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed
Resolution commends itself for concurrence:

As correctly pointed out by Petitioner-Movant [Alegre]in applying the
ruling in the Borja and Lonzanida cases in the instant petition will be erroneous
because the factual milieu in those cases is different from the one obtaining
here. Explicitly, the three-term limit was not made applicable in the cases
of Borja and Lonzanida because there was an interruption in the continuity of
service of the three consecutive terms. Here, Respondent Ong would have
served continuously for three consecutive terms, from 1995 to 2004. His full term
from 1998 to 2001 could not be simply discounted on the basis that he was not
duly elected thereto on account of void proclamation because it would have
iniquitous effects producing outright injustice and inequality as it rewards a legally
disqualified and repudiated loser with a crown of victory. (Word in bracket added;
emphasis in the original)


Given the foregoing consideration, the question of whether or not then Commissioner
Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum,
ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even
before its finality
[20]
is now of little moment and need not detain us any longer.

Just as unmeritorious as Francis' petition in G.R. No. 163295 is Rommel's petition in G.R.
No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as
a substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were,
existing COMELEC policy
[21]
provides for the non-inclusion of the name of substitute candidates
in the certified list of candidates pending approval of the substitution.

Not to be overlooked is the Court's holding in iranda vs. Abaya,
[22]
that a candidate
whose certificate of candidacy has been cancelled or not given due course cannot be
substituted by another belonging to the same political party as that of the former, thus:

While there is no dispute as to whether or not a nominee of a registered
or accredited political party may substitute for a candidate of the same party who
had been disqualified for any cause, this does not include those cases where the
certificate of candidacy of the person to be substituted had been denied due
course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the
occasions where a candidate may be validly substituted, there is no mention of
the case where a candidate is excluded not only by disqualification but also by
denial and cancellation of his certificate of candidacy. Under the foregoing rule,
there can be no valid substitution for the latter case, much in the same way that
a nuisance candidate whose certificate of candidacy is denied due course and/or
cancelled may not be substituted. f the intent of the lawmakers were otherwise,
they could have so easily and conveniently included those persons whose
certificates of candidacy have been denied due course and/or cancelled under
the provisions of Section 78 of the Code.

xxx xxx xxx

A person without a valid certificate of candidacy cannot be considered a
candidate in much the same way as any person who has not filed any certificate
of candidacy at all can not, by any stretch of the imagination, be a candidate at
all.

xxx xxx xxx

After having considered the importance of a certificate of candidacy, it
can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No.
133840, November 13, 1998] we ruled that a person with a cancelled certificate
is no candidate at all. Applying this principle to the case at bar and considering
that Section 77 of the Code is clear and unequivocal that only an official
candidate of a registered or accredited party may be substituted, there
demonstrably cannot be any possible substitution of a person whose certificate of
candidacy has been cancelled and denied due course.


n any event, with the hard reality that the May 10, 2004 elections were already pass,
Rommel Ong's petition in G.R. No. 163354 is already moot and academic.

HEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution
dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED.

Costs against petitioners.

SO ORDERED.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180444 ApriI 8, 2008
FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners,
vs.
COMMISSION ON ELECTION and SESINANDO F. POTENCIOSO, JR., respondents.
D E C I S I O N
YNARES-SANTIAGO, J.:
This petition
1
for certiorari assails the June 2, 2007 Resolution
2
of the First Division of the
Commission on Elections (COMELEC) in SPA No. 07-421, denying the petition for
disqualification filed by petitioners Federico T. Montebon and Eleanor M. Ondoy against
respondent Sesinando F. Potencioso, Jr., as well as the September 28, 2007 Resolution
3
of the
COMELEC En anc denying the motion for reconsideration.
Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal
councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and
Local Elections. On April 30, 2007, petitioners and other candidates
4
for municipal councilor filed
a petition for disqualification against respondent with the COMELEC alleging that respondent
had been elected and served three consecutive terms as municipal councilor in 1998-2001,
2001-2004, and 2004-2007. Thus, he is proscribed from running for the same position in the
2007 elections as it would be his fourth consecutive term.
n his answer, respondent admitted that he had been elected for three consecutive terms as
municipal councilor. However, he claimed that the service of his second term in 2001-2004 was
interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the
retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying
for the position of municipal councilor in the 2007 elections.
n the hearing of May 10, 2007, the parties were directed to file their respective memoranda.
n petitioners' memorandum, they maintained that respondent's assumption of office as vice-
mayor in January 2004 should not be considered an interruption in the service of his second
term since it was a voluntary renunciation of his office as municipal councilor. They argued that,
according to the law, voluntary renunciation of the office for any length of time shall not be
considered an interruption in the continuity of service for the full term for which the official
concerned was elected.
On the other hand, respondent alleged that a local elective official is not disqualified from
running for the fourth consecutive time to the same office if there was an interruption in one of
the previous three terms.
On June 2, 2007, the COMELEC First Division denied the petition for disqualification ruling that
respondent's assumption of office as vice-mayor should be considered an interruption in the
continuity of his service. His second term having been involuntarily interrupted, respondent
should thus not be disqualified to seek reelection as municipal councilor.
5

On appeal, the COMELEC En anc upheld the ruling of the First Division, as follows:
Respondent's assumption to the office of the vice-mayor of Tuburan in January 2004
during his second term as councilor is not a voluntary renunciation of the latter office.
The same therefore operated as an effective disruption in the full service of his second
term as councilor. Thus, in running for councilor again in the May 14, 2007 Elections,
respondent is deemed to be running only for a second consecutive term as councilor of
Tuburan, the first consecutive term fully served being his 2004-2007 term.
Petitioner Montebon's and Ondoy's June 9, 2007 manifestation and omnibus motion are
hereby declared moot and academic with the instant disposition of their motion for
reconsideration.
WHEREFORE, premises considered, petitioners' motion for reconsideration is hereby
DENED for lack of merit.
SO ORDERED.
6

Petitioners filed the instant petition for certiorari on the ground that the COMELEC committed
grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that respondent's
assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term as
municipal councilor.
The petition lacks merit.
The 1987 Constitution bars and disqualifies local elective officials from serving more than three
consecutive terms in the same post. Section 8, Article X thereof states:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law shall be three years and no such officials 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 also provides:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three 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.
n Lonzanida v. Commission on Elections,
7
the Court held that the two conditions for the
application of the disqualification must concur: 1) that the official concerned has been elected
for three consecutive terms in the same local government post; and 2) that he has fully served
three consecutive terms.
8
n orja, Jr. v. Commission on Elections,
9
the Court emphasized that
the term limit for elective officials must be taken to refer to the right to be elected as well as the
right to serve in the same elective position. Thus, for the disqualification to apply, it is not
enough that the official has been elected three consecutive times; he must also have served
three consecutive terms in the same position.
10

While it is undisputed that respondent was elected municipal councilor for three consecutive
terms, the issue lies on whether he is deemed to have fully served his second term in view of
his assumption of office as vice-mayor of Tuburan on January 12, 2004.
Succession in local government offices is by operation of law.
11
Section 44
12
of Republic Act No.
7160, otherwise known as the Local Government Code, provides that if a permanent vacancy
occurs in the office of the vice mayor, the highest ranking sanggunian member shall become
vice mayor. Thus:
SEC. 44. Permanent 'acancies in the Offices of the Governor, 'ice Governor, ayor,
and 'ice ayor. (a) f 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.
f a permanent vacancy occurs in the offices of the governor, vice governor, mayor or
vice mayor, the highest ranking sanggunian member or, in case of his permanent
inability, the second highest ranking sanggunian member, shall become the governor,
vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the
said office shall be filled automatically by the other sanggunian members according to
their ranking as defined herein. x x x
n this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement
of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded
him in accordance with law. t is clear therefore that his assumption of office as vice-mayor can
in no way be considered a voluntary renunciation of his office as municipal councilor.
n Lonzanida v. Commission on Elections, the Court explained the concept of voluntary
renunciation as follows:
The second sentence of the constitutional provision under scrutiny states, 'Voluntary
renunciation of office for any length of time shall not be considered as an interruption in
the continuity of service for the full term for which he was elected.' The clear intent of the
framers of the constitution to bar any attempt to circumvent the three-term limit by a
voluntary renunciation of office and at the same time respect the people's choice and
grant their elected official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the computation of the
three term limit; conversely, invoIuntary severance from office for any Iength of time
short of the fuII term provided by Iaw amounts to an interruption of continuity of
service.
13
(Emphasis added)
Thus, respondent's assumption of office as vice-mayor in January 2004 was an involuntary
severance from his office as municipal councilor, resulting in an interruption in the service of his
2001-2004 term. t cannot be deemed to have been by reason of voluntary renunciation
because it was by operation of law. We quote with approval the ruling of the COMELEC that
The legal successor is not given any option under the law on whether to accept the
vacated post or not. Section 44 of the Local Government Code makes no exception.
Only if the highest-ranking councilor is permanently unable to succeed to the post does
the law speak of alternate succession. Under no circumstances can simple refusal of the
official concerned be considered as permanent inability within the contemplation of law.
Essentially therefore, the successor cannot refuse to assume the office that he is
mandated to occupy by virtue of succession. He can only do so if for some reason he is
permanently unable to succeed and occupy the post vacated.
x x x x
Thus, succession by law to a vacated government office is characteristically not
voluntary since it involves the performance of a public duty by a government official, the
non-performance of which exposes said official to possible administrative and criminal
charges of dereliction of duty and neglect in the performance of public functions. t is
therefore more compulsory and obligatory rather than voluntary.
14

HEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007 Resolution of the
COMELEC First Division denying the petition for disqualification and the September 28, 2007
Resolution of the COMELEC en banc denying the motion for reconsideration, are AFFIRMED.
SO ORDERED.

EN BANC

G.R. No. 182867, November 2, 2008]

ROBERTO LACEDA, SR., PETITIONER, VS. RANDY L. LIMENA AND COMMISSION ON
ELECTIONS, RESPONDENTS.

RESOLUTION

QUISUMBING, J.:

From this Court's June 10, 2008 Resolution
[1]
dismissing his petition for certiorari, petitioner
Roberto Laceda, Sr. filed the instant motion for reconsideration,
[2]
insisting that the Commission
on Elections (COMELEC) committed grave abuse of discretion in issuing the Resolutions dated
January 15, 2008
[3]
and May 7, 2008
[4]
in SPA No. 07-028 (BRGY).

The facts are as follows:

Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were candidates
for Punong Barangay of Barangay Panlayaan, West District, Sorsogon City, during the October
29, 2007 Barangay and Sangguniang Kabataan Elections. On October 23, 2007, Limena filed a
petition for disqualification and/or declaration as an ineligible candidate
[5]
against Laceda before
the COMELEC, contending that Laceda had already served as Punong Barangay for Brgy.
Panlayaan for three consecutive terms since 1994, and was thus prohibited from running for the
fourth time under Section 2 of Republic Act No. 9164
[6]
which provides:
SEC. 2. Term of Office.CThe term of office of all barangay and sangguniang kabataan officials
after the effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than three (3) consecutive terms in the same
position: Provided, however, That the term of office shall be reckoned from the 1994 barangay
elections. Voluntary renunciation of office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official was elected.
Limena likewise attached the following certification from the Department of the nterior and
Local Government:
THS S TO CERTFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent
Punong Barangay of Panlayaan, West District, Sorsogon City. ...was elected as Punong
Barangay during the May 9, 1994, May 12, 1997 and July 15, 2002 Barangay Elections. He
resigned from office on March 20, 1995 to run as Municipal Councilor. Hence, he is covered by
the three-term rule of paragraph 2, Section 2 of RA 9164 which provides that: "No barangay
elective official shall serve for more than three (3) consecutive terms in the same position:
Provided, however, that the term of office shall be reckoned from the 1994 barangay
elections. 'oluntary renunciation of office [for] any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official was
elected."
[7]


x x x x
n his Answer,
[8]
Laceda admitted having served as Punong Barangay of Panlayaan for three
consecutive terms. However, he asserted that when he was elected for his first two terms,
Sorsogon was still a municipality, and that when he served his third term, the Municipality of
Sorsogon had already been merged with the Municipality of Bacon to form a new political unit,
the City of Sorsogon, pursuant to Republic Act No. 8806.
[9]
Thus, he argued that his third term
was actually just his first in the new political unit and that he was accordingly entitled to run for
two more terms.

Laceda likewise argued that assuming he had already served three consecutive terms, Rep. Act
No. 9164 which imposes the three-term limit, cannot be made to apply to him as it would violate
his vested right to office. He alleged that when he was elected in 1994 the prohibition did not
exist. Had he known that there will be a law preventing him to run for the fourth time, he would
not have run for office in 1994 as he was looking forward to the election in 2007.
[10]


On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate
of candidacy:
HEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent
Roberto Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West
District, Sorsogon City and consequently denies due course and cancels his Certificate of
Candidacy.

SO ORDERED.
[11]

Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution
dated May 7, 2008. Aggrieved, Laceda filed a petition for certiorari before this Court.

On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave
abuse of discretion was committed by the COMELEC in rendering the assailed Resolutions of
January 15, 2008 and May 7, 2008. Hence, this motion for reconsideration.

Laceda insists that the COMELEC committed grave abuse of discretion in basing its decision on
the requisites enunciated in Lonzanida v. Commission on Elections
[12]
for the application of the
three-term prohibition in Section 43
[13]
of the Local Government Code.
[14]
Laceda argues that
said case is inapplicable since it involved the position of municipal mayor while the instant case
concerned the position of Punong Barangay. He likewise insists that he served his third term in
a new political unit and therefore he should not be deemed already to have served a third term
as Punong Barangay for purposes of applying the three-term limit.
[15]


For reasons hereafter discussed, the motion for reconsideration cannot prosper.

Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it
was taken, is primarily intended to broaden the choices of the electorate of the candidates who
will run for office, and to infuse new blood in the political arena by disqualifying officials from
running for the same office after a term of nine years. This Court has held that for the
prohibition to apply, two requisites must concur: (1) that the official concerned has been elected
for three consecutive terms in the same local government post and (2) that he or she has fully
served three consecutive terms.
[16]


n this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and
Bacon were merged and converted into a city thereby abolishing the former and creating
Sorsogon City as a new political unit, it cannot be said that for the purpose of applying the
prohibition in Section 2 of Rep. Act No. 9164, the office ofPunong Barangay of Barangay
Panlayaan, unicipality of Sorsogon, would now be construed as a different local government
post as that of the office of PunongBarangay of Barangay Panlayaan, Sorsogon City. The
territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the
conversion. Consequently, the inhabitants of the barangay are the same. They are the same
group of voters who elected Laceda to be their Punong Barangay for three consecutive terms
and over whom Laceda held power and authority as their PunongBarangay. Moreover, Rep.
Act No. 8806 did not interrupt Laceda's term.

n Latasa v. Commission on Elections,
[17]
which involved a similar question, this Court held that
where a person has been elected for three consecutive terms as a municipal mayor and prior to
the end or termination of such three-year term the municipality has been converted by law into a
city, without the city charter interrupting his term until the end of the three-year term, the
prohibition applies to prevent him from running for the fourth time as city mayor thereof, there
being no break in the continuity of the terms.

Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Court's ruling
in Latasa v. Commission on Elections, we hold that the prohibition in Section 2 of said statute
applies to Laceda. The COMELEC did not err nor commit any abuse of discretion when it
declared him disqualified and cancelled his certificate of candidacy.

HEREFORE, petitioner Roberto Laceda, Sr.'s Motion for Reconsideration
[18]
dated July 25,
2008 assailing this Court's Resolution dated June 10, 2008 is DENIED withFINALITY.

SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182088 January 30, 2009
ROBERTO L. DIZON, Petitioner,
vs
COMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents.
D E C I S I O N
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary
restraining order and writ of preliminary injunction under Rule 65 of the 1997 Rules of Civil
Procedure. The present petition seeks the reversal of the Resolution dated 27 July 2007 of the
Commission on Elections' (COMELEC) Second Division which dismissed the petition to
disqualify and/or to cancel Marino P. Morales' (Morales) certificate of candidacy, as well as the
Resolution dated 14 February 2008 of the COMELEC En anc which denied Roberto L. Dizon's
(Dizon) motion for reconsideration.
The Facts
The COMELEC Second Division stated the facts as follows:
Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the
Municipality of Mabalacat, Pampanga. Marino P. Morales, hereinafter referred to as respondent,
is the incumbent Mayor of the Municipality of Mabalacat, Pampanga.
Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga
during the 1995, 1998, 2001 and 2004 elections and has fully served the same. Respondent
filed his Certificate of Candidacy on March 28, 2007 again for the same position and same
municipality.
Petitioner argues that respondent is no longer eligible and qualified to run for the same position
for the May 14, 2007 elections under Section 43 of the Local Government Code of 1991. Under
the said provision, no local elective official is allowed to serve for more than three (3)
consecutive terms for the same position.
Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of
the Municipality of Mabalacat, Pampanga because he was not elected for the said position in
the 1998 elections. He avers that the Commission en banc in SPA Case No. A-04-058, entitled
Atty. Venancio Q. Rivera and Normandick P. De Guzman vs. Mayor Marino P. Morales,
affirmed the decision of the Regional Trial Court of Angeles City declaring Anthony D. Dee as
the duly elected Mayor of Mabalacat, Pampanga in the 1998 elections.
Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as
Mayor of Mabalacat, Pampanga. Respondent further asserts that his election in 2004 is only for
his second term. Hence, the three term rule provided under the Local Government Code is not
applicable to him.
Respondent further argues that the grounds stated in the instant petition are not covered under
Section 78 of the Omnibus Election Code. Respondent further contend [sic] that even if it is
covered under the aforementioned provision, the instant petition failed to allege any material
misrepresentation in the respondent's Certificate of Candidacy.
1

The RuIing of the COMELEC Second Division
n its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of this
Court's ruling in the consolidated cases of Atty. 'enancio ". Rivera III v. COELEC and arino
oking orales in G.R. No. 167591 and Anthony Dee v. COELEC and arino oking
orales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007. The pertinent portions
of the COMELEC Second Division's ruling read as follows:
Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There was
no interruption of his second term from 1998 to 2001. He was able to exercise the powers and
enjoy the position of a mayor as "caretaker of the office" or a "de facto officer" until June 30,
2001 notwithstanding the Decision of the RTC in an electoral protest case. He was again
elected as mayor from July 1, 2001 to June 30, 2003 [sic].
t is worthy to emphasize that the Supreme Court ruled that respondent has violated the three-
term limit under Section 43 of the Local Government Code. Respondent was considered not a
candidate in the 2004 Synchronized National and Local Elections. Hence, his failure to qualify
for the 2004 elections is a gap and allows him to run again for the same position in the May 14,
2007 National and Local Elections.
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to
DENY the instant Petition to Cancel the Certificate of Candidacy and/or Petition for the
Disqualification of Marino P. Morales for lack of merit.
2

Dizon filed a motion for reconsideration before the COMELEC En anc.
The RuIing of the COMELEC n Banc
The COMELEC En anc affirmed the resolution of the COMELEC Second Division.
The pertinent portions of the COMELEC En anc's Resolution read as follows:
Respondent's certificate of candidacy for the May 2004 Synchronized National and Local
Elections was cancelled pursuant to the above-mentioned Supreme Court decision which was
promulgated on May 9, 2007. As a result, respondent was not only disqualified but was also not
considered a candidate in the May 2004 elections.
Another factor which is worth mentioning is the fact that respondent has relinquished the
disputed position on May 16, 2007. The vice-mayor elect then took his oath and has assumed
office as mayor of Mabalacat on May 17, 2007 until the term ended on June 30, 2007. For
failure to serve for the full term, such involuntary interruption in his term of office should be
considered a gap which renders the three-term limit inapplicable.
The three-term limit does not apply whenever there is an involuntary break. The Constitution
does not require that the interruption or hiatus to be a full term of three years. What the law
requires is for an interruption, break or a rest period from a candidate's term of office "for any
length of time." The Supreme Court in the case of Latasa v. Comelec ruled:
ndeed, the law contemplates a rest period during which the local elective official steps down
from office and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit.
n sum, the three-term limit is not applicable in the instant case for lack of the two conditions: 1)
respondent was not the duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007
term primordially because he was not even considered a candidate thereat; and 2) respondent
has failed to serve the entire duration of the term of office because he has already relinquished
the disputed office on May 16, 2007 which is more than a month prior to the end of his
supposed term.
x x x
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
DENY the instant Motion for Reconsideration for LACK OF MERT. The Resolution of the
Commission Second Division is hereby AFFRMED.
SO ORDERED.
3

The Issues
Dizon submits that the factual findings made in the Rivera case should still be applied in the
present case because Morales had, except for one month and 14 days, served the full term of
2004-2007. Morales' assumption of the mayoralty position on 1 July 2007 makes the 2007-2010
term Morales' fifth term in office. Dizon raises the following grounds before this Court:
1. THE COMELEC GRAVELY ABUSED TS DSCRETON AMOUNTNG TO LACK OR
EXCESS OF TS JURSDCTON WHEN T RULED THAT RESPONDENT MORALES
DD NOT VOLATE THE THREE-YEAR TERM LMT WHEN HE RAN AND WON AS
MAYOR OF MABALACAT, PAMPANGA DURNG THE MAY 14, 2007 ELECTON.
2. THE COMELEC GRAVELY ABUSED TS DSCRETON AMOUNTNG TO LACK OR
EXCESS OF JURSDCTON WHEN T RULED THAT DUE TO THS HONORABLE
COURT'S RULNG N THE AFORESAD CONSOLDATED CASES, RESPONDENT
MORALES' FOURTH TERM S CONSDERED A GAP N THE LATTER'S SERVCE
WHEN HE FLED HS CERTFCATE OF CANDDACY FOR THE 2007 ELECTONS.
3. THE COMELEC GRAVELY ABUSED TS DSCRETON WHEN T RULED THAT
THE FOURTH TERM OF MORALES WAS NTERRUPTED WHEN HE
"RELNQUSHED" HS POSTON FOR ONE MONTH AND 14 DAYS PROR TO THE
MAY 14, 2007 ELECTON.
4

The RuIing of the Court
The petition has no merit.
The present case covers a situation wherein we have previously ruled that Morales had been
elected to the same office and had served three consecutive terms, and wherein we disqualified
and removed Morales during his fourth term. Dizon claims that Morales is currently serving his
fifth term as mayor. s the 2007-2010 term really Morales' fifth term?
The ffect of our Ruling in the Rivera Case
n our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term.
We cancelled his Certificate of Candidacy dated 30 December 2003. This cancellation
disqualified Morales from being a candidate in the May 2004 elections. The votes cast for
Morales were considered stray votes. The dispositive portion in theRivera case reads:
WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales' Certificate
of Candidacy dated December 30, 2003 is cancelled. n view of the vacancy in the Office of the
Mayor of Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10,
2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as
such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R.
No. 170577 is DSMSSED for being moot.
This Decision is immediately executory.
SO ORDERED.
5

Article X, Section 8 of the 1987 Constitution reads:
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(b) of the Local Government Code restated Article X, Section 8 of the 1987
Constitution as follows:
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.
For purposes of determining the resulting disqualification brought about by the three-term limit, it
is not enough that an individual has served three consecutive terms in an elective local office,
he must also have been elected to the same position for the same number of times.
6
There
should be a concurrence of two conditions for the application of the disqualification: (1) that the
official concerned has been elected for three consecutive terms in the same local government
post and (2) that he has fully served three consecutive terms.
7
lavvphil.net
n the Rivera case, we found that Morales was elected as mayor of Mabalacat for four
consecutive terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30
June 2004, and 1 July 2004 to 30 June 2007. We disqualified Morales from his candidacy in the
May 2004 elections because of the three-term limit. Although the trial court previously ruled that
Morales' proclamation for the 1998-2001 term was void, there was no interruption of the
continuity of Morales' service with respect to the 1998-2001 term because the trial court's ruling
was promulgated only on 4 July 2001, or after the expiry of the 1998-2001 term.
Our ruling in the Rivera case served as Morales' involuntary severance from office with respect
to the 2004-2007 term. nvoluntary severance from office for any length of time short of the full
term provided by law amounts to an interruption of continuity of service.
8
Our decision in
the Rivera case was promulgated on 9 May 2007 and was effective immediately. The next day,
Morales notified the vice mayor's office of our decision. The vice mayor assumed the office of
the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the
office of the mayor, no matter how short it may seem to Dizon, interrupted Morales' continuity of
service. Thus, Morales did not hold office for the full term of 1 July 2004 to 30 June 2007.
2007-2010: orales' ifth Term?
Dizon claims that the 2007-2010 term is Morales' fifth term in office. Dizon asserts that even
after receipt of our decision on 10 May 2007, Morales "waited for the election to be held on 14
May 2007 to ensure his victory for a fifth term."
9

We concede that Morales occupied the position of mayor of Mabalacat for the following periods:
1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1
July 2004 to 16 May 2007. However, because of his disqualification, Morales was not the duly
elected mayor for the 2004-2007 term. Neither did Morales hold the position of mayor of
Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-
2007 because he was ordered to vacate his post before the expiration of the term. Morales'
occupancy of the position of mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be
counted as a term for purposes of computing the three-term limit. ndeed, the period from 17
May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the
present 1 July 2007 to 30 June 2010 term is effectively Morales' first term for purposes of the
three-term limit rule.
Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy
litigations. x x x n other words, he was violating the rule on three-term limit with impunity by the
sheer length of litigation and profit from it even more by raising the technicalities arising
therefrom."
10
To this, we quote our ruling in Lonzanida v. COELEC:
The respondents harp on the delay in resolving the election protest between petitioner and his
then opponent Alvez which took roughly about three years and resultantly extended the
petitioner's incumbency in an office to which he was not lawfully elected. We note that such
delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay
was due to any political maneuvering on his part to prolong his stay in office. Moreover,
protestant Alvez, was not without legal recourse to move for the early resolution of the election
protest while it was pending before the regional trial court or to file a motion for the execution of
the regional trial court's decision declaring the position of mayor vacant and ordering the vice-
mayor to assume office while the appeal was pending with the COMELEC. Such delay which is
not here shown to have been intentionally sought by the petitioner to prolong his stay in office
cannot serve as basis to bar his right to be elected and to serve his chosen local government
post in the succeeding mayoral election.
11

HEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on
Elections En ancdated 14 February 2008 as well as the Resolution of the Commission on
Elections' Second Division dated 27 July 2007.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184082 March 17, 2009
NICASIO BOLOS, JR., Petitioner,
vs.
THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, Respondents.
D E C S O N
PERALTA, J.:
This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the Commission
on Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the Resolutions promulgated on March 4, 2008 and August 7, 2008
holding that petitioner Nicasio Bolos, Jr. is disqualified as a candidate for the position of Punong
arangay of Barangay Biking, Dauis, Bohol in the October 29,
2007 arangay and Sangguniang Kabataan Elections on the ground that he has served the
three-term limit provided in the Constitution and Republic Act (R.A.) No. 7160, otherwise known
as the Local Government Code of 1991.
The facts are as follows:
For three consecutive terms, petitioner was elected to the position of Punong arangay of
Barangay Biking, Dauis, Bohol in the Barangay Elections held in 1994, 1997 and 2002.
n May 2004, while sitting as the incumbent Punong arangay of Barangay Biking, petitioner ran
for Municipal Councilor of Dauis, Bohol and won. He assumed office as Municipal Councilor on
July 1, 2004, leaving his post asPunong arangay. He served the full term of the Sangguniang
ayan position, which was until June 30, 2007.
Thereafter, petitioner filed his Certificate of Candidacy for Punong arangay of Barangay Biking,
Dauis, Bohol in the October 29, 2007 arangay and Sangguniang Kabataan Elections.
Respondent Rey Angeles Cinconiegue, the incumbent Punong arangay and candidate for the
same office, filed before the COMELEC a petition for the disqualification of petitioner as
candidate on the ground that he had already served the three-term limit. Hence, petitioner is no
longer allowed to run for the same position in accordance with Section 8, Article X of the
Constitution and Section 43 (b) of R.A. No. 7160.
Cinconiegue contended that petitioner's relinquishment of the position of Punong arangay in
July 2004 was voluntary on his part, as it could be presumed that it was his personal decision to
run as municipal councilor in the May 14, 2004 National and Local Elections. He added that
petitioner knew that if he won and assumed the position, there would be a voluntary
renunciation of his post as Punong arangay.
n his Answer, petitioner admitted that he was elected as Punong arangay of Barangay Biking,
Dauis, Bohol in the last three consecutive elections of 1994, 1997 and 2002. However, he
countered that in the May 14, 2004 National and Local Elections, he ran and won as Municipal
Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang
ayan member, his remaining term of office as Punong arangay, which would have ended in
2007, was left unserved. He argued that his election and assumption of office as Sangguniang
ayanmember was by operation of law; hence, it must be considered as an involuntary
interruption in the continuity of his last term of service.
Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the
petition was heard by the Provincial Election Supervisor of Bohol. Upon completion of the
proceedings, the evidence, records of the case, and the Hearing Officer's action on the matter
were endorsed to and received by the Commission on November 21, 2007.
The issue before the COMELEC was whether or not petitioner's election, assumption and
discharge of the functions of the Office of Sangguniang ayan member can be considered as
voluntary renunciation of his office asPunong arangay of Barangay Biking, Dauis, Bohol which
will render unbroken the continuity of his service asPunong arangay for the full term of office,
that is, from 2004 to 2007. f it is considered a voluntary renunciation, petitioner will be deemed
to have served three consecutive terms and shall be disqualified to run for the same position in
the October 29, 2007 elections. But if it is considered as an involuntary
renunciation, petitioner's service is deemed to have been interrupted; hence, he is not barred
from running for another term.
n a Resolution
1
dated March 4, 2008, the First Division of the COMELEC ruled that petitioner's
relinquishment of the office of Punong arangay of Biking, Dauis, Bohol, as a consequence of
his assumption of office asSangguniang ayan member of Dauis, Bohol, on July 1, 2004, was a
voluntary renunciation of the Office ofPunong arangay. The dispositive portion of the
Resolution reads:
WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition.
Respondent NCASO BOLOS, JR., having already served as Punong Barangay of Barangay
Biking, Dauis, Bohol for three consecutive terms is hereby DSQUALFED from being a
candidate for the same office in the October 29, 2007 Barangay and SK Elections. Considering
that respondent had already been proclaimed, said proclamation is hereby ANNULLED.
Succession to said office shall be governed by the provisions of Section 44 of the Local
Government Code.
2

Petitioner's motion for reconsideration was denied by the COMELEC en banc in a
Resolution
3
dated August 7, 2008.
Hence, this petition for certiorari raising this lone issue:
WHETHER OR NOT THE HONORABLE COMMSSON ON ELECTONS ACTED WTHOUT
OR N EXCESS OF TS JURSDCTON AMOUNTNG TO LACK OF JURSDCTON OR WTH
GRAVE ABUSE OF DSCRETON N DSQUALFYNG [PETTONER] AS A CANDDATE FOR
PUNONG BARANGAY N THE OCTOBER 29, 2007 BARANGAY AND SANGGUNANG
KABATAAN ELECTONS AND, SUBSEQUENTLY, ANNULLNG HS PROCLAMATON.
4

The main issue is whether or not there was voluntary renunciation of the Office of Punong
arangay by petitioner when he assumed office as Municipal Councilor so that he is deemed to
have fully served his third term as Punong arangay, warranting his disqualification from
running for the same position in the October 29, 2007 arangayand Sangguniang
Kabataan Elections.
Petitioner contends that he is qualified to run for the position of Punong arangay in the October
29, 2007arangay and Sangguniang Kabataan Elections since he did not serve continuously
three consecutive terms. He admits that in the 1994, 1997 and 2002 arangay elections, he
was elected as Punong arangay for three consecutive terms. Nonetheless, while serving his
third term as Punong arangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On
July 1, 2004, he assumed office and, consequently, left his post as Punong arangay by
operation of law. He averred that he served the full term as member of the Sangguniang
ayan until June 30, 2007. On October 29, 2007, he filed his Certificate of Candidacy
for Punong arangay and won. Hence, the COMELEC gravely abused its discretion in
disqualifying him as a candidate for Punong arangay since he did not complete his third term
by operation of law.
The argument does not persuade.
The three-term limit for elective local officials is contained in Section 8, Article X of the
Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years, and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
David v. Commission on Elections
5
elucidates that the Constitution did not expressly prohibit
Congress from fixing any term of office for barangay officials, thereby leaving to the lawmakers
full discretion to fix such term in accordance with the exigencies of public service. The
discussions in the Constitutional Commission showed that the term of office
of barangay officials would be "[a]s may be determined by law," and more precisely, "[a]s
provided for in the Local Government Code."
6
Section 43(b) of the Local Government Code
provides thatbarangay officials are covered by the three-term limit, while Section 43(c)
7
thereof
states that the term of office ofbarangay officials shall be five (5) years. The cited provisions
read, thus:
Sec. 43. Term of Office. 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.
(c) The term of barangay officials and members of the sangguniang kabataan shall be
for five (5) years, which shall begin after the regular election of barangay officials on the
second Monday of May 1997:Provided, That the sangguniang kabataan members who
were elected in the May 1996 elections shall serve until the next regular election of
barangay officials.
Socrates v. Commission on Elections
8
held that the rule on the three-term limit, embodied in the
Constitution and the Local Government Code, has two parts:
x x x The first part provides that an elective local official cannot serve for more than three
consecutive terms. The clear intent is that only consecutive terms count in determining the
three-term limit rule. The second part states that voluntary renunciation of office for any length
of time does not interrupt the continuity of service. The clear intent is that involuntary severance
from office for any length of time interrupts continuity of service and prevents the service before
and after the interruption from being joined together to form a continuous service or consecutive
terms.
After three consecutive terms, an elective local official cannot seek immediate reelection for a
fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term.
9

n Lonzanida v. Commission on Elections,
10
the Court stated that the second part of the rule on
the three-term limit shows the clear intent of the framers of the Constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office and at the same time
respect the people's choice and grant their elected official full service of a term. The Court held
that two conditions for the application of the disqualification must concur: (1) that the official
concerned has been elected for three consecutive terms in the same government post; and (2)
that he has fully served three consecutive terms.
11

n this case, it is undisputed that petitioner was elected as Punong arangay for three
consecutive terms, satisfying the first condition for disqualification.
What is to be determined is whether petitioner is deemed to have voluntarily renounced his
position as Punong arangay during his third term when he ran for and won as Sangguniang
ayan member and assumed said office.
The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his
position as Punong arangay.
The COMELEC correctly held:
t is our finding that Nicasio Bolos, Jr.'s relinquishment of the office of Punong Barangay of
Biking, Dauis, Bohol, as a consequence of his assumption to office as Sangguniang Bayan
member of Dauis, Bohol, on July 1, 2004, is a voluntary renunciation.
As conceded even by him, respondent (petitioner herein) had already completed two
consecutive terms of office when he ran for a third term in the Barangay Elections of 2002.
When he filed his certificate of candidacy for the Office of Sangguniang Bayan of Dauis, Bohol,
in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the acts
attending his pursuit of his election as municipal councilor point out to an intent and readiness to
give up his post as Punong Barangay once elected to the higher elective office, for it was very
unlikely that respondent had filed his Certificate of Candidacy for the Sangguniang Bayan post,
campaigned and exhorted the municipal electorate to vote for him as such and then after being
elected and proclaimed, return to his former position. He knew that his election as municipal
councilor would entail abandonment of the position he held, and he intended to forego of it.
Abandonment, like resignation, is voluntary.
12

ndeed, petitioner was serving his third term as Punong arangay when he ran for Sangguniang
ayan member and, upon winning, assumed the position of Sangguniang ayan member, thus,
voluntarily relinquishing his office as Punong arangay which the Court deems as a voluntary
renunciation of said office.
Petitioner erroneously argues that when he assumed the position of Sangguniang
ayan member, he left his post as Punong arangay by
operation of law; hence, he did not fully serve his third term as Punong arangay.
The term "operation of law" is defined by the Philippine Legal Encyclopedia
13
as "a term
describing the fact that rights may be acquired or lost by the effect of a legal rule without any act
of the person affected." Black's Law Dictionary also defines it as a term that "expresses the
manner in which rights, and sometimes liabilities, devolve upon a person by the mere
application to the particular transaction of the established rules of law, without the act or
cooperation of the party himself."
14

An interruption in the service of a term of office, by operation of law, is exemplified in Montebon
v. Commission on Elections.
15
The respondent therein, Sesinando F. Potencioso, Jr., was
elected and served three consecutive terms as Municipal Councilor of Tuburan, Cebu in 1998-
2001, 2001-2004, and 2004-2007. However, during his second term, he succeeded as Vice-
Mayor of Tuburan due to the retirement of the Vice-Mayor pursuant to Section 44 of R.A. No.
7160.
16
Potencioso's assumption of office as Vice-Mayor was considered an involuntary
severance from his office as Municipal Councilor, resulting in an interruption in his second term
of service.
17
The Court held that it could not be deemed to have been by reason of voluntary
renunciation because it was by operation of law.
18
Hence, Potencioso was qualified to run as
candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007
Synchronized National and Local Elections.
Further, in Borja, Jr. v. Commission on Elections,
19
respondent therein, Jose T. Capco, Jr., was
elected as Vice-Mayor of Pateros on January 18, 1988 for a term ending on June 30, 1992. On
September 2, 1989, Capco became Mayor, by operation of law, upon the death of the
incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for two more
terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor
of Pateros in the May 11, 1998 election. Capco's disqualification was sought on the ground that
he would have already served as Mayor for three consecutive terms by June 30, 1998; hence,
he would be ineligible to serve for another term. The Court declared that the term limit for
elective local officials must be taken to refer to the right to be elected as well as the right to
serve the same elective position.
20
The Court held that Capco was qualified to run again as
mayor in the next election because he was not elected to the office of mayor in the first term but
simply found himself thrust into it by operation of law.
21
Neither had he served the full term
because he only continued the service, interrupted by the death, of the deceased mayor.
22
The
vice-mayor's assumption of the mayorship in the event of the vacancy is more a matter of
chance than of design.
23
Hence, his service in that office should not be counted in the
application of any term limit.
24

n this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead
relinquished his office as Punong arangay during his third term when he won and assumed
office as Sangguniang ayan member of Dauis, Bohol, which is deemed a voluntary
renunciation of the Office of Punong arangay.
n fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the Resolutions dated March 4, 2008 and August 7, 2008, disqualifying
petitioner from being a candidate for Punong arangay in the October 29,
2007 arangay and Sangguniang Kabataan Elections.
WHEREFORE, the petition is DSMSSED. The COMELEC Resolutions dated March 4, 2008
and August 7, 2008 are hereby AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184836 : December 23, 2009
SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N.
TALABONG, Petitioners, vs. COMMISSION ON ELECTIONS AND ILFREDO F.
ASILO, Respondents. chanroblesvirtualawlibary
D E C I S I O N
BRION, J.:
s the preventive suspension of an elected public official an interruption of his term of office for
purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section
43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)?
The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an
effective interruption because it renders the suspended public official unable to provide
complete service for the full term; thus, such term should not be counted for the purpose of the
three-term limit rule. chanroblesvirtualawlibary
The present petition
1
cralaw seeks to annul and set aside this COMELEC ruling for having been
issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. chanroblesvirtualawlibary
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three
consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. n
September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively
suspended him for 90 days in relation with a criminal case he then faced. This Court, however,
subsequently lifted the Sandiganbayan's suspension order; hence, he resumed performing the
functions of his office and finished his term.
n the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners
Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to
deny due course to Asilo's certificate of candidacy or to cancel it on the ground that he had
been elected and had served for three terms; his candidacy for a fourth term therefore violated
the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA
7160. chanroblesvirtualawlibary
The COMELEC's Second Division ruled against the petitioners and in Asilo's favour in its
Resolution of November 28, 2007. t reasoned out that the three-term limit rule did not apply, as
Asilo failed to render complete service for the 2004-2007 term because of the suspension the
Sandiganbayan had ordered. chanroblesvirtualawlibary
The COMELEC en banc refused to reconsider the Second Division's ruling in its October 7,
2008 Resolution; hence, the PRESENT PETTON raising the following SSUES:
1. Whether preventive suspension of an elected local official is an interruption of the
three-term limit rule; and
2. Whether preventive suspension is considered involuntary renunciation as
contemplated in Section 43(b) of RA 7160
Thus presented, the case raises the direct issue of whether Asilo's preventive suspension
constituted an interruption that allowed him to run for a 4th term. chanroblesvirtualawlibary
THE COURT'S RULNG
We find the petition meritorious. chanroblesvirtualawlibary
General Considerations
The present case is not the first before this Court on the three-term limit provision of the
Constitution, but is the first on the effect of preventive suspension on the continuity of an
elective official's term. To be sure, preventive suspension, as an interruption in the term of an
elective public official, has been mentioned as an example in Borja v. Commission on
Elections.
2
cralawDoctrinally, however, Borja is not a controlling ruling; it did not deal with
preventive suspension, but with the application of the three-term rule on the term that an
elective official acquired by succession. chanroblesvirtualawlibary
a. The Three-term Limit RuIe:
The ConstitutionaI Provision AnaIyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected. chanroblesvirtualawlibary
Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in
wording does not assume any significance in this case. chanroblesvirtualawlibary
As worded, the constitutional provision fixes the term of a local elective office and limits an
elective official's stay in office to no more than three consecutive terms. This is the first branch
of the rule embodied in Section 8, Article X. chanroblesvirtualawlibary
Significantly, this provision refers to a "term" as a period of time ' three years ' during which an
official has title to office and can serve. Appari v. Court of Appeals,
3
cralaw a Resolution
promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as follows:
The word "term" in a IegaI sense means a fixed and definite period of time which the Iaw
describes that an officer may hoId an office. According to Mechem, the term of office is the
period during which an office may be held. Upon expiration of the officer's term, unless he is
authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto
cease. n the law of public officers, the most and natural frequent method by which a public
officer ceases to be such is by the expiration of the terms for which he was elected or
appointed. [Emphasis supplied]. chanroblesvirtualawlibary
A later case, Gaminde v. Commission on Audit,
4
cralaw reiterated that "[T]he term means the
time during which the officer may claim to hold office as of right, and fixes the interval after
which the several incumbents shall succeed one another."
The "limitation" under this first branch of the provision is expressed in the negative ' "no such
official shall serve for more than three consecutive terms." This formulation ' no more than three
consecutive terms ' is a clear command suggesting the existence of an inflexible rule. While it
gives no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the
meaning is clear ' reference is to the term, not to the service that a public official may render. n
other words, the limitation refers to the term. chanroblesvirtualawlibary
The second branch relates to the provision's express initiative to prevent any circumvention of
the limitation through voluntary severance of ties with the public office; it expressly states that
voluntary renunciation of office "shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected." This declaration complements
the termlimitation mandated by the first branch. chanroblesvirtualawlibary
A notable feature of the second branch is that it does not textually state that voluntary
renunciation is the only actual interruption of service that does not affect "continuity of service
for a full term" for purposes of the three-term limit rule. t is a pure declaratory statement of what
does not serve as an interruption of service for a full term, but the phrase "voluntary
renunciation," by itself, is not without significance in determining constitutional
intent. chanroblesvirtualawlibary
The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give
up, abandon, decline, or resign.
5
cralawt is an act that emanates from its author, as contrasted
to an act that operates from the outside. Read with the definition of a "term" in mind,
renunciation, as mentioned under the second branch of the constitutional provision, cannot but
mean an act that results in cutting short the term, i.e., the loss of title to office. The descriptive
word "voluntary" linked together with "renunciation" signifies an act of surrender based on the
surenderee's own freely exercised will; in other words, a loss of title to office by conscious
choice. n the context of the three-term limit rule, such loss of title is not considered an
interruption because it is presumed to be purposely sought to avoid the application of the term
limitation. chanroblesvirtualawlibary
The following exchanges in the deliberations of the Constitutional Commission on the term
"voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":
MR. MAAMBONG. Could address the clarificatory question to the Committee? This term
"voluntary renunciation" does not appear in Section 3 [of Article V]; it also appears in Section 6
[of Article V]. chanroblesvirtualawlibary
MR DAVDE. Yes. chanroblesvirtualawlibary
MR. MAAMBONG. t is also a recurring phrase all over the Constitution. Could the Committee
please enlighten us exactly what "voluntary renunciation" mean? s this akin to abandonment?
MR. DAVDE. Abandonment is voluntary. n other words, he cannot circumvent the restriction by
merely resigning at any given time on the second term. chanroblesvirtualawlibary
MR. MAAMBONG. s the Committee saying that the term "voluntary renunciation" is more
general than abandonment and resignation?
MR. DAVDE. t is more general, more embracing.
6
cralaw cralaw
From this exchange and Commissioner Davide's expansive interpretation of the term "voluntary
renunciation," the framers' intent apparently was to close all gaps that an elective official may
seize to defeat the three-term limit rule, in the way that voluntary renunciation has been
rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text of
the constitutional provision, we note further that Commissioner Davide's view is consistent with
the negative formulation of the first branch of the provision and the inflexible interpretation that it
suggests. chanroblesvirtualawlibary
This examination of the wording of the constitutional provision and of the circumstances
surrounding its formulation impresses upon us the clear intent to make term limitation a high
priority constitutional objective whose terms must be strictly construed and which cannot be
defeated by, nor sacrificed for, values of less than equal constitutional worth. We view
preventive suspension vis--vis term limitation with this firm mindset. chanroblesvirtualawlibary
b. ReIevant Jurisprudence on the
Three-term Limit RuIe
Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within
the provision's contemplation, particularly on the "interruption in the continuity of service for the
full term" that it speaks of. chanroblesvirtualawlibary
Lonzanida v. Commission on Elections
7
cralaw presented the question of whether the
disqualification on the basis of the three-term limit applies if the election of the public official (to
be strictly accurate, the proclamation as winner of the public official) for his supposedly third
term had been declared invalid in a final and executory judgment. We ruled that the two
requisites for the application of the disqualification (viz., 1. that the official concerned has been
elected for three consecutive terms in the same local government post; and 2. that he has fully
served three consecutive terms) were not present. n so ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-
term limit by a voluntary renunciation of office and at the same time respect the people's choice
and grant their elected official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the computation of the three term
limit; conversely, involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. The petitioner vacated his
post a few months before the next mayoral elections, not by voluntary renunciation but in
compliance with the legal process of writ of execution issued by the COMELEC to that effect.
Such involuntary severance from office is an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss
of title, that renders the three-term limit rule inapplicable. chanroblesvirtualawlibary
Ong v. Alegre
8
cralaw and Rivera v. COMELEC,
9
cralaw like Lonzanida, also involved the issue
of whether there had been a completed term for purposes of the three-term limit disqualification.
These cases, however, presented an interesting twist, as their final judgments in the electoral
contest came after the term of the contested office had expired so that the elective officials in
these cases were never effectively unseated. chanroblesvirtualawlibary
Despite the ruling that Ong was never entitled to the office (and thus was never validly elected),
the Court concluded that there was nevertheless an election and service for a full term in
contemplation of the three-term rule based on the following premises: (1) the final decision that
the third-termer lost the election was without practical and legal use and value, having been
promulgated after the term of the contested office had expired; and (2) the official assumed and
continuously exercised the functions of the office from the start to the end of the term. The Court
noted in Ong the absurdity and the deleterious effect of a contrary view ' that the official
(referring to the winner in the election protest) would, under the three-term rule, be considered
to have served a term by virtue of a veritably meaningless electoral protest ruling, when another
actually served the term pursuant to a proclamation made in due course after an election. This
factual variation led the Court to rule differently fromLonzanida. chanroblesvirtualawlibary
n the same vein, the Court in Rivera rejected the theory that the official who finally lost the
election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court
obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when
an official fully served in the same position for three consecutive terms. Whether as "caretaker"
or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that
enabled him "to stay on indefinitely."
Ong and Rivera are important rulings for purposes of the three-term limitation because of what
they directly imply. Although the election requisite was not actually present, the Court still gave
full effect to the three-term limitation because of the constitutional intent to strictly limit elective
officials to service for three terms. y so ruling, the Court signalled how zealously it guards the
three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule
in favor of limitation rather than its exception. chanroblesvirtualawlibary
Adormeo v. Commission on Elections
10
cralaw dealt with the effect of recall on the three-term
limit disqualification. The case presented the question of whether the disqualification applies if
the official lost in the regular election for the supposed third term, but was elected in a recall
election covering that term. The Court upheld the COMELEC's ruling that the official was not
elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the
official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat
in the election for the third term. chanroblesvirtualawlibary
Socrates v. Commission on Elections
11
cralaw also tackled recall vis--vis the three-term limit
disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to
run for a fourth term, he did not participate in the election that immediately followed his third
term. n this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than
1 ' years after Mayor Socrates assumed the functions of the office, recall proceedings were
initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of
candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground
that he (Hagedorn) had fully served three terms prior to the recall election and was therefore
disqualified to run because of the three-term limit rule. We decided in Hagedorn's favor, ruling
that:
After three consecutive terms, an elective local official cannot seek immediate reelection for a
fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent election, like a recall election, is
no longer covered by the prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after three consecutive terms. Second, the
intervening period constitutes an involuntary interruption in the continuity of
service. chanroblesvirtualawlibary
When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether
there would be "no immediate reelection" after three terms. chanroblesvirtualawlibary
x x x x
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following
three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection
for a fourth term as long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third
term. chanroblesvirtualawlibary
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in
any other subsequent election involving the same term of office. What the Constitution prohibits
is a consecutive fourth term.
12
cralaw cralaw
Latasa v. Commission on Elections
13
cralaw presented the novel question of whether a
municipal mayor who had fully served for three consecutive terms could run as city mayor in
light of the intervening conversion of the municipality into a city. During the third term, the
municipality was converted into a city; the cityhood charter provided that the elective officials of
the municipality shall, in a holdover capacity, continue to exercise their powers and functions
until elections were held for the new city officials. The Court ruled that the conversion of the
municipality into a city did not convert the office of the municipal mayor into a local government
post different from the office of the city mayor ' the territorial jurisdiction of the city was the same
as that of the municipality; the inhabitants were the same group of voters who elected the
municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the
municipal mayor held power and authority as their chief executive for nine years. The Court
said:
This Court reiterates that 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
eighteenconsecutive years. This is the very scenario sought to be avoided by the Constitution, if
not abhorred by it.
14
cralaw cralaw
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no
three-term limit violation results if a rest period or break in the service between terms or tenure
in a given elective post intervened. n Lonzanida, the petitioner was a private citizen with no title
to any elective office for a few months before the next mayoral elections. Similarly,
in Adormeo andSocrates, the private respondents lived as private citizens for two years and
fifteen months, respectively. Thus, these cases establish that the law contemplates a complete
break from office during which the local elective official steps down and ceases to exercise
power or authority over the inhabitants of the territorial jurisdiction of a particular local
government unit. chanroblesvirtualawlibary
Seemingly differing from these results is the case of Montebon v. Commission on
Elections,
15
cralaw where the highest-ranking municipal councilor succeeded to the position of
vice-mayor by operation of law. The question posed when he subsequently ran for councilor
was whether his assumption as vice-mayor was an interruption of his term as councilor that
would place him outside the operation of the three-term limit rule. We ruled that an interruption
had intervened so that he could again run as councilor. This result seemingly deviates from the
results in the cases heretofore discussed since the elective official continued to hold public
office and did not become a private citizen during the interim. The common thread that identifies
Montebon with the rest, however, is that the elective official vacated the office of councilor and
assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be
councilor ' an interruption that effectively placed him outside the ambit of the three-term limit
rule. chanroblesvirtualawlibary
c. ConcIusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exempting an elective official
from the three-term limit rule is one that involves no less than the involuntary loss of title to
office. The elective official must have involuntarily left his office for a length of time, however
short, for an effective interruption to occur. This has to be the case if the thrust of Section 8,
Article X and its strict intent are to be faithfully served, i.e., to limit an elective official's
continuous stay in office to no more than three consecutive terms, using "voluntary
renunciation" as an example and standard of what does not constitute an
interruption. chanroblesvirtualawlibary
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term, as we held in Montebon. On the other hand, temporary
inability or disqualification to exercise the functions of an elective post, even if involuntary,
should not be considered an effective interruption of a term because it does not involve the loss
of title to office or at least an effective break from holding office; the office holder, while retaining
title, is simply barred from exercising the functions of his office for a reason provided by
law. chanroblesvirtualawlibary
An interruption occurs when the term is broken because the office holder lost the right to hold on
to his office, and cannot be equated with the failure to render service. The latter occurs during
an office holder's term when he retains title to the office but cannot exercise his functions for
reasons established by law. Of course, the term "failure to serve" cannot be used once the right
to office is lost; without the right to hold office or to serve, then no service can be rendered so
that none is really lost. chanroblesvirtualawlibary
To put it differently although at the risk of repetition, Section 8, Article X ' both by structure and
substance ' fixes an elective official's term of office and limits his stay in office to three
consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation
as an example of a circumvention. The provision should be read in the context of interruption of
term, not in the context of interrupting the full continuity of the exercise of the powers of the
elective position. The "voluntary renunciation" it speaks of refers only to the elective official's
voluntary relinquishment of office and loss of title to this office. t does not speak of the
temporary "cessation of the exercise of power or authority" that may occur for various reasons,
with preventive suspension being only one of them. To quote Latasa v.
Comelec:
16
cralaw cralaw
ndeed, [T]he law contemplates a rest period during which the local elective official steps down
from office and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit. [Emphasis supplied]. chanroblesvirtualawlibary
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension ' whether under the Local Government Code,
17
cralaw the Anti-Graft and
Corrupt Practices Act,
18
cralaw or the Ombudsman Act
19
cralaw ' is an interim remedial measure
to address the situation of an official who have been charged administratively or criminally,
where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or
liability.chanroblesvirtualawlibary
Preventive suspension is imposed under the Local Government Code "when the evidence of
guilt is strong and given the gravity of the offense, there is a 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." Under the Anti-Graft and Corrupt Practices Act, it is imposed
after a valid information (that requires a finding of probable cause) has been filed in court, while
under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the
evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; or (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. chanroblesvirtualawlibary
Notably in all cases of preventive suspension, the suspended official is barred from performing
the functions of his office and does not receive salary in the meanwhile, but does not vacate and
lose title to his office; loss of office is a consequence that only results upon an eventual finding
of guilt or liability. chanroblesvirtualawlibary
Preventive suspension is a remedial measure that operates under closely-controlled conditions
and gives a premium to the protection of the service rather than to the interests of the individual
office holder. Even then, protection of the service goes only as far as a temporary prohibition on
the exercise of the functions of the official's office; the official is reinstated to the exercise of his
position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the
exercise of power results, no position is vacated when a public official is preventively
suspended. This was what exactly happened to Asilo. chanroblesvirtualawlibary
That the imposition of preventive suspension can be abused is a reality that is true in the
exercise of all powers and prerogative under the Constitution and the laws. The imposition of
preventive suspension, however, is not an unlimited power; there are limitations built into the
laws
20
cralaw themselves that the courts can enforce when these limitations are transgressed,
particularly when grave abuse of discretion is present. n light of this well-defined parameters in
the imposition of preventive suspension, we should not view preventive suspension from the
extreme situation ' that it can totally deprive an elective office holder of the prerogative to serve
and is thus an effective interruption of an election official's term. chanroblesvirtualawlibary
Term limitation and preventive suspension are two vastly different aspects of an elective
officials' service in office and they do not overlap. As already mentioned above, preventive
suspension involves protection of the service and of the people being served, and prevents the
office holder from temporarily exercising the power of his office. Term limitation, on the other
hand, is triggered after an elective official has served his three terms in office without any break.
ts companion concept ' interruption of a term ' on the other hand, requires loss of title to office.
f preventive suspension and term limitation or interruption have any commonality at all, this
common point may be with respect to the discontinuity of service that may occur in both. But
even on this point, they merely run parallel to each other and never intersect; preventive
suspension, by its nature, is a temporary incapacity to render service during an unbroken
term; in the context of term limitation, interruption of service occurs after there has been abreak
in the term.
b. Preventive Suspension and the Intent of the Three-Term Limit RuIe
Strict adherence to the intent of the three-term limit rule demands that preventive suspension
should not be considered an interruption that allows an elective official's stay in office beyond
three terms. A preventive suspension cannot simply be a term interruption because the
suspended official continues to stay in office although he is barred from exercising the functions
and prerogatives of the office within the suspension period. The best indicator of the suspended
official's continuity in office is the absence of a permanent replacement and the lack of the
authority to appoint one since no vacancy exists. chanroblesvirtualawlibary
To allow a preventively suspended elective official to run for a fourth and prohibited term is to
close our eyes to this reality and to allow a constitutional violation through sophistry by equating
the temporary inability to discharge the functions of office with the interruption of term that the
constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary '
some of them personal and some of them by operation of law ' that may temporarily prevent an
elective office holder from exercising the functions of his office in the way that preventive
suspension does. A serious extended illness, inability through force majeure, or the
enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an
office holder from exercising the functions of his office for a time without forfeiting title to office.
Preventive suspension is no different because it disrupts actual delivery of service for a time
within a term. Adopting such interruption of actual service as the standard to determine effective
interruption of term under the three-term rule raises at least the possibility of confusion in
implementing this rule, given the many modes and occasions when actual service may be
interrupted in the course of serving a term of office. The standard may reduce the enforcement
of the three-term limit rule to a case-to-case and possibly see-sawing determination of what an
effective interruption is. chanroblesvirtualawlibary
c. Preventive Suspension and VoIuntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a voluntary
act on the part of the suspended official, except in the indirect sense that he may have
voluntarily committed the act that became the basis of the charge against him. From this
perspective, preventive suspension does not have the element of voluntariness that voluntary
renunciation embodies. Neither does it contain the element of renunciation or loss of title to
office as it merely involves the temporary incapacity to perform the service that an elective office
demands. Thus viewed, preventive suspension is ' by its very nature ' the exact opposite of
voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery of
service, not the title to the office. The easy conclusion therefore is that they are, by nature,
different and non-comparable. chanroblesvirtualawlibary
But beyond the obvious comparison of their respective natures is the more important
consideration of how they affect the three-term limit rule. chanroblesvirtualawlibary
Voluntary renunciation, while involving loss of office and the total incapacity to render service, is
disallowed by the Constitution as an effective interruption of a term. t is therefore not allowed as
a mode of circumventing the three-term limit rule. chanroblesvirtualawlibary
Preventive suspension, by its nature, does not involve an effective interruption of a term and
should therefore not be a reason to avoid the three-term limitation. t can pose as a threat,
however, if we shall disregard its nature and consider it an effective interruption of a term. Let it
be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it
does not require relinquishment or loss of office even for the briefest time. t merely requires an
easily fabricated administrative charge that can be dismissed soon after a preventive
suspension has been imposed. n this sense, recognizing preventive suspension as an effective
interruption of a term can serve as a circumvention more potent than the voluntary renunciation
that the Constitution expressly disallows as an interruption. chanroblesvirtualawlibary
ConcIusion
To recapitulate, Asilo's 2004-2007 term was not interrupted by the Sandiganbayan-imposed
preventive suspension in 2005, as preventive suspension does not interrupt an elective official's
term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the
Constitution when it granted due course to Asilo's certificate of candidacy for a prohibited fourth
term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting
to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no
less than the Constitution and was one undertaken outside the contemplation of
law.
21
cralaw cralaw
WHEREFORE, premises considered, we GRANT the petition and accordingly NULLFY the
assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared
DSQUALFED to run, and perforce to serve, as Councilor of Lucena City for a prohibited fourth
term. Costs against private respondent Asilo. chanroblesvirtualawlibary
SO ORDERED. Chanrobles

EN BANC
G.R. Nos. 146710-1. ApriI 3, 2001]
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as
Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE
VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondents.
G.R. No. 146738. ApriI 3, 2001]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.
R E S O L U T I O N
PUNO, J.:
For resolution are petitioner's Motion for Reconsideration in G.R. Nos. 146710-15 and
Omnibus Motion in G.R. No. 146738 of the Court's Decision of March 2, 2001.
n G.R. Nos. 146710-15, petitioner raises the following grounds:
". T DSREGARDED THE CLEAR AND EXPLCT PROVSONS OF ART. X,
SECTON 3 (7) OF THE CONSTTUTON AND THE SETTLED JURSPRUDENCE
THEREON.
. T HELD THAT PETTONER CAN BE PROSECUTED NOW, FOR THS RULNG
WOULD VOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTTUTON,
CONSDERNG THAT PETTONER WAS ACQUTTED N THE MPEACHMENT
PROCEEDNGS.
. T HELD THAT PETTONER S NO LONGER ENTTLED TO ABSOLUTE
MMUNTY FROM SUT.
V. T HELD THAT PETTONER'S DUE PROCESS RGHTS TO A FAR TRAL HAVE
NOT BEEN PREJUDCED BY PRE-TRAL PUBLCTY.
V. T HELD THAT THERE S NOT ENOUGH EVDENCE TO WARRANT THE COURT
TO ENJON THE PRELMNARY NVESTGATON OF THE NCUMBENT
OMBUDSMAN, PETTONER HAVNG FALED TO PROVE THE MPARED
CAPACTY OF THE OMBUDSMAN TO RENDER A BASED FREE DECSON.
n G.R. No. 146738, petitioner raises and argues the following issues:
1. WHETHER PETTONER RESGNED OR SHOULD BE CONSDERED RESGNED
AS OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DARY S NADMSSBLE FOR BENG VOLATVE OF
THE FOLLOWNG RULES ON EVDENCE: HEARSAY, BEST EVDENCE,
AUTHENTCATON, ADMSSONS AND RES ITER ALIOS ACTA;
3. WHETHER RELANCE ON NEWSPAPER ACOUNTS S VOLATVE OF THE
HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECDE PETTONER'S NABLTY
TO GOVERN CONSDERNG SECTON 11, ARTCLE V OF THE
CONSTTUTON; and
5. WHETHER PREJUDCAL PUBLCTY HAS AFFECTED PETTONER'S RGHT
TO FAR TRAL.
We find the contentions of petitioner bereft of merit.
I
PrejudiciaI PubIicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the
Decision for adverting to newspaper accounts of the events and occurrences to reach the
conclusion that he has resigned. n our Decision, we used the totality test to arrive at the
conclusion that petitioner has resigned. We referred to and analyzed events that were prior,
contemporaneous and posterior to the oath-taking of respondent Arroyo as president. AII these
events are facts which are weII-estabIished and cannot be refuted. Thus, we adverted to
prior events that built up the irresistible pressure for the petitioner to resign. These are: (1) the
expose of Governor Luis "Chavit Singson on October 4, 2000; (2) the " accuse speech of then
Senator Teofisto Guingona in the Senate; (3) the joint investigation of the speech of Senator
Guingona by the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of
the Singson expose by the House Committee on Public Order and Security; (5) the move to
impeach the petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop
Jaime Cardinal Sin demanding petitioner's resignation; (7) a similar demand by the Catholic
Bishops conference; (8) the similar demands for petitioner's resignation by former Presidents
Corazon C. Aquino and Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary
of the DSWD and her call for petitioner to resign; (10) the resignation of the members of
petitioner's Council of Senior Economic Advisers and of Secretary Mar Roxas from the
Department of Trade and ndustry; (11) the defection of then Senate President Franklin Drilon
and then Speaker of the House of Representatives Manuel Villar and forty seven (47)
representatives from petitioner's Lapiang Masang Pilipino; (12) the transmission of the Articles
of mpeachment by Speaker Villar to the Senate; (13) the unseating of Senator Drilon as Senate
President and of Representative Villar as Speaker of the House; (14) the impeachment trial of
the petitioner; (15) the testimonies of Clarissa Ocampo and former Finance Secretary Edgardo
Espiritu in the impeachment trial; (16) the 11-10 vote of the senator-judges denying the
prosecutor's motion to open the 2nd envelope which allegedly contained evidence showing that
petitioner held a P3.3 billion deposit in a secret bank account under the name of "Jose Velarde;
(17) the prosecutors' walkout and resignation; (18) the indefinite postponement of the
impeachment proceedings to give a chance to the House of Representatives to resolve the
issue of resignation of their prosecutors; (19) the rally in the EDSA Shrine and its intensification
in various parts of the country; (20) the withdrawal of support of then Secretary of National
Defense Orlando Mercado and the then Chief of Staff, General Angelo Reyes, together with the
chiefs of all the armed services; (21) the same withdrawal of support made by the then Director
General of the PNP, General Panfilo Lacson, and the major service commanders; (22) the
stream of resignations by Cabinet secretaries, undersecretaries, assistant secretaries and
bureau chiefs; (23) petitioner's agreement to hold a snap election and opening of the
controversial second envelope. AII these prior events are facts which are within judiciaI
notice by this Court. There was no need to cite their news accounts. The reference by
the Court to certain newspapers reporting them as they happened does not make them
inadmissibIe evidence for being hearsay. The news account onIy buttressed these facts
as facts. For aII his Ioud protestations, petitioner has not singIed out any of these facts
as faIse.
We now come to some events of January 20, 2001 contemporaneous to the oath taking of
respondent Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the
petitioner. Let it be emphasized that it is not unusual for courts to distill a person's subjective
intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in
civil law cases involving last wills and testaments, in commercial cases involving contracts and
in other similar cases. As will be discussed below, the use of the Angara Diary is not prohibited
by the hearsay rule. Petitioner may disagree with some of the inferences arrived at by the Court
from the facts narrated in the Diary but that does not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine some events
posterior to the oath-taking of respondent Arroyo. Specifically, we analyzed the all important
press release of the petitioner containing his finaI statement which was issued after the oath-
taking of respondent Arroyo as president. After analyzing its content, we ruled that petitioner's
issuance of the press release and his abandonemnt of Malacaang Palace confirmed his
resignation.
[1]
These are overt acts which leave no doubt to the Court that the petitioner has
resigned.
In Iight of this finding that petitioner has resigned before 12 o'cIock noon of Janaury
20, 2001, the cIaim that the office of the President was not vacant when respondent
Arroyo took her oath of office at haIf past noon of the same day has no Ieg to stand on.
We also reject the contention that petitioner's resignation was due to duress and
an invoIuntary resignation is no resignation at all.
"x x x []t has been said that, in determining whether a given resignation is voluntarily tendered,
the element of voluntariness is vitiated only when the resignation is submitted under duress
brought on by government action. The three-part test for such duress has been stated as
involving the following elements: (1) whether one side involuntarily accepted the other's terms;
(2) whether circumstances permitted no other alternative; and (3) whether such circumstances
were the result of coercive acts of the opposite side. The view has also been expressed that a
resignation may be found involuntary if on the totaIity of the circumstances it appears that the
employer's conduct in requesting resignation effectively deprived the employer of free choice
in the matter. Factors to be considered, under this test, are: (1) whether the employee was
given some alternative to resignation; (2) whether the employee understood the nature of the
choice he or she was given; (3) whether the employewe was given a reasonable time in which
to choose; and (4) whether he or she was permitted to select the effective date of
resignation. n applying this totality of the circumstances test, the assessment whether real
alternatives were offered must be gauged by an objective standard rather than by the
employee's purely subjective evaluation; that the empIoyee may perceive his or her onIy
option to be resignation - for exampIe, because of concerns about his or her reputation -
is irreIevant. SimiIarIy, the mere fact that the choice is between comparabIy unpIeasant
aIternatives - for exampIe, resignation or facing discipIinary charges - does not of itseIf
estabIish that a resignation was induced by duress or coercion, and was therefore
invoIuntary. This is so even where the only alternative to resignation is facing possible
termination for cause, unless the employer actually lacked good cause to believe that grounds
for termination existed. n this regard it has also been said that a resignation resulting from a
choice between resigning or facing proceedings for dismissal is not tantamount to discharge by
coercion without procedural view if the employee is given sufficient time and opportunity for
deliberation of the choice posed. Futhermore, a resignation by an officer charged with
misconduct is not given under duress, though the appropriate authority has already determined
that the officer's alternative is termination, where such authority has the legal authority to
terminate the officer's employment under the particular circumstances, since it is not duress to
threaten to do what one has the legal right to do, or to threaten to take any measure authorized
by law and the circumstances of the case.
[2]

n the cases at bar, petitioner had severaI options available to him other than
resignation. He proposed to the holding of snap elections. He transmitted to the Congress a
written declaration of temporary inability. He could not claim he was forced to resign because
immediately before he left Malacaang, he asked Secretary Angara: "Ed, aalis na ba ako?
which implies that he still had a choice of whether or not to leave.
To be sure, pressure was exerted for the petitioner to resign. But it is difficuIt to
beIieve that the pressure compIeteIy vitiated the voIuntariness of the petitioner's
resignation. The Malacaang ground was then fully protected by the Presidential Security
Guard armed with tanks and high-powered weapons. The then Chief of Staff, General Angelo
Reyes, and other military officers were in Malacaang to assure that no harm would befall the
petitioner as he left the Palace. ndeed, no harm, not even a scratch, was suffered by the
petitioner, the members of his family and his Cabinet who stuck it out with him in his last
hours. Petitioner's entourage was even able to detour safely to the Municipal Hall of San Juan
and bade goodbye to his followers before finally going to his residence in Polk Street,
Greenhills. The only incident before the petitioner left the Palace was the stone throwing
between a small group of pro and anti Erap rallyists which resulted in minor injuries to a few of
them. Certainly, there were no tanks that rumbled through the Palace, no attack planes that
flew over the presidential residence, no shooting, no large scale violence, except verbal
violence, to justify the conclusion that petitioner was coerced to resign.
II
Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this Court
of the Angara Diary. t is urged that the use of the Angara Diary to determine the state of mind
of the petitioner on the issue of his resignation violates the rule against the admission
of hearsay evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of court
statement. The Angara Diary is part of the pIeadings in the cases at bar. Petitioner cannot
complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its
use. To be sure, the said Diary was frequently referred to by the parties in their
pleadings.
[3]
The three parts of the Diary published in the PD from February 4-6, 2001 were
attached as Annexes A-C, respectively, of the Memorandum of private respondents Romeo T.
Capulong, et al., dated February 20, 2001. The second and third parts of the Diary were earlier
also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et al.,
dated February 12, 2001. n fact, petitioner even cited in his Second Supplemental Reply
Memorandum both the second part of the diary, published on February 5, 2001,
[4]
and the third
part, published on February 6, 2001.
[5]
t was also extensively used by Secretary of Justice
Hernando Perez in his oral arguments. Thus, petitioner had all the opportunity to contest the
use of the Diary but unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court statement, still its use
is not covered bythe hearsay rule.
[6]
Evidence is called hearsay when its probative force
depends, in whole or in part, on the competency and credibility of some persons other than the
witness by whom it is sought to produce it.
[7]
There are three reasons for excluding hearsay
evidence: (1) absence of cross examination; (2) absence of demeanor evidence, and (3)
absence of the oath.
[8]
Not at all hearsay evidence, however, is inadmissible as evidence. Over
the years, a huge body of hearsay evidence has been admitted by courts due to their relevance,
trustworthiness and necessity.
[9]
The emergence of these exceptions and their wide spread
acceptance is well-explained by Weinstein, Mansfield, Abrams and Berger as follows:
"x x x
On the other hand, we all make decisions in our everyday lives on the basis of other persons'
accounts of what happened, and verdicts are usually sustained and affirmed even if they are
based on hearsay erroneously admitted, or admitted because no objection was made. See
Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone can support
a verdict). Although volumes have been written suggesting ways to revise the hearsay rule, no
one advocates a rule that would bar all hearsay evidence. Indeed, the decided historicaI
trend has been to excIude categories of highIy probative statements from the definition
of hearsay (sections 2 and 3, infra), and to deveIop more cIass exceptions to the hearsay
ruIe (sections 4-11, infra). Furthermore, many states have added to their ruIes the
residuaI, or catch-aII, exceptions first pioneered by the FederaI RuIes which authorize the
admission of hearsay that does not satisfy a cIass exception, provided it is adequateIy
trustworthy and probative (section 12, infra).
Moreover, some commentators beIieve that the hearsay ruIe shouId be aboIished
aItogether instead of being Ioosened. See, e.g., Note, The Theoretical Foundation of the
Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that '[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice.' Under this
structure, exclusion is justified by fears of how the jury will be influenced by the
evidence. However, it is not traditional to think of hearsay as merely a subdivision of this
structure, and the Federal Rules do not conceive of hearsay in that manner. Prejudice refers to
the jury's use of evidence for inferences other than those for which the evidence is legally
relevant; by contrast, the rule against hearsay questions the jury's ability to evaluate the
strength of a legitimate inference to be drawn from the evidence. For example, were a judge to
exclude testimony because a witness was particularly smooth or convincing, there would be no
doubt as to the usurpation of the jury's function. Thus, unlike prejudices recognized by the
evidence rules, such as those stemming from racial or religious biases or from the introduction
of photographs of a victim's final state, the exclusion of hearsay on the basis of misperception
strikes at the root of the jury's function by usurping its power to process quite ordinary evidence,
the type of information routinely encountered by jurors in their everyday lives.
.
Since virtually all criteria seeking to distinguish between good and bad hearsay are either
incoherent, inconsistent, or indeterminate, the only altenative to a general rule of admission
would be an absolute rule of exclusion, which is surely inferior. More important, the
assumptions necessary to justify a rule against hearsay . seem insupportable and, in any
event, are inconsistent with accepted notions of the function of the jury. Therefore, the hearsay
rules should be abolished.
Some support for this view can be found in the limited empirical research now available which
is, however, derived from simulations that suggests that admitting hearsay has IittIe effect
on triaI outcomes because jurors discount the vaIue of hearsay evidence. See Rakos &
Landsman, Researching the Hearsay Rule: Emerging Findings, General ssues, and Future
Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas, Jury Decision Making and the
Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors'
Perceptions of Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman &
Rakos, Research Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay
Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have some utiIity, question
whether the benefits outweigh the cost:
The cost of maintaining the rule is not just a function of its contribution to justice. t also
includes the time spent on litigating the rule. And of course this is not just a cost voluntarily
borne by the parties, for in our system virtually all the cost of the court salaries, administrative
costs, and capital costs are borne by the public. As expensive as litigation is for the parties, it
is supported by an enormous public subsidy. Each time a hearsay question is Iitigated, the
pubIic pays. The rule imposes other costs as well. Enormous time is spent teaching and
writing about the hearsay rule, which are both costly enterprises. n some law schools, students
spend over half their time in evidence classes learning the intricacies of the hearsay rule, and .
enormous academic resources are expended on the rule.
Allen, Commentary on Professor Friendman's Article: The Evolution of the Hearsay Rule to a
Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in civil
cases). See also Friedman, Toward a Partial Economic, Game-Theoretic Analysis of Hearsay,
76 Minn. L. Rev. 723 (1992).
[10]

A compIete anaIysis of any hearsay problem requires that we further determine whether
the hearsay evidence is one exempted from the ruIes of excIusion. A more circumspect
examination of our ruIes of excIusion wiII show that they do not cover admissions of a
party and the Angara Diary beIongs to this cIass. Section 26 of Rule 130 provides that "the
act, declaration or omission of a party as to a relevant fact may be given in evidence against
him.
[11]
It has Iong been settIed that these admissions are admissibIe even if they are
hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities
who explain why admissions are not covered by the hearsay ruIe:
[12]

"igmore, after pointing out that the party's decIaration has generally the probative value of
any other person's asssertion, argued that it had a speciaI vaIue when offered against the
party. n that circumstance, the admission discredits the party's statement with the present
claim asserted in pleadings and testimony, much like a witness impeached by contradictory
statements. Moreover, he continued,admissions pass the gauntIet of the hearsay ruIe,
which requires that extrajudicial assertions be excluded if there was no opportunity for the
opponent to cross-examine because it is the opponent's own declaration, and 'he does not
need to cross examine himseIf.' Wigmore then added that the Hearsay Rule is satisfied since
the party now as opponent has the full opportunity to put himself on the stand and explain his
former assertion. (igmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec.
14, McCormick)
According to Morgan: 'The admissibility of an admission made by the party himself rests not
upon any notion that the circumstances in which it was made furnish the trier means of
evaluating it fairly, but upon the adversary theory of litigation. A party can hardIy object that
he had no opportunity to cross-examine himseIf or that he is unworthy of credence save
when speaking under sanction of an oath.'
A man's acts, conduct, and declaration, wherever made, if voluntary, are admissible against
him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault
if they do not. (U.S. vs. Ching !o, 23 !hil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be categorized
as admissions of a party: his proposal for a snap presidential election where he would not be
a candidate; his statement that he only wanted the five-day period promised by Chief of Staff
Angelo Reyes; his statements that he would leave by Monday if the second envelope would be
opened by Monday and "Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. ( am very tired. don't want any more of this it's too
painful. 'm tired of the red tape, the bureaucracy, the intrigue). just want to clear my name,
then will go. We noted that days before, petitioner had repeatedly declared that he would not
resign despite the growing clamor for his resignation. The reason for the meltdown is obvious -
- - his will not to resign has wilted.
It is, however, argued that the Angara Diary is not the diary of the petitioner, hence,
non-binding on him. The argument overIooks the doctrine of adoptive admission. An
adoptive admission is a party's reaction to a statement or action by another person when it is
reasonable to treat the party's reaction as an admission of something stated or impIied by
the other person.
[13]
Jones explains that the "basis for admissibility of admissions made
vicariousIy is that arising from the ratification or adoption by the party of the statements
which the other person had made.
[14]
To use the blunt language of Mueller and Kirkpatrick,
"this process of attribution is not mumbo jumbo but common sense.
[15]
n the Angara
Diary, the options of the petitioner started to dwindle when the armed forces withdrew its
support from him as President and commander-in-chief. Thus, Executive Secretary Angara had
to ask Senate President Pimentel to advise petitioner to consider the option of "dignified exit or
resignation. Petitioner did not object to the suggested option but simply said he could never
leave the country. Petitioner's silence on this and other related suggestions can be taken as an
admission by him.
[16]

Petitioner further contends that the use of the Angara diary against him violated the rule
on res inter aIios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court,
viz: "The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Again, petitioner errs in his contention. The res inter alios acta rule has severaI
exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by
a co-partner or agent.
Executive Secretary Angara as such was an aIter ego of the petitioner. He was the Little
President. ndeed, he was authorized by the petitioner to act for him in the criticaI hours
and days before he abandoned MaIacaang PaIace. Thus, according to the Angara Diary,
the petitioner told Secretary Angara: "Mula umpisa pa lang ng kampanya, Ed, ikaw na lang
pinakikinggan ko. At hanggang sa huli, ikaw pa rin. (Since the start of the campaign, Ed, you
have been the only one 've listened to. And now at the end, you still are.)
[17]
This statement
of fuII trust was made by the petitioner after Secretary Angara briefed him about the
progress of the first negotiation. True to this trust, the petitioner had to ask Secretary Angara
if he would already leave Malacaang after taking their final lunch on January 20, 2001 at about
1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: "ed,
kailangan ko na bang umalis? (Do have to leave now?)
[18]
Secretary Angara told him to go
and he did. Petitioner cannot deny that Secretary Angara headed his team of negotiators that
met with the team of the respondent Arroyo to discuss the peaceful and orderly transfer of
power after his relinquishment of the powers of the presidency. The Diary shows that petitioner
was always briefed by Secretary Angara on the progress of their negotiations. Secretary
Angara acted for and in behaIf of the petitionerin the crucial days before respondent Arroyo
took her oath as President. Consequently, petitioner is bound by the acts and decIarations
of Secretary Angara.
Under our ruIes of evidence, admissions of an agent (Secretary Angara) are binding
on the principaI (petitioner).
[19]
Jones very well explains the reasons for the ruIe, viz: "What
is done, by agent, is done by the principal through him, as through a mere instrument. So,
whatever is said by an agent, either in making a contract for his principal, or at the time and
accompanying the performance of any act within the scope of his authority, having relation to,
and connected with, and in the course of the particular contract or transaction in which he is
then engaged, or in the language of the old writers, dum fervet opus is, in legal effect, said by
his principal and admissible in evidence against such principal.
[20]

Moreover, the ban on hearsay evidence does not cover independentIy reIevant
statements. These are statements which are reIevant independentIy of whether they are
true or not. They belong to two (2) cIasses: (1) those statements which are the very facts in
issue, and (2) those statements which are circumstantiaI evidence of the facts in issue. The
second class includes the following:
[21]

a. Statement of a person showing his state of mind, that is, his mental condition,
knowledge, belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the like;
c. Statements of a person from which an inference may be made as to the state of
mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the
latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.
Again, Jones teIIs us why these independentIy reIevant statements are not covered
by the prohibition against hearsay evidence:
[22]

" 1088. Mental State or Condition Proof of Knowledge.- There are a number of comon
issues, forming a general class, in proof of which hearsay is so obviously necessary that it is not
customary to refer to its admissibility as by virtue of any exception to the general exclusionary
rule. Admissibility, in such cases, is as of course. For example, where any mentaI state or
condition is in issue, such as motive, malice, knowledge, intent, assent or dissent, unless
direct testimony of the particular person is to be taken as conclusive of his state of mind,
the onIy method of proof avaiIabIe is testimony of others to the acts or statements of
such person. Where his acts or statements are against his interest, they are plainly admissible
within the rules hereinabove announced as to admissions against interest. And even where not
against interest, if they are so closely connected with the event or transaction in issue as to
constitute one of the very facts in controversy, they become admissibIe of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his
state of mind and are circumstantial evidence of his intent to resign. t also contains statements
of Secretary Angara from which we can reasonably deduce petitioner's intent to resign. They
are admissible and they are not covered by the rule on hearsay. This has long been a quiet
area of our law on evidence and petitioner's attempt to foment a belated tempest cannot receive
our imprimatur.
Petitioner aIso contends that the ruIes on authentication of private writings and best
evidence were violated in our Decision, viz:
"The use of the Angara diary palpably breached several hornbook rules of evidence, such as
the rule on authentication of private writings.
x x x
A. Rule on Proof of Private Writings Violated
The rule governing private documents as evidence was violated. The law provides that before
any private writing offered as authentic is received in evidence, its due execution and
authenticity must be proved either: a) by anyone who saw the document executed or written, or
b) by evidence of the genuineness of the signature or handwriting of the maker.
x x x
B. Best Evidence Rule nfringed
Clearly, the newspaper reproduction is not the best evidence of the Angara diary. t is
secondary evidence, of dubious authenticity. t was however used by this Honorable Court
without proof of the unavailability of the original or duplicate original of the diary. The "Best
Evidence Rule should have been applied since the contents of the diary are the subject of
inquiry.
The rule is that, except in four (4) specific instances, "[w]hen the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself.
[23]

Petitioner's contention is without merit. n regard to the Best Evidence ruIe, the Rules of
Court provides in sections 2 to 4 of Rule 130, as follows:
"Sec. 2. Documentary evidence. Documents as evidence consist of writings or any material
containing letters, words, numbers, figures or other modes of written expressions offered as
proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document itself,
except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is
only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a
public office.
Sec. 4. Original of document. (a) The original of a document is one the contents of which are
the subject of inquiry.
(b) When a document is in two or more copies executed at or about the same time, with
identical contents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular course of business, one being copied from another
at or near the time of the transaction, all the entries are likewise equally regarded as originals.
t is true that the Court relied not upon the original but only copy of the Angara Diary as
published in the Philippine Daily nquirer on February 4-6, 2001. n doing so, the Court, did
not, however, vioIate the best evidence ruIe. igmore, in his book on evidence, states that:
"Production of the original may be dispensed with, in the trial court's discretion, whenever in the
case in hand the opponent does not bona fide dispute the contents of the document and
no other useful purpose will be served by requiring production.
[24]

"x x x
"n several Canadian provinces, the principle of unavailability has been abandoned, for certain
documents in which ordinarily no real dispute arised. This measure is a sensible and
progressive one and deserves universal adoption (post, sec. 1233). ts essential feature is that
a copy may be used unconditionally, if the opponent has been given an opportunity to
inspect it. (empahsis supplied)
Francisco's opinion is of the same tenor, viz:
"Generally speaking, an objection by the party against whom secondary evidence is sought to
be introduced is essential to bring the best evidence rule into application; and frequently, where
secondary evidence has been admitted, the rule of exclusion might have successfully been
invoked if proper and timely objection had been taken. No general rule as to the form or mode
of objecting to the admission of secondary evidence is set forth. Suffice it to say here that the
objection shouId be made in proper season - that is, whenever it appears that there is
better evidence than that which is offered and before the secondary evidence has been
admitted. The objection itself should be sufficiently definite to present a tangible question for
the court's consideration.
[25]

He adds:
"Secondary evidence of the content of the writing will be received in evidence if no objection is
made to its reception.
[26]

n regard to the authentication of private writings, the Rules of Court provides in section 20 of
Rule 132, viz:
"Sec. 20. Proof of private document. Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
On the rule of authentication of private writings, Francisco states that:
"A proper foundation must be laid for the admission of documentary evidence; that is, the
identity and authenticity of the document must be reasonably established as a pre-requisite to
its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and others)
However, a party who does not deny the genuineness of a proffered instrument may not
object that it was not properIy identified before it was admitted in evidence. (Strand v.
Halverson, 220 owa 1276, 264 N.W. 266, 103 A.L.R. 835).
[27]

Petitioner cites the case of State prosecutors v. Muro,
[28]
which frowned on reliance by
courts on newspaper accounts. n that case, Judge Muro was dismissed from the service for
relying on a newspaper account in dismissing eleven (11) cases against Mrs. melda
Romualdez Marcos. There is a significant difference, however, between the uro case and
the cases at bar. n the Muro case, Judge Muro dismissed the cases against Mrs. Marcos on
the basis of a newspaper account without affording the prosecution the basic opportunity to
be heard on the matter by way of a written comment or on oral argument. . .(this is) not only a
blatant denial of elementary due process to the Government but is palpably indicative of bad
faith and partiality. n the instant cases, however, the petitioner had an opportunity to
object to the admissibility of the Angara Diary when he filed his Memorandum dated February
20, 2001, Reply Memorandum dated February 22, 2001, Supplemental Memorandum dated
February 23, 2001, and Second Supplemental memorandum dated February 24, 2001. He was
therefore not denied due process. n the words of Wigmore, supra, petitioner had "been given
an opportunity to inspect theAngara Diary but did not object to its admissibility. t is already
too late in the day to raise his objections in an Omnibus Motion, after the Angara Diary has
been used as evidence and a decision rendered partly on the basis thereof.
III
Temporary InabiIity

Petitioner argues that the Court misinterpreted the meaning of section 11, Article V, of the
Constitution in that congress can only decide the issue of inability when there is a variance of
opinion between a majority of the Cabinet and the President. The situation presents itself when
majority of the Cabinet determines that the President is unable to govern; later, the President
informs Congress that his inability has ceased but is contradicted by a majority of the members
of the Cabinet. t is also urged that the president's judgment that he is unable to govern
temporarily which is thereafter communicated to the Speaker of the House and the President of
the Senate is the political question which this Court cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himseIf made the
submission in G.R. No. 146738 that "Congress has the uItimate authority under the
Constitution to determine whether the President is incapabIe of performing his functions
in the manner provided for in section 11 of ArticIe VII.
[29]
e sustained this
submission and held that by its many acts, Congress has already determined and dismissed
the claim of alleged temporary inability to govern proffered by petitioner. f petitioner now feels
aggrieved by the manner Congress exercised its power, it is incumbent upon him to seek
redress from Congress itself. The power is conceded by the petitioner to be with Congress
and its aIIeged erroneous exercise cannot be corrected by this Court. The recognition of
respondent Arroyo as our de jure president made by Congress is unquestionably a poIiticaI
judgment. t is significant that House Resolution No. 176 cited as the bases of its judgment
such factors as the "peopIe's Ioss of confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern and the "members of the internationaI community had
extended their recognition of Her Excellency, Gloria Macapagal-Arroyo as President of the
Republic of the Philippines and it has a constitutional duty "of fealty to the supreme wiII of the
peopIe x x x. This poIiticaI judgment may be right or wrong but Congress is answerabIe
onIy to the peopIe for its judgment. ts wisdom is fit to be debated before the tribunal of the
people and not before a court of justice. Needles to state, the doctrine of separation of
power constitutes an inseparabIe bar against this court's interposition of its power of judicial
review to review the judgment of Congress rejecting petitioner's claim that he is still the
President, albeit on leave and that respondent Arroyo is merely an acting President.
Petitioner attempts to extricate himself from his submission that Congress has the ultimate
authority to determine his inability to govern, and whose determination is a political question by
now arguing thatwhether one is a de jure or de facto President is a judiciaI
question. Petitioner's change of theory, ill disguised as it is, does not at all impress. The cases
at bar do not present the generaI issue of whether the respondent Arroyo is the de jure or a de
facto President. Specific issues were raised to the Court for resolution and we ruIed on an
issue by issue basis. On the issue of resignation under section 8, Article V of the
Constitution, we held that the issue is legal and ruled that petitioner has resigned from office
before respondent Arroyo took her oath as President. On the issue of inability to govern under
section 11, Article V of the Constitution, we held that the Congress has the ultimate authority to
determine the question as opined by the petitioner himself and that the determination of
Congress is a political judgment which this Court cannot review. Petitioner cannot bIur these
specific ruIings by the generaIization that whether one is a de jure or de facto President
is a judiciaI question.
Petitioner now appears to fauIt Congress for its various acts expressed thru
resoIutions which brushed off his temporary inabiIity to govern and President-on-Ieave
argument. He asserts that these acts of Congress should not be accorded any legal
significance because: (1) they are post facto and (2) a declaration of presidential incapacity
cannot be implied.
We disagree. There is nothing in section 11 of Article V of the Constitution which states
that the declaration by Congress of the President's inability must aIways be a priori or before
the Vice-President assumes the presidency. n the cases at bar, special consideration should
be given to the fact that the events which led to the resignation of the petitioner happened at
express speed and culminated on a Saturday. Congress was then not in session and had
no reasonabIe opportunity to act a priori on petitioner's letter claiming inability to govern. To
be sure, however, the petitioner cannot strictly maintain that the President of the Senate, the
Honorable Aquilino Pimentel, Jr. and the then Speaker of the House of Representatives, the
Honorable Arnulfo P. Fuentebella, recognized respondent Arroyo as the "constitutional
successor to the presidency post facto. Petitioner himself states that his letter alleging his
inability to govern was "received by the Office of the Speaker on January 20, 2001 at 8:30
A.M.and the Office of the Senate at 9 P.M. of the same day.
[30]
Respondent took her oath of
office a few minutes past 12 o'clock in the afternoon of January 20. Before the oath-taking,
Senate President Pimentel, Jr. and Speaker Fuentebella had prepared a Joint Statement which
states:
[31]

"Joint Statement of Support
and Recognition from the
Senate President and the Speaker
Of the House of Representatives
We, the elected leaders of the Senate and the House of Representatives, are called upon to
address the constitutional crisis affecting the authority of the President to effectively govern our
distressed nation. We understand that the Supreme Court at that time is issuing an en banc
resolution recognizing this political reality. While we may differ on the means to effect a change
of leadership, we however, cannot be indifferent and must act resolutely. Thus, in Iine with
our sworn duty to represent our peopIe and in pursuit of our goaIs for peace and
prosperity to aII, we, the Senate President and the Speaker of the House of
Representatives, hereby decIare our support and recognition to the constitutionaI
successor to the Presidency. We similarly call on all sectors to close ranks despite our
political differences. May God bless our nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQULNO PMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the House of
Representatives of respondent Arroyo as the "constitutional successor to the presidency was
foIIowed post factoby various resolutions of the Senate and the House, in effect, confirming
this recognition. Thus, Resolution No. 176 expressed "x x x the support of the House of
Representatives to the assumption into office by Vice-President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goal under the
Constitution.
[32]
Resolution No. 82 of the Senate and Resolution No. 178 of the House of
Representatives both confirmed the nomination of then Senator Teofisto Guingona, Jr., as Vice-
President.
[33]
t also passed Resolution No. 83 declaring the impeachment court functus
officio.
[34]
Both Houses sent bills to respondent Arroyo to be signed by her into law as President
of the Philippines.
[35]
These acts of Congress, a priori and post facto, cannot be dismissed
as mereIy impIied recognitions of respondent Arroyo, as the President of the
RepubIic. Petitioner's insistence that respondent Arroyo is just a de facto President because
said acts of Congress " x x x are mere circumstances of acquiescence calculated to induce
people to submit to respondent's exercise of the powers of the presidency
[36]
is a guesswork far
divorced from reality to deserve further discussion.
Similarly way off the mark is petitioner's point that "while the Constitution has made
Congress the national board of canvassers for presidential and vice-presidential elections, this
Honorable Court nonetheless remains the sole judge in presidential and vice presidential
contests.
[37]
He thus postulates that "such constitutional provision
[38]
is indicative of the desire of
the sovereign people to keep out of the hands of Congress questions as to the legality of a
person's claim to the presidential office.
[39]
Suffice to state that the inference is
iIIogicaI. ndeed, there is no room to resort to inference. The Constitution clearly sets out the
structure on how vacancies and election contest in the office of the President shall be
decided. Thus, section 7 of ArticIe VII covers the instance when (a) the President-elect fails to
qualify, (b) if a President shall not have been chosen and (c) if at the beginning of the term of
the President, the President-elect shall have died or shall have become permanently
disabled. Section 8 of ArticIe VII covers the situation of the death, permanent disability,
removal from office or resignation of the President. Section 11 of ArticIe VII covers the case
where the President transmits to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and duties of
his office. In each case, the Constitution specifies the body that wiII resoIve the issues
that may arise from the contingency. n case of election contest, section 4, Article V
provides that the contests shall be resolved by this Court sitting en banc. n case of resignation
of the President, it is not disputed that this Court has jurisdiction to decide the issue. n case of
inability to govern, section 11 of Article V gives the Congress the power to adjudge the issue
and petitioner himself submitted this thesis which was shared by this Court. n light of these
clear provisions of the Constitution, it is inappropriate, to say the least, for petitioner to make
inferences that simply distort their meanings.
IV

Impeachment and AbsoIute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article X of the Constitution
which provides:
"(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party
convicted should nevertheless be liable and subject to prosecution, trial and punishment
according to law.
Petitioner reiterates the argument that he must be first convicted in the impeachment
proceedings before he could be criminally prosecuted. A plain reading of the provision will not
yield this conclusion. The provision conveys two uncomplicated ideas: first, it tells us that
judgment in impeachment cases has a Iimited reach. . .i.e., it cannot extend further than
removal from office and disqualification to hold any office under the Republic of the Philippines,
and second, it tells us the consequence of the limited reach of a judgment in impeachment
proceedings considering its nature, i.e., that the party convicted shall still be liable and subject
to prosecution, trial and punishment according to law. No amount of manipulation will justify
petitioner's non sequitur submission that the provision requires that his conviction in the
impeachment proceedings is a condition sine qua non to his prosecution, trial and punishment
for the offenses he is now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors' walk out from the impeachment
proceedings "should be considered faiIure to prosecute on the part of the public and private
prosecutors, and the termination of the case by the Senate is equivaIent to acquittaI.
[40]
He
explains "failure to prosecute as the "failure of the prosecution to prove the case, hence
dismissal on such grounds is a dismissal on the merits.
[41]
He then concludes that "dismissal of
a case for failure to prosecute amounts to an acquittaI for purposes of appIying the ruIe
against doubIe jeopardy."
[42]

ithout ruIing on the nature of impeachment proceedings, we reject petitioner's
submission.
The records will show that the prosecutors waIked out in the January 16, 2001 hearing of
the impeachment cases when by a vote of 11-10, the Senator-judges refused to open the
second envelope allegedly containing the P3.3 billion deposit of the petitioner in a secret bank
account under the name " Jose Velarde. The next day, January 17, the public prosecutors
submitted a letter to the Speaker of the House tendering their resignation. They also filed
their Manifestation of ithdrawaI of Appearance with the impeachment tribunal. Senator
Raul Roco immediately moved for the indefinite suspension of the impeachment
proceedings untiI the House of Representatives shaII have resoIved the resignation of the
pubIic prosecutors. The Roco motion was then granted by Chief Justice Davide,
Jr. Before the House could resolve the issue of resignation of its prosecutors or on January
20, 2001, petitioner relinquished the presidency and respondent Arroyo took her oath as
President of the Republic. Thus, on February 7, 2001, the Senate passed ResoIution No.
83 declaring that the impeachment court is functus officio.
Prescinding from these facts, petitioner cannot invoke doubIe jeopardy. Double
jeopardy attaches only: (1) upon a valid complaint; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted
or convicted or the case was dismissed or otherwise terminated without the express consent of
the accused.
[43]
Assuming arguendothat the first four requisites of double jeopardy were
complied with, petitioner failed to satisfy the fifth requisite for he was not acquitted nor was
the impeachment proceeding dismissed without his express consent. Petitioner's claim of
double jeopardy cannot be predicated on prior conviction for he was not convicted by the
impeachment court. At best, his claim of previous acquittal may be scrutinized in light of a
violation of his right to speedy trial, which amounts to a failure to prosecute. As Bernas points
out, a failure to prosecute, which is what happens when the accused is not given a speedy trial,
means failure of the prosecution to prove the case. Hence, dismissal on such grounds is a
dismissal on the merits.
[44]

This Court held in smea v. !ogoy
[45]
, viz:
"f the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not
for the dismissal, but for the trial of the case. After the prosecution's motion for postponement
of the trial is denied and upon order of the court the fiscal does not or cannot produce his
evidence and, consequently fails to prove the defendant's guilt, the court upon defendant's
motion shall dismiss the case, such dismissall amounting to an acquittal of the defendant.
n a more recent case, this Court held:
"t is true that in an unbroken line of cases, we have held that the dismissal of cases on the
ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of
the accused for the same offense. t must be stressed, however, that these dismissals were
predicated on the clear right of the accused to speedy trial. These cases are not applicable to
the petition at bench considering that the right of the private respondents to speedy trial has not
been violated by the State. For this reason, private respondents cannot invoke their right
against double jeopardy.
[46]

Petitioner did not move for the dismissaI of the impeachment case against him. Even
assuming arguendo that there was a move for its dismissal, not every invocation of an
accused's right to speedy trial is meritorious. While the Court accords due importance to an
accused's right to a speedy trial and adheres to a policy of speedy administration of justice, this
right cannot be invoked loosely. Unjustified postponements which prolong the trial for an
unreasonable length of time are what offend the right of the accused to speedy trial.
[47]
The
following provisions of the Revised Rules of Criminal Procedure are apropos:
"Rule 115, Section 1(h). Rights of accused at the trial. -- n all criminal prosecutions, the
accused shall be entitled to the following rights:
(h) To have speedy, impartial and public trial.
"Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once
commenced shall continue from day to day as far as practicable until terminated. t may be
postponed for a reasonable length of time for good cause.
The court shall, after consultation with the prosecutor and defense counsel, set the case for
continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as
to ensure speedy trial. n no case shall the entire trial period exceed one hundred eighty (180)
days from the first day of trial, except as otherwise authorized by the Supreme Court.
Petitioner therefore faiIed to show that the postponement of the impeachment
proceedings was unjustified, much Iess that it was for an unreasonabIe Iength of
time. Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended
until the House of Representatives shall have resolved the issue on the resignation of the public
prosecutors. This was justified and understandable for an impeachment proceeding without a
panel of prosecutors is a mockery of the impeachment process. However, three (3) days from
the suspension or January 20, 2001, petitioner's resignation supervened. With the sudden turn
of events, the impeachment court became functus officio and the proceedings were therefore
terminated. By no stretch of the imagination can the four-day period from the time the
impeachment proceeding was suspended to the day petitioner resigned, constitute an
unreasonable period of delay violative of the right of the accused to speedy trial.
Nor can the cIaim of doubIe jeopardy be grounded on the dismissaI or termination of
the case without the express consent of the accused. We reiterate that the impeachment
proceeding was closed only after the petitioner had resigned from the presidency, thereby
rendering the impeachment court functus officio. By resigning from the presidency, petitioner
more than consented to the termination of the impeachmment case against him, for he brought
about the termination of the impeachment proceedings. We have consistently ruled that when
the dismissal or termination of the case is made at the instance of the accused, there is no
double jeopardy.
[48]

Petitioner stubbornly clings to the contention that he is entitled to absoIute immunity from
suit. His arguments are merely recycled and we need not prolong the longevity of the debate
on the subject. n our Decision, we exhaustively traced the origin of executive immunity in our
jurisdiction and its bends and turns up to the present time. We held that given the intent of the
1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner,
as a non-sitting President, cannot cIaim executive immunity for his aIIeged criminaI acts
committed whiIe a sitting President. Petitioner's rehashed arguments including their thinly
disguised new spins are based on the rejected contention that he is still President, albeit, a
President on leave. His stance that his immunity covers his entire term of office or until June
30, 2004 disregards the reality that he has relinquished the presidency and there is now a
new de jure President.
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity
from suit during his term of office. He buttresses his position with the deliberations of the
Constitutional Commission, viz:
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. agree with Commissioner Nolledo that the Committee
did very well in striking out this second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not agree
to a restoration of at least the first sentence that the President shall be immune from suit during
his tenure, considering that if we do not provide him that kind of an immunity, he might be
spending all his time facing litigations, as the President-in-exile in Hawaii is now facing
litigations almost daily?
Fr. Bernas: The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez: So there is no need to express it here.
Fr. Bernas: There is no need. t was that way before. The only innovation made by the
1973 Constitution was to make that explicit and to add other things.
Mr. Suarez; On the understanding, will not press for any more query, madam President.
thank the Commissioner for the clarification.
[49]

Petitioner, however, faiIs to distinguish between term and tenure. The term means
the time during which the officer may claim to hold the office as of right, and fixes the interval
after which the several incumbents shall succeed one another. The tenure represents the term
during which the incumbent actually holds office. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent.
[50]
From the deIiberations, the intent of
the framers is cIear that the immunity of the president from suit is concurrent onIy with
his tenure and not his term.
ndeed, petitioner's stubborn stance cannot but bolster the belief that the cases at bar were
filed not really for petitioner to reclaim the presidency but just to take advantage of the immunity
attached to the presidency and thus, derail the investigation of the criminal cases pending
against him in the Office of the Ombudsman.
V

PrejudiciaI PubIicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial have
been prejudiced by pre-trial publicity. n our Decision, we held that there is not enough
evidence to sustain petitioner's claim of prejudicial publicity. Unconvinced, petitioner alleges
that the vivid narration of events in our Decision itself proves the pervasiveness of the
prejudicial publicity. He then posits the thesis that "doubtless, the national fixation with the
probable guilt of petitioner fueled by the hate campaign launched by some high circulation
newspaper and by the bully pulpit of priests and bishops left indelible impression on aII sectors
of the citizenry and aII regions, so harsh and so pervasive that the prosecution and the judiciary
can no longer assure petitioner a sporting chance.
[51]
To be sure, petitioner engages
inexageration when he alleges that "aII sectors of the citizenry and aII regions have been
irrevocably influenced by this barrage of prejudicial publicity. This exaggeration coIIides with
petitioner's cIaim that he stiII enjoys the support of the majority of our peopIe, especiaIIy
the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the
transaction speaks for itself) to support his argument. Under the res ipsa loquitur rule in its
broad sense, the fact of the occurrence of an injury, taken with the surrounding circumstances,
may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima
facie case, and present a question of fact for defendant to meet with an explanation.
[52]
t is not a
rule of substantive law but more a procedural rule. ts mere invocation does not exempt the
plaintiff with the requirement of proof to prove negligence. t merely allows the plaintiff to
present along with the proof of the accident, enough of the attending circumstances to invoke
the doctrine, creating an inference or presumption of negligence and to thereby place on the
defendant the burden of going forward with the proof.
[53]

We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually
applied only in tort cases, to the cases at bar. Indeed, there is no court in the whoIe worId
that has appIied theres ipsa loquitur ruIe to resoIve the issue of prejudiciaI pubIicity. We
again stress that the issue before us is whether the alleged pervasive publicity of the cases
against the petitioner has prejudiced the minds of the members of the panel of
investigators. We reiterate the test we laid down in PeopIe v. Teehankee,
[54]
to resolve this
issue, viz:
"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. t is true that the print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the
right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible
reporting enhances an accused's right to a fair trial for, as well pointed out , a responsible press
has always been regarded as the handmaiden of effective judicial administration, especially in
the criminal field x x x. The press does not simply publish information about trials but guards
against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact
that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as hey happen straight to our breakfast tables and right to
our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For
another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the
world. We have not installed the jury system whose members are overly protected from
publicity lest they lost their impartiality. x x x x x x x x x. Our judges are learned in the law and
trained to disregard off-court evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect
their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. n artelino, et al.
v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test
of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. n the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not prove that
the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of
change even by evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.
Petitioner keeps on pounding on the adverse pubIicity against him but faiIs to prove
how the impartiaIity of the paneI of investigators from the Office of the Ombudsman has
been infected by it. As we held before and we hold it again, petitioner has compIeteIy
faiIed to adduce any proof of actuaI prejudice developed by the members of the Panel of
nvestigators. This fact must be established by clear and convincing evidence and cannot be
left to loose surmises and conjectures. n fact, petitioner did not even identify the members of
the Panel of nvestigators. We cannot replace this test of actuaI prejudice with the rule of res
ipsa loquitur as suggested by the petitioner. The latter rule assumes that an injury (i.e.,
prejudicial publicity) has been suffered and then shifts the burden to the panel of investigators to
prove that the impartiality of its members has been affected by said publicity. Such a rule will
overturn our case law that pervasive publicity is not per se prejudicial to the right of an accused
to fair trial. The cases are not wanting where an accused has been acquitted despite pervasive
publicity.
[55]
For this reason, we continue to hold that it is not enough for petitioner to conjure
possibiIity of prejudice but must prove actuaI prejudice on the part of his investigators for
the Court to sustain his plea. t is plain that petitioner has failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooIing off period to
allow passions to subside and hopefully the alleged prejudicial publicity against him would die
down. We regret not to acquiesce to the proposal. There is no assurance that the so called 2-
month cooling off period will achieve its purpose. The investigation of the petitioner is a natural
media event. t is the first time in our history that a President will be investigated by the Office of
the Ombudsman for alleged commission of heinous crimes while a sitting President. His
investigation will even be monitored by the foreign press all over the world in view of its legal
and historic significance. n other words, petitioner cannot avoid the kleiglight of publicity. But
what is important for the petitioner is that his constitutionaI rights are not vioIated in the
process of investigation. For this reason, we have warned the respondent Ombudsman in
our Decision to conduct petitioner's preliminary investigation in a circus-free
atmosphere. Petitioner is represented by brilliant legal minds who can protect his right as an
accused.
VI

Recusation

Finally, petitioner prays that "the members of this Honorable Court who went to EDSA put
on record who they were and consider recusing or inhibiting themselves, particularly those who
had ex-parte contacts with those exerting pressure on this Honorable Court, as mentioned in
our Motion of March 9, 2001, given the need for the cold neutrality of impartial judges.
[56]

e hoId that the prayer Iacks merit. There is no ground to inhibit the twelve (12)
members of the Court who merely accepted the invitation of the respondent Arroyo to attend her
oath taking. Asmere spectators of a historic event, said members of the Court did not
prejudge the legal basis of the claim of respondent Arroyo to the presidency at the time she
took her oath. ndeed, the Court in its en banc resolution on January 22, 2001, the first working
day after respondent Arroyo took her oath as President, held in Administrative Matter No. 01-1-
05 SC, to wit:
"A.M. No. 01-1-05-SC n re: Request for Vice President Gloria Macapagal-Arroyo to Take Her
Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting
on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of
the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the
Court, dated January 20, 2001, which request was treated as an administrative matter, the court
Resolved unanimously to confirm the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice
President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20,
2001.
This resolution is without prejudice to the disposition of any justiciable case that may be filed by
a proper party.
The above resoIution was unanimousIy passed by the 1 members of the Court. t should
be clear from the resolution that the Court did not treat the letter of respondent Arroyo to be
administered the oath by Chief Justice Davide, Jr., as a case but as an administrative matter. If
it were considered as a case, then petitioner has reason to fear that the Court has
predetermined the Iegitimacy of the cIaim of respondent Arroyo to the presidency. To
dispeI the erroneous notion, the Court preciseIy treated the Ietter as an administrative
matter and emphasized that it was without prejudice to the disposition of any justiciabIe
case that may be fiIed by a proper party." n further clarification, the Court on February 20,
2001 issued another resoIution to inform the parties and the public that it "xxx did not issue a
resolution on January 20, 2001 declaring the office of the President vacant and that neither did
the Chief Justice issue a press statement justifying the alleged resolution. Thus, there is no
reason for petitioner to request for the said tweIve (12) justices to recuse themseIves. To
be sure, a motion to inhibit fiIed by a party after Iosing his case is suspect and is
regarded with generaI disfavor.
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the
case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to
the deprivation of the judicial power of the court itself. t affects the very heart of judicial
independence.
[57]
The proposed mass disqualification, if sanctioned and ordered, would leave
the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the
participation of its entire membership of Justices.
[58]

IN VIE HEREOF, petitioner's Motion for Reconsideration in G.R. Nos. 146710-15 and
his Omnibus Motion in G.R. No. 146738 are DENED for lack of merit.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 9148 JuIy 13, 1990
TOMAS N. JOSON III, petitioner,
vs.
NARCISO S. NARIO, LUIS T. SANTOS, in his capacity as Secretary of LocaI
Governments, and SENDON O. DELIZO, in his capacity as Judge of the RegionaI TriaI
Court, Branch 26, at Cabanatuan City, respondents.
Gonzales, atiller, ilog & Associates, Pedro J. Capalungan, Clemente D. Paredes, Pascual L.
Javier and Rolando ala, for petitioner.
Abad & Associates for respondent ario.

NARVASA, J.:
Whether or not the office of Vice-Governor of Nueva Ecija was rendered vacant by the voluntary
resignation of the person duly elected thereto during the 1988 local elections, is the principal
issue involved in this special civil action of certiorari. The position is now contested by said Vice-
Governor, Narciso Nario who withdrew his resignation a few days after tendering it and
the petitioner Tomas Joson , the Sangguniang Panlalawigan member who obtained the
highest number of votes in the same local elections of 1988, and who, upon Nario's resignation,
assumed the position of Vice-Governor.
The controversy originated from the indefinite sick leave that the incumbent Governor of Nueva
Ecija, Eduardo L. Joson, had to take on December 7, 1989, thus creating a temporary vacancy
in his Office. As Vice Governor, Nario took over as Acting Governor pursuant to the Local
Government Code (B.P. Blg. 337).
1
But as fate would have it, Nario himself fell ill shortly
afterwards, and so executed a "waiver" of his "right" to the office of Governor reading as
follows:
2

D
e
c
e
m
b
e
r

1
8
,

1
9
8
9
Effective December 19,1989, I hereby expressIy waive my right to assume
the position of Acting Governor of Nueva Ecija in favor of Senior Board
Member Tomas N. Joson III.
s
/
t
/

N
A
R
C
I
S
O

S
.

N
A
R
I
O

V
i
c
e
-
G
o
v
e
r
n
o
r
Joson forthwith took his oath as Acting Governor, on December 19, 1989.
3

Four (4) days Iater, apparentIy feeIing that his iIIness had worsened, Nario sent a Ietter to
the Secretary of IocaI Governments tendering his resignation as Vice- Governor of Nueva
Ecija.
4
His Ietter reads as foIIows:
Dece
mber
22,
1989
Hon. Luis T. Santos
xxx xxx xxx
(Thru Hon. Tomas N. Joson III,
Acting Governor of Nueva Ecija
City of Cabanatuan)
Sir:
For reasons of poor heaIth, I hereby respectfuIIy tender my voIuntary
resignation as Vice-Governor of Nueva Ecija effective after the cIose of
office hours today, December 22, 1989.
V
e
r
y

t
r
u
I
y

y
o
u
r
s
,
s/t/
NARCI
SO S.
NARIO
Vice-
Gover
nor
The foIIowing day, Acting Governor Joson took his oath of office as Vice-Governor of
Nueva Ecija.

Then on December 26, 1989, he sent an officiaI communication (a 1st

indorsement) to Secretary Santos: (a) forwarding the resignation of Vice-Governor Nario,
and (b) advising of his assumption of the office of Vice-Governor "pursuant to the
provisions of Section 49 (1) of Batas Pambansa BIg. 337."
6

Having in the meantime discovered, after undergoing further medicaI examination, that
his iIIness was not as serious as originaIIy feared, and having thus been convinced of his
physicaI fitness to resume work, Nario wrote to Secretary Santos on January 2, 1990,
withdrawing his "Letters of resignation as Vice-Governor of Nueva Ecija and waiver as
Acting Governor," and requesting that they be considered "as without IegaI force and
effect."
7
Secretary Santos acted promptIy on Nario's Ietter. On January 3, 1990, he sent
Nario two (2) communications. The first,
8
after noting the contents of Nario's Ietter of
January 2, 1990, advised him that -
. . . for aII IegaI intents and purposes, we consider you as the Vice
Governor of the Province of Nueva Ecija, and as such, you shaII discharge
the powers, duties and functions appurtenant thereto and such other as
may be prescribe by Iaw.
The second contained the foIIowing designation and directive:
9

In view of the temporary incapacity of the ProvinciaI Governor of Nueva
Ecija, Hon. Eduardo L. Joson, on account of physicaI cause, pursuant to
the provisions of Section 2 of the LocaI Government Code I (BP BIg. 337),
you, as vice governor, are hereby designated as acting provinciaI governor
of Nueva Ecija and, as such, shaII exercise the powers, duties and
functions of the office during the period prescribed by Iaw.
On the same day, January 3, 1990, Nario took his oath as Acting ProvinciaI Governor
before Secretary Santos, after which the Iatter wrote a third Ietter, this time addressed to
petitioner Joson as "First Sangguniang PanIaIawigan Member."
10
The Ietter reads as
foIIows:
In view of the assumption of office of ProvinciaI Governor of Nueva Ecija
by Vice-Governor Narciso S. Nario, you are hereby directed to cease and
desist from discharging any and aII powers, duties, and functions
appertaining to the office of ProvinciaI Governor.
It further appears that on the same day, January 3, 1990, Secretary Santos aIso sent a
teIegram to the ProvinciaI Commander of Nueva Ecija of the foIIowing tenor:
11

I HAVE TODAY DESIGNATED VICE GOVERNOR NARCISO NARIO AS
ACTING GOVERNOR OF NUEVA ECIJA DUE TO TEMPORARY INCAPACITY
OF GOVERNOR EDUARDO JOSON AND I OULD APPRECIATE YOUR
ASSISTANCE IN EFFECTING HIS ORDERLY AND PEACEFUL ASSUMPTION
OF OFFICE.
THANK YOU.
Joson reacted by fiIing with the RegionaI TriaI Court at Cabanatuan City, on January 4,
1990, a petition for "prohibition and injunction, with prayer for restraining order -
docketed as CiviI Case No. 746-AF.
12
He succeeded in obtaining on the same day a
"status quo order" from the Executive Judge, Hon. Sendon DeIizo.
13
Hearing was set on
January 12, 1990. Oppositions were presented in due course by the SoIicitor GeneraI, in
representation of Secretary Luis T. Santos,
14
and by the Iawyers of Acting Governor
Nario.
1
Thereafter, and after conducting a hearing on January 12, 1990 as
scheduIed'
16
Judge DeIizo rendered judgment on January 1, 1990, dismissing Joson's
petition and Iifting the temporary restraining order issued earIier.
17

In his Decision, His Honor, citing PunsaIan v. Mendoza, 140 SCRA 13, ruIed that "(i)n
our jurisdiction acceptance is necessary for resignation of pubIic office to be operative
and effective, otherwise, the officer is subject to penaI provisions of Art. 238 of the
Revised PenaI Code;" and, invoking RosaIes v. Court of AppeaIs, 16 SCRA 344, further
decIared that "petitioner (Joson) in instituting the present action had deviated (from) the
doctrine of exhaustion of administrative remedies, thereby rendered (rendering) this
action pre-mature."
On January 17, 1990, Joson fiIed with this Court a petition for review
on certiorari basicaIIy praying for judgment -
1) reversing the decision of respondent Judge dated January 1, 1990;
2) decIaring iIIegaI and without force and effect, Nario's withdrawaI of his voIuntary
resignation and sustaining Joson's assumption of the positions of Vice-Governor and
Acting Governor of Nueva Ecija;
3) decIaring nuII and void the designation of Nario as Acting Governor of Nueva Ecija
made by Secretary Santos on January 3, 1990.
The petitioner wouId have this Court adopt his theory that "since the LocaI Government
Code does not provide as to when the voIuntary resignations of Vice-Governors shaII
become effective" - unIike the case of a sanggunian member whose resignation takes
effect and operates as a vacation of his position onIy upon acceptance of the resignation
"by the sanggunian concerned"-Nario's resignation "shouId be construed to be
effective on the date specified in the resignation, without need of acceptance."
18
He
adverts to the omission of the RuIes and ReguIations ImpIementing the LocaI
Government Code to 44 provide the mechanism for the resignation of a Vice-Governor
attributing this "to the fact that the Code cIearIy provides for succession in case of
resignation (of a vice-governor)," i.e., in who obtained "the member of the Sangguniang
PanIaIawigan the Iargest number of votes in the Iast eIections shaII ipso jure succeed to
the office of the Vice-Governor," a cIear indication, in his view, that acceptance of the
Iatter's resignation "is no Ionger necessary." Petitioner further cIaims that Nario's acts,
coupIed with his awareness of the assumption by Joson of the office of Vice-Governor,
cIearIy estabIish "his intention to totaIIy abandon said office," and constitute an
"absoIute reIinquishment" thereof.
19

The petitioner aIso submits that his case faIIs within one of the exceptions to the ruIe on
exhaustion of administrative remedies, i.e., it invoIves "a pureIy IegaI question."
The decided weight of authority is that "apart from IegaI provision, . . . mere presentation
of resignation does not work a vacancy, and a resignation is not compIete untiI accepted
by proper authority;"
20
". . . and untiI acceptance by proper authority the tender or offer
to resign is revocabIe," unIess other-wise provided by statute."
21
This is not to say that a
pubIic officer may not resign. Mechem says that he "'may certainIy resign, I but without
acceptance his resignation is nothing, and he remains in office.' He is, therefore, so far
as the rights of third persons are concerned, not onIy stiII cIothed with authority, but is
subject to the burdens of the office, and he may be compeIIed to perform the duties, and
is IiabIe for their non-performance, as before."
22

The ruIe rests on "the obvious dictates of pubIic poIicy," Mechem states, stressing that
-
23

. . . "As civiI officers are appointed for the purpose of exercising the
functions and carrying on the operations of the government, and
maintaining pubIic order, a poIiticaI organization wouId seem to be
imperfect which shouId aIIow the depositories of its power to throw off
their responsibiIities at their own pIeasure. This certainIy was not the
doctrine of the common Iaw. In EngIand, a person eIected to a municipaI
office was obIiged to accept it and perform its duties, and be subjected
himseIf to a penaIty by refusaI. An office was regarded as a burden which
the appointee was bound, in the interest of the community and of good
government, to bear. And from this it foIIowed of course that, after an office
was conferred and assumed, it couId not be Iaid down without the consent
of the appointing power.
So it is said by Chief Justice Ruffin of North CaroIina, "It is not true that an
office is heId at wiII of either party. It is heId at the wiII of both. . . . The
pubIic has a right to the services of aII citizens, and may demand them in
aII civiI departments as weII as in the miIitary. Hence, there are on our
statute books severaI acts to compeI men to service in offices. Every man
is obIiged, upon a generaI principIe, after entering his office, to discharge
the duties of it whiIe he continues in office, and he can not Iay it down untiI
the pubIic, or those to whom authority is confided, are satisfied that the
office is in a proper state to be Ieft, and the officer discharged.
"In our jurisprudence," this Court has heId, "acceptance is necessary for
resignation of a pubIic officer to be operative and effective, otherwise the
officer is subject to the penaI provisions of ArticIe 238 of the Revised PenaI
Code which states that:
ART. 238. Abandonment of office or position. Any pubIic officer who,
before the acceptance of his resignation shaII abandon his office to the
detriment of the pubIic service shaII suffer the penaIty of arresto mayor.
If such office shaII have been abandoned in order to evade the discharge of
duties of preventing, prosecuting, or punishing any of the crimes faIIing
within TitIe One and Chapter One of TitIe Three of Book Two of this code,
the offender shaII be punished by prision correccionaI in its minimum or
medium periods, and by arresto mayor if the purpose of abandonment is to
evade the duty of preventing, prosecuting or punishing any other crime.
CIearIy, a pubIic officer cannot abandon his office or position before his resignation is
accepted, but the incumbent officiaI wouId not be in a position to determine the
acceptance of his resignation unIess he has been duIy notified therefor. It must be noted
that respondent Court of AppeaIs underscored the undeniabIe fact that whiIe the
President's Ietter of acceptance was dated October 6, 1972, it was compIeteIy processed
onIy on October 20, 1972 and officiaIIy received by Judge Ruiz on October 21, 1972.
Thus, respondent Court's hoIding that even if there were strict interpretation as to when
Judge Ruiz ceased to be a member of the Judiciary aIthough petitioners maintain that the
date of his cessation from office is October 6, 1972, stiII, his acts before the officiaI
notification of acceptance of his resignation are those of a de facto officer, and,
therefore, vaIid, is correct."
24

In another case, this Court affirmed the same doctrine, commented on by Mechem and
others, supra, that "without acceptance . . . (an officer's) resignation is nothing, and he
remains in office; . . . (and that) "as far as the rights of third persons are concerned, not
onIy (is he) stiII cIothed with authority but (he) is subject to the burdens of the office, . . .
may be compeIIed to perform the duties, and is IiabIe for their non-performance . . ." In
PunsaIan v. Mendoza, supra, the Court heId impIicitIy but no Iess cIearIy that the
effectivity of a pubIic officiaI's resignation depends not on such much on its terms, e.g.,
effective at the pIeasure of the President," or at a particuIar time or on the happening of a
particuIar contingency, but as a IegaI proposition, on acceptance thereof by the proper
authority. For, quite obviousIy, such appropriate authority can disregard the terms of the
officiaI's resignation, and as easiIy reject it as accept it; and obviousIy, too,
"(a)bandonment by the incumbent of his office before acceptance of his resignation is
punishabIe under the Revised PenaI Code."
The respondent Judge was thus correct in refusing to issue the writ of prohibition sued
for by petitioner Joson. It was not within the power of respondent Nario to dictate the
time of the effectiveness of his resignation, or otherwise impose conditions thereon. That
was the prerogative of the Secretary of LocaI Governments, as the proper authority to act
thereon. It was weII within the Secretary's power and discretion to accept or reject the
resignation. Nario therefore continued as Vice-Governor despite his tender of resignation
and despite his absence from office for a few days on account of sickness. Never having
Iost the office of Vice-Governor, it was aIso IawfuI and IogicaI for him to assume the
position of Acting Governor, temporariIy vacant due to the infirmity of the incumbent, as
he eventuaIIy did on instructions of the Secretary of LocaI Governments.
The concIusion thus reached makes unnecessary the Court's ruIing on any other point.
HEREFORE, the petition for review on certiorari is DENIED, and the judgment thereby
chaIIenged is AFFIRMED, with costs against the petitioner.
IT IS SO ORDERED.

THRD DVSON
G.R. No. 118883. January 16, 1998]
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE
MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO, petitioner, vs. COURT
OF APPEALS and AUGUSTO T. ANTONIO, respondents.
D E C I S I O N
PANGANIBAN, J.:
Although a resignation is not complete without an acceptance thereof by the proper
authority, an office may still be deemed relinquished through voluntary abandonment which
needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of
the Decision
[1]
of the Court of Appeals
[2]
promulgated on January 31, 1995 in CA-G.R. SP No.
34158, which modified the Decision dated February 18, 1994 of the Regional Trial Court
[3]
of
Virac, Catanduanes, Branch 42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:
"WHEREFORE, the judgment appealed from is hereby MODFED such that paragraphs 1, 2
and 4 thereof are deleted. Paragraph 3 is AFFRMED. No pronouncement as to costs.
[4]

Antecedent Facts
Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay,
San Andres, Catanduanes in March 1989. He was later elected president of the Association of
Barangay Councils (ABC)
[5]
for the Municipality of San Andres, Catanduanes. n that capacity
and pursuant to the Local Government Code of 1983, he was appointed by the President as
member of the Sangguniang ayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of nterior and Local
Government (DLG) declared the election for the president of the Federation of the Association
of Barangay Councils (FABC) of the same province, in which private respondent was a voting
member, void for want of a quorum. Hence, a reorganization of the provincial council became
necessary. Conformably, the DLG secretary designated private respondent as a temporary
member of the Sangguniang Panlalawigan of the Province of Catanduanes, effective June 15,
1990.
n view of his designation, private respondent resigned as a member of the Sangguniang
Bayan. He tendered his resignation
[6]
dated June 14, 1990 to Mayor Lydia T. Romano of San
Andres, Catanduanes, with copies furnished to the provincial governor, the DLG and the
municipal treasurer. Pursuant to Section 50 of the 1983 Local Government Code
[7]
(.P. lg.
337), Nenito F. Aquino, then vice-president of the ABC, was subsequently appointed by the
provincial governor as member of the Sangguniang Bayan
[8]
in place of private
respondent. Aquino assumed office on July 18, 1990 after taking his oath.
[9]

Subsequently, the ruling of DLG Secretary Santos annulling the election of the FABC
president was reversed by the Supreme Court in Taule vs. Santos.
[10]
n the same case, the
appointment of Private Respondent Antonio as sectoral representative to the Sangguniang
Panlalawigan was declared void, because he did not possess the basic qualification that he
should be president of the federation of barangay councils.
[11]
This ruling of the Court became
final and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of
San Andres advising them of his re-assumption of his "original position, duties and
responsibilities as sectoral representative
[12]
therein. n response thereto, the Sanggunian
issued Resolution No. 6, Series of 1992, declaring that Antonio had no legal basis to resume
office as a member of the Sangguniang Bayan.
[13]

On August 13, 1992, private respondent sought from the DLG a definite ruling relative to
his right to resume his office as member of the Sangguniang Bayan.
[14]
Director Jacob F.
Montesa, department legal counsel of the DLG, clarified Antonio's status in this wise:
"Having been elected President of the ABC in accordance with the Department's Memorandum
Circular No. 89-09,
[15]
you became an ex-officio member in the sanggunian. Such position has
not been vacated inasmuch as you did not resign nor abandon said office when you were
designated as temporary representative of the Federation to the Sangguniang Panlalawigan of
Catanduanes on June 7, 1990. The Supreme Court in Triste vs. Leyte State College Board of
Trustees (192 SCRA 327), declared that: 'designation implies temporariness. Thus, to
'designate' a public officer to another position may mean to vest him with additional duties while
he performs the functions of his permanent office. n some cases, a public officer may be
'designated' to a position in an acting capacity as when an undersecretary is designated to
discharge the functions of the Secretary pending the appointment of a permanent Secretary.'
Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations
mplementing the 1991 Local Government Code to continue to act as president of the
association and to serve as ex-officio members of the sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXX of the mplementing Rules and Regulations of Rep. Act No. 7160,
provides that:
'The incumbent presidents of the municipal, city and provincial chapters of the liga shall
continue to serve as ex-officio members of the sanggunian concerned until the expiration of
their term of office, unless sooner removed for cause.'
'(f) x x x Pending election of the presidents of the municipal, city, provincial and metropolitan
chapters of the liga, the incumbent presidents of the association of barangay councils in the
municipality, city, province and Metropolitan Manila, shall continue to act as president of the
corresponding liga chapters under this Rule.'
n view of the foregoing, considering that the annuled designation is only an additional duty to
your primary function, which is the ABC President, we find no legal obstacle if you re-assume
your representation in the sanggunian bayan as ex-officio member.
[16]

Despite this clarification, the local legislative body issued another resolution
[17]
reiterating its
previous stand.
n response to private respondent's request,
[18]
Director Montesa opined that Antonio did
not relinquish or abandon his office; and that since he was the duly elected ABC president, he
could re-assume his position in the Sanggunian.
[19]
A copy of said reply was sent to the
members of the local legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to
re-assume office as sectoral representative.
On December 10, 1992, private respondent filed a petition for certiorari and mandamus with
preliminary mandatory injunction and/or restraining order before the RTC. On February 18,
1994, the trial court rendered its decision holding that Augusto T. Antonio's resignation from
the Sangguniang ayan was ineffective and inoperative, since there was no acceptance thereof
by the proper authorities. The decretal portion of the decision reads:
"WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the petitioner
and against the respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount of P10,000.00 as attorney's
fees and the cost of the suit;
(2) to allow petitioner to assume his position as sectoral representative of
the Sangguniang ayan of San Andres, Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected salaries similar to those
received by the other members of the Sangguniang ayan of San Andres,
Catanduanes as certified to by the Municipal Budget Officer and Municipal
Treasurer of the same municipality from April 8, 1992 up to the date of this
judgment; and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no
effect.
[20]

Petitioners appealed this judgment to the Court of Appeals.
AppeIIate Court's RuIing
Respondent Court of Appeals affirmed the trial court's ruling but deleted the first, second
and fourth paragraphs of its dispositive portion. t held that private respondent's resignation was
not accepted by the proper authority, who is the President of the Philippines. While the old
Local Government Code is silent as to who should accept and act on the resignation of any
member of the Sanggunian, the law vests in the President the power to appoint members of the
local legislative unit. Thus, resignations must be addressed to and accepted by him. t added
that, though the secretary of the DLG is the alter ego of the President and notice to him may be
considered notice to the President, the records are bereft of any evidence showing that the
DLG secretary received and accepted the resignation letter of Antonio.
Moreover, granting that there was complete and effective resignation, private respondent
was still the president of the ABC and, as such, he was qualified to sit in the Sangguniang
Bayan in an ex officio capacity by virtue of Section 494
[21]
of R.A. 7160
[22]
and Memorandum
Circular No. 92-38.
[23]
n view, however, of the May 1994 elections in which a new set of
barangay officials was elected, Antonio's reassumption of office as barangay representative to
the Sangguniang Bayan was no longer legally feasible.
The appellate court added that private respondent could not be considered to have
abandoned his office. His designation as member of the Sangguniang Panlalawigan was
merely temporary and not incompatible with his position as president of the ABC of San Andres,
Catanduanes.
Finally, Respondent Court deleted the award of attorney's fees for being without basis, and
held that Resolution Nos. 6 and 28 of the Sangguniang Bayan of San Andres involved a valid
exercise of the powers of said local body. t thus modified the trial court's judgment by affirming
paragraph 3 and deleting the other items. Unsatisfied, petitioners brought the present
recourse.
[24]

Issues
The petitioner, in its memorandum,
[25]
submits before this Court the following issues:
". Whether or not respondent's resignation as ex-officio member of Petitioner Sangguniang
Bayan ng San Andres, Catanduanes is deemed complete so as to terminate his official relation
thereto;
". Whether or not respondent had totally abandoned his ex-officio membership in Petitioner
Sangguniang Bayan;
". Whether or not respondent is entitled to collect salaries similar to those received by other
members of Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this
case by the Regional Trial Court of Virac, Catanduanes.
[26]

n sum, was there a complete and effective resignation? f not, was there an abandonment
of office?
This Court's RuIing
The petition is meritorious. Although the terms of office of barangay captains, including
private respondent, elected in March 1989 have expired, the Court deemed it necessary to
resolve this case, as the Court of Appeals had ordered the payment of the uncollected salaries
allegedly due prior to the expiration of Respondent Antonio's term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid and effective
despite the absence of an express acceptance by the President of the Philippines. The letter of
resignation was submitted to the secretary of the DLG, an alter ego of the President, the
appointing authority. The acceptance of respondent's resignation may be inferred from the fact
that the DLG secretary himself appointed him a member of the Sangguniang Panlalawigan of
Catanduanes.
[27]

n Ortiz vs. COMELEC,
[28]
we defined resignation as the "act of giving up or the act of an
officer by which he declines his office and renounces the further right to use it. t is an
expression of the incumbent in some form, express or implied, of the intention to surrender,
renounce, and relinquish the office and the acceptance by competent and lawful authority. To
constitute a complete and operative resignation from public office, there must be: (a) an
intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by
the proper authority.
[29]
The last one is required by reason of Article 238 of the Revised Penal
Code.
[30]

The records are bereft of any evidence that private respondent's resignation was accepted
by the proper authority. From the time that he was elected as punong barangay up to the time
he resigned as a member of Sangguniang Bayan, the governing law was B.P. 337 or the Local
Government Code of 1983. While said law was silent as to who specifically should accept the
resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XX of its
implementing rules states that the "[r]esignation of sanggunian members shall be acted upon by
the sanggunian concerned, and a copy of the action taken shall be furnished the official
responsible for appointing a replacement and the Ministry of Local Government. The position
shall be deemed vacated only upon acceptance of the resignation.
t is not disputed that private respondent's resignation letter was addressed only to the
municipal mayor of San Andres, Catanduanes. t is indicated thereon that copies were
furnished the provincial governor, the municipal treasurer and the DLG. Neither the mayor nor
the officers who had been furnished copies of said letter expressly acted on it. On hindsight,
and assuming arguendo that the aforecited Sec. 6 of Rule XX is valid and applicable, the mayor
should have referred or endorsed the latter to the Sangguniang Bayan for proper action. n any
event, there is no evidence that the resignation was accepted by any government functionary or
office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
"Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative body of the
municipality and shall be composed of the municipal mayor, who shall be the presiding officer,
the vice-mayor, who shall be the presiding officer pro tempore, eight members elected at large,
and the members appointed by the President consisting of the president of thekatipunang
bayan and the president of the kabataang barangay municipal federation. x x x. (Emphasis
supplied.)
Under established jurisprudence, resignations, in the absence of statutory provisions as to
whom they should be submitted, should be tendered to the appointing person or body.
[31]
Private
respondent, therefore, should have submitted his letter of resignation to the President or to his
alter ego, the DLG secretary. Although he supposedly furnished the latter a copy of his letter,
there is no showing that it was duly received, much less, that it was acted upon. The third
requisite being absent, there was therefore no valid and complete resignation.
Second Issue: bandonment of Office
While we agree with Respondent Court that the resignation was not valid absent any
acceptance thereof by the proper authority, we nonetheless hold that Private Respondent
Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his
voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an office by
the holder, with the intention of terminating his possession and control thereof.
[32]
ndeed,
abandonment of office is a species of resignation; while resignation in general is a formal
relinquishment, abandonment is a voluntary relinquishment through nonuser.
[33]
Nonuser refers
to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an
easement or an office (Black's Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of
choice.
[34]
ts concomitant effect is that the former holder of an office can no longer legally
repossess it even by forcible reoccupancy.
[35]

Clear intention to abandon should be manifested by the officer concerned. Such intention
may be express or inferred from his own conduct.
[36]
Thus, the failure to perform the duties
pertaining to the office must be with the officer's actual or imputed intention to abandon and
relinquish the office.
[37]
Abandonment of an office is not wholly a matter of intention; it results
from a complete abandonment of duties of such a continuance that the law will infer a
relinquishment.
[38]
Therefore, there are two essential elements of abandonment: first, an
intention to abandon and, second, an overt or "external act by which the intention is carried into
effect.
[39]

Petitioner argues that the following clearly demonstrate private respondent's abandonment
of his post in the Sangguniang Bayan:
"Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of
Catanduanes was worded 'temporary,' but his acts more than clearly established his intention to
totally abandon his office, indicating an absolute relinquishment thereof. t bears to emphasize
that respondent actually tendered his resignation and subsequently accepted an ex-officio
membership in the Sangguniang Panlalawigan of Catanduanes. He performed his duties and
functions of said office for almost two (2) years, and was completely aware of the appointment
and assumption on July 18, 1990 of Nenito F. Aquino, who was then Vice-President of the
Association of Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member of
petitioner Sangguniang Bayan representing the ABC.
x x x x x x x x x
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondent's
former position for twenty (20) months, without him questioning the term of office of the former if
indeed respondent's designation as ex-officio member of the Sangguniang Panlalawigan was
only temporary. Likewise, for almost eight (8) months after knowledge of the decision in Taule
vs. Santos, et. al., Ibid., nullifying his designation as representative to the Sangguniang
Panlalawigan, respondent opted to remain silent, and in fact failed to seasonably act for the
purpose of reassuming his former position. Evidently, respondent had clearly abandoned his
former position by voluntary relinquishment of his office through non-user.
[40]
[Underscoring
supplied.]
We agree with petitioner. ndeed, the following clearly manifest the intention of private
respondent to abandon his position: (1) his failure to perform his function as member of the
Sangguniang Bayan, (2) his failure to collect the corresponding remuneration for the position,
(3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang
Bayan, (4) his prolonged failure to initiate any act to reassume his post in the Sangguniang
Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his intention:
(1) his letter of resignation from the Sangguniang Bayan;
[41]
(2) his assumption of office as
member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties and functions
as member of said Sanggunian, and (4) his receipt of the remuneration for such post.
t must be stressed that when an officer is "designated to another post, he is usually called
upon to discharge duties in addition to his regular responsibilities. ndeed, his additional
responsibilities are prescribed by law to inhere, as it were, to his original position. A Supreme
Court justice, for instance, may be designated member of the House of Representatives
Electoral Tribunal. n some cases, a public officer may be "designated to a position in an acting
capacity, as when an undersecretary is tasked to discharge the functions of a secretary for a
temporary period.
[42]
n all cases, however, the law does not require the public servant to resign
from his original post. Rather, the law allows him to concurrently discharge the functions of both
offices.
Private respondent, however, did not simultaneously discharge the duties and obligations of
both positions. Neither did he, at that time, express an intention to resume his office as member
of the Sangguniang Bayan. His overt acts, silence, inaction and acquiescence, when Aquino
succeeded him to his original position, show that Antonio had abandoned the contested
office. His immediate and natural reaction upon Aquino's appointment should have been to
object or, failing to do that, to file appropriate legal action or proceeding. But he did neither. t is
significant that he expressed his intention to resume office only on March 31, 1992, after Aquino
had been deemed resigned on March 23, 1992, and months after this Court had nullified his
"designation on August 12, 1991. From his passivity, he is deemed to have recognized the
validity of Aquino's appointment and the latter's discharge of his duties as a member of the
Sangguniang Bayan.
n all, private respondent's failure to promptly assert his alleged right implies his loss of
interest in the position. His overt acts plainly show that he really meant his resignation and
understood its effects. As pointed out by the eminent American commentator, Mechem:
[43]

"Public offices are held upon the implied condition that the officer will diligently and faithfully
execute the duties belonging to them, and while a temporary or accidental failure to perform
them in a single instance or during a short period will not operate as an abandonment, yet if the
officer refuses or neglects to exercise the functions of the office for so long a period as to
reasonably warrant the presumption that he does not desire or intend to perform the duties of
the office at all, he will be held to have abandoned it, not only when his refusal to perform was
wilful, but also where, while he intended to vacate the office, it was because he in good faith but
mistakenly supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal right to be a
member of the Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right
thereto is not self-executory, for the law itself requires another positive act -- an appointment by
the President or the secretary of local government per E.O. 342.
[44]
What private respondent
could have done in order to be able to reassume his post after Aquino's resignation was to seek
a reappointment from the President or the secretary of local government. By and large, private
respondent cannot claim an absolute right to the office which, by his own actuations, he is
deemed to have relinquished.
[45]

We reiterate our ruling in Aparri vs. Court of Appeals:
[46]

"A public office is the right, authority, and duty created and conferred by law, by which for a
given period, either fixed by law or enduring at the pleasure of the creating power, an individual
is invested with some portion of the sovereign functions of the government, to be exercised by
him for the benefit of the public x x x. The right to hold a public office under our political system
is therefore not a natural right. t exists, when it exists at all, only because and by virtue of some
law expressly or impliedly creating and conferring it x x x. There is no such thing as a vested
interest or an estate in an office, or even an absolute right to hold office. Excepting
constitutional offices which provide for special immunity as regards salary and tenure, no one
can be said to have any vested right in an office or its salary x x x.
Third Issue: Salary
Having ruled that private respondent had voluntarily abandoned his post at the
Sangguniang Bayan, he cannot be entitled to any back salaries. Basic is the "no work, no
pay
[47]
rule. A public officer is entitled to receive compensation for services actually rendered for
as long as he has the right to the office being claimed.
[48]
When the act or conduct of a public
servant constitutes a relinquishment of his office, he has no right to receive any salary incident
to the office he had abandoned.
[49]

HEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and
SET ASDE. No costs.
SO ORDERED.

SECOND DVSON
G.R. No. 124471. November 28, 1996]
RODOLFO E. AGUINALDO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
D E C I S I O N
MENDOZA, J.:
This is a petition for certiorari to annul the order, dated September 18, 1995, of the
Sandiganbayan, denying petitioner's motion to quash the informations filed against him in two
criminal cases (Nos. 20948 and 20949), as well as the resolution, dated April 12, 1996, ordering
his suspension for ninety (90) days as Provincial Governor of Cagayan.
The background of this case is as follows. Petitioner is the Provincial Governor of
Cagayan. At the time material to this decision he was serving his first term as Governor of that
province.
n 1990, the Commission on Audit (COA) found that claims of petitioner for intelligence
operations in 1988 and 1989 in the amounts of P400,000 and P350,000, respectively, had been
charged to the 20% Development Fund and that some of the claims were covered by
disbursement vouchers with only reimbursement receipts to support them, most of which were
signed by only one person, while other claims had no supporting papers at all. For this reason
the audit team submitted a report (SAO Report No. 90-25), recommending the following
measures to be taken:
Require the submission of the required documents covering claims for intelligence
activities, before making payment. Require claimant to complete the documentation on
payments made with incomplete papers otherwise, refund of the same should be
made. Stop provincial officials from using the 20% Development Fund for purposes
other than for development projects under MLG Circular No. 83-4.
On February 3, 1992, the COA Director, Feliciano B. Clemencio, filed with the Office of the
Ombudsman a complaint, alleging "anomalies consisting of irregular/illegal disbursements of
government funds. Named respondents in the complaint were petitioner and the members of
the Provincial Board of Cagayan, the Assistant Provincial Treasurer and the Accountant.
n a resolution dated May 31, 1994 the Ombudsman found that, in all, petitioner had
distributed the amount of P750,000 to the military, police and civilian informers to fight
insurgency.
[Petitioner] cannot, however submit receipts or documents evidencing disbursements
for intelligence activities which are required under paragraph B-4 of COA Circular No.
77-17D dated April 15, 1977. Under these circumstances, being an accountable public
officer and who could not account for the insurgency funds when audited, there is
prima-facie evidence that he has put such missing funds to personal use and therefore
liable for malversation of public funds under Article 217 of the Revised Penal
Code. Likewise there is also prima-facie evidence to charge respondent Governor
Aguinaldo with violation of Section 3 , paragraph (3) of R.A. 3019.
Two cases of Malversation of Public Funds under Art. 217 of the Revised Penal Code were
accordingly filed against petitioner on August 16, 1994.
n Crim. Case No. 20948, the information states:
That in or about the year 1988 in the Municipality of Tuguegarao, Province of Cagayan,
Philippines, and within the jurisdiction of this Honorable Court, the above named
accused, Rodolfo E. Aguinaldo, then holding the position of Provincial Governor of
Cagayan Province, hence a public officer who, by reason of the duties of his office, is
accountable for public funds or property, taking advantage of his official position, did
then and there wilfully, unlawfully and feloniously take or misappropriate for his
personal use public funds in his custody in the total amount of Four Hundred Thousand
Pesos (P400,000.00), Philippine Currency, which amount he had earlier withdrawn
from the provincial treasury of Cagayan to be used in the province's intelligence
activities, to the damage and prejudice of the provincial government of Cagayan.
n Crim. Case No. 20949, the information alleges:
That in or about the year 1989 in the Municipality of Tuguegarao, Province of Cagayan,
Philippines, and within the jurisdiction of this Honorable Court, the above named
accused, Rodolfo E Aguinaldo, then holding the position of Provincial Governor of
Cagayan province, hence a public officer who, by reason of the duties of his office, is
accountable for public funds or property, taking advantage of his official position, did
then and there wilfully, unlawfully and feloniously take or misappropriate for his
personal use public funds in his custody in the total amount of Three Hundred Fifty
Thousand Pesos (P350,000.00), Philippine Currency, to the damage and prejudice of
the provincial government of Cagayan.
Upon motion of petitioner, the Sandiganbayan ordered the Office of the Ombudsman to
reinvestigate the cases. Petitioner was allowed to submit the affidavits executed by twelve
military officers who acknowledged receipt from petitioner of unspecified amounts which they
claimed had been used for counter-insurgency operations. n addition petitioner presented his
counter-affidavit.
n a letter dated January 19, 1995, Prosecutor Espinosa requested information from the
Special and Technical Audit Division of the COA whether there had been compliance with the
recommendations in the latter's SAO Report No. 90-25 which, as already stated, required the
submission of documents covering claims for intelligence activities and the complete
documentation of payments made, and the provincial officials to stop using the 20%
Development Fund for purposes other than for development projects. He also inquired whether
on the basis of the affidavits executed by the twelve military officers, the disbursements could
be considered fully liquidated. n reply, COA Special and Technical Audit Division, through
Provincial Auditor Teresita Rios, stated:
[E]xcept for the list of recipients and the machine copies of the duly subscribed
affidavits of some of the recipients, records do not show that this office received the
documents required from the Governor. However, the list of recipients and the duly
subscribed affidavits including the representations made in the letter of the Provincial
Treasurer and the Provincial Auditor, may be a convincing proof that the questioned
disbursements were disbursed according to the intended purpose and not for private
consumption. t could also be surmised that even the former Provincial Auditor may
be convinced as to the existence of the recipients of counter-insurgency/intelligence
funds as no notice of disallowance or suspension was issued on the
reimbursements.
[1]

Apparently not satisfied with the explanation, Prosecutor Espinosa recommended to the
Ombudsman that the malversation cases against petitioner be pressed. His recommendation
was approved and so, on April 26, 1995, he asked the Sandiganbayan for the
suspension pendente lite of petitioner.
Petitioner opposed the motion and moved to quash the informations against him,
contending that
First. THE PRELMNARY NVESTGATON CONDUCTED HEREN WAS TANTED
BY SEROUS RREGULARTES THAT EFFECTVELY DENED THE ACCUSED OF
HS RGHT TO DUE PROCESS AND THEREBY RENDERED THE PROCEEDNGS
TAKEN THEREN NULL AND VOD; and
Second. EVEN F THE RREGULARTES THAT NFECT THE PRELMNARY
NVESTGATON ARE OVERLOOKED, NO PROBABLE CAUSE FOR THE CRME
OF MALVERSATON S MADE OUT BY THE EVDENCE ON RECORD AND,
CONSEQUENTLY, THE NFORMATONS FLED HEREN ARE NVALD.
n a supplemental motion to quash the informations filed on May 29, 1995, petitioner
submitted to the court indorsements by officials. n a first indorsement to the Chairman of the
COA, Regional Director Rafael Marquez stated that he agreed with Provincial Auditor Teresita
Rios that the documents submitted by petitioner "may be a convincing proof that the questioned
disbursements were disbursed according to the intended purpose and not for private
consumption. n turn, in a second indorsement addressed to petitioner, COA Chairman Celso
D. Gangan stated that the documents submitted by petitioner "are substantial evidence to
support disbursements of the intelligence and confidential funds in question as required by
COA Circular No. 92-385, dated October 1, 1992.
The Sandiganbayan therefore gave the prosecution fifteen (15) days within which "to firm
up its position on the COA statements, "it appearing that the position taken by the various
officers of the Commission on Audit seemed to be tentative in the sense that there is no
categorical claim that these sworn statements indeed confirm the disbursement of the
aggregate of P750,000. However, on July 5, 1995, the prosecution reported that it had made
inquiries from the legal office of the COA but the COA did not reply. For his part, petitioner
asked the COA Chairman for a definitive statement of his liability, but his request was referred
to Regional Director Marquez who merely reiterated his previous statement that the "affidavits
[submitted by petitioner] could be considered as sufficient/adequate documents to liquidate the
accountability of Governor Aguinaldo.
Deeming the COA statements to be lacking in definiteness, the Sandiganbayan, on
September 18, 1995, denied petitioner's motion to quash the informations and set his
arraignment, during which petitioner pleaded "not guilty. The Sandiganbayan said:
Notwithstanding the repeated efforts of the Court as well as of the prosecution to
categorically identify the position of the COA on the matter, what consistently appears
in the various communications is that the COA is of the view that the affidavits in lieu of
the actual liquidation of expenses might serve as adequate liquidation. This position
has been the same view which the prosecution has earlier seen and has rejected.
Undoubtedly, the COA could have been more responsive to the request both of the
Court and of the accused itself in stating its position on the matter more
categorically. However, the fact is that it did not do so, and even if it had done so, the
same does not appear to have altered the fact that the prosecution at this time is of the
view that the adequate cause exists to proceed with the prosecution of the accused
Governor Rodolfo E. Aguinaldo. t is for this reason that the nstant Urgent Motion to
Defer Arraignment wherein the various endorsements of COA officials are appended is
denied as is the Motion to Quash and other pleadings in connection herewith.
The Sandiganbayan withheld action on the prosecution's motion to suspend petitioner pending
the pretrial.
Still in an effort to convince the Sandiganbayan that there was no case against him,
petitioner submitted on January 29, 1996 a Certificate of Settlement and Balances dated
January 24, 1996, issued by Provincial Auditor Teresita Rios, allowing petitioner's claim in audit
and relying for this purpose on the credit advice of Regional Director Marquez that the
documents submitted by petitioner were "sufficient enough to liquidate these
expenses/disbursements. When asked by the prosecutor whether Marquez's credit advice was
final, COA Chairman Celso D. Gangan stated that it was "normally not subject to the review of
[COA], the matter being within [Director Marquez's] audit competence.
[2]

The Sandiganbayan was unconvinced. On March 4, 1996, it terminated the pretrial and, on
April 12, 1996, ordered the suspension of petitioner as Provincial Governor for ninety (90)
days. ts resolution reads:
t is well to note that prosecution of cases is left in the hands of the prosecutor. While
the COA can and may assist in collating evidence to substantiate a charge of
malversation, it does not preclude the Ombudsman from conducting its own
investigation, and filing the appropriate charge if, by its own determination, the
evidence warrants the same.
The COA is merely the source of the facts in these cases. Any determination made by
the COA outside of the narration of facts duly supported by evidence will not by itself
determine whether or not adequate cause exists to prosecute a case. To demonstrate
this point, the Supreme Court has ruled that ". a public officer may be held guilty of
malversation based on a 'preliminary' audit report . (De Guzman v. People, 119
SCRA 337, 348 (1982) and that ".[t]he absence of a post-audit is not . a fatal
omission nor is it a ". preliminary requirement to the filing of an information for
malversation as long as the prima facie guilt of the suspect has already been
established. (Corpuz v. People, 194 SCRA 73, 79 (1990))
Nor is COA's final determination required for a malversation case to prosper, much
less will it decide one way or the other the propriety of the suspension of an accused in
a malversation case filed, as sought herein.
Hence this petition for certiorari. Petitioner alleges that:
1. The Sandiganbayan gravely abused its discretion by completely disregarding the
COA findings and post-audit clearances, including the COA Chairman's confirmation,
which the respondent court itself, together with the prosecution, sought and solicited
during the course of the proceedings;
2. n the higher interest of justice, the consideration of the post-audit findings of the
COA can still be the subject of the motion to dismiss even after arraignment of the
petitioner;
3. And then, the presumptive validity of informations has been conclusively
overcome by the subsequent post audit of accountability of the accused petitioner by
the COA which had since issued a certificate of settlement and balances by which the
accused's subject claims have been allowed in audit; and such audit was confirmed by
the COA Chairman.
On the other hand, the prosecution argues that the affidavits of military officers are
inadequate for the purpose of liquidating disbursements in view of COA Circular No. 92-385
which provides that "any disbursement from the confidential and/or intelligence fund shall be
accounted for solely on the certification of the head of the agency or by the officer-in-charge of
the intelligence, confidential or national security mission and MLG Circular No. 83-4, dated
February 7, 1983, which provides that the 20% Development Fund should be utilized exclusively
for development projects and excludes expenditures for counter-insurgency operations.
After due consideration of the petition, the Court finds it to be without merit.
Petitioner alleges irregularity in the conduct of preliminary investigation and lack of probable
cause. n our opinion, the allegation as to irregularity in the preliminary investigation was
properly rejected by the respondent court. As already noted, after the cases had been filed, the
Sandiganbayan, upon petitioner's request, ordered the Office of the Ombudsman to conduct a
reinvestigation. Petitioner was allowed to submit affidavits and other documents in support of
his defense and an opportunity to argue his case. The prosecutor remained fundamentally
unconvinced, however, by the additional evidence presented by petitioner.
ndeed, petitioner failed to submit certain documents required by COA rules to support
claims for disbursements. These are COA Circular No. 92-385 which provides that:
Any disbursement from the confidential and/or intelligence fund shall be accounted for
solely on the certification of the head of the agency or by the officer-in-charge of the
intelligence, confidential or national security mission.
and COA Circular No. 88-293 which provides:
For national defense and related agencies engaged in highly confidential operations or
missions the details of which cannot be divulged without posing a threat to national
security, a certification by the head of agency bearing on the nature of such highly
confidential operations may instead be submitted using Form # 2 (see attached
sample). However, the agency concerned shall maintain a complete file of all
supporting documents for such transactions to ensure the undertaking of a more
extensive audit and examination by this Commission at anytime it deems desirable or
when the operations are completed and declassified. Such file shall include, among
others, the following data: name of asset or informer; nature and purpose or type of
information; date and amount given; signature if payee and such other relevant
information.
Petitioner filed a counter-affidavit in which he stated:
hereby certify, in my capacity as Governor of Cagayan, that the funds
involved therein were duly appropriated by the Sangguniang Panlalawigan of Cagayan
and approved by the Department of nterior and Local Government specifically for
intelligence and counter-insurgency purposes; that all the subject disbursements were
made by me to bona fide officers/personnel of the Armed Forces, para-military units
and civilian components then involved in anti-insurgency operations in Cagayan for
intelligence and counter-insurgency activities and operations; that said funds were to
the best of my knowledge actually spent for the purposes for which they were
appropriated; that the expenses paid for were necessary, lawful and incurred under the
supervision of the officers/men who received them; and, that the amounts spent were
reasonable.
This counter-affidavit falls short of the requirements of COA Circular No. 88-293 which, while
allowing the use of "mere certification to support liquidation vouchers (Par. V(G)), nonetheless
requires the prescribed form to state that "the details and supporting documents are in our
custody and kept in our confidential file and may be audited if the circumstances so demand.
Petitioner alleges in his counter-affidavit that he had receipts from the recipients of the
funds but, he said, the receipts "may have been destroyed or lost beyond reconstitution
sometime in 1990 when he was suspended and subsequently removed from office. On the
other hand the affidavits of military officers do not disclose the name of informer, the nature and
purpose of information, the date and amount given to the informer, the signature of the payee
and other relevant information as required also by the same COA Circular No. 88-293. Save for
the personal circumstances of the affiants, the affidavits, which were uniformly worded, simply
state:
3. That [in] the course of the operations of the counter-insurgency program,
received certain amount in many occasions from the Provincial Government of
Cagayan through Governor Rodolfo Aguinaldo in pursuance of the same counter-
insurgency program;
4. That issued the corresponding receipt for all the amounts received from
Governor Aguinaldo;
5. That am willing to testify as to the truth and veracity of my statement if called
upon by the proper authorities.
Thus, the amounts allegedly received by the affiants are unspecified; the date the amounts
received by the affiants are not given; the affiants do not state how the amounts were spent by
them but only that they were spent "in pursuance and "in support of the counter-insurgency
operations. Moreover, while the affiants attested that they signed receipts for the amounts they
received from petitioner, not a single receipt was presented by petitioner. t is noteworthy that
while petitioner claims that he had also required receipts from civilian informants, runners,
couriers and families of victims of counter-insurgency operations,
[3]
no receipt nor any form of
acknowledgment by the said recipients was presented by petitioner.
While it is true that petitioner was later given a clearance by the Provincial Auditor, the
clearance is notable for its equivocation. Thus, the Provincial Auditor, after noting petitioner's
failure to submit the needed documents, opined that nevertheless the affidavits presented "may
be a convincing proof that the questioned disbursements were disbursed according to the
intended purpose and not for private consumption. Because the prosecutor pressed for
petitioner's prosecution, petitioner presented the certification of the Regional Director but, like
the certification of the Provincial Auditor, the certification also lacked firmness. t stated: "The
list of recipients, and the duly subscribed affidavits including the representations made in the
letter of the Provincial Treasurer and the Provincial Auditor may be a convincing proof that the
questioned disbursements were disbursed according to the intended purpose and not for private
consumption. t could also be surmised that even the former Provincial Auditor maybe
convinced as to the insurgency/intelligence funds as no notice of disallowance or suspension
was issued on the reimbursements.
[4]

The indecisive nature of the Regional Director's certification did not escape the notice of the
Sandiganbayan. t required the prosecution to secure a more definite and categorical ruling
from the COA. The effort failed to produce anything more reassuring. nstead of concurring in
the opinion of the Regional Director, the Chairman of the COA tossed the matter to the latter on
the ground that "final authority to conduct post audit of confidential and intelligence expenses
had been delegated to Regional Directors like Director Rafael Marquez and the latter's
decision is normally not subject to review of [the central office].
Given the indecisive, uncertain and, at best, tentative opinion of COA officials, we think the
Sandiganbayan correctly decided to proceed with the trial of petitioner, leaving the ultimate
resolution of the questions (whether the affidavits submitted by petitioner constitute sufficient
evidence of disbursement of public funds for the purpose claimed by petitioner and whether
charging certain expenditures to the socalled 20% Development Fund is authorized under the
law) to be made after trial. For its part, the Office of the Ombudsman, having found the COA's
original finding of failure to comply with accounting rules unaffected by later equivocal and
hedging clearance of COA's officials, found no reason to reconsider its decision to prosecute.
n Ramos v. Aquino,
[5]
we ruled that the fact that petitioners' accounts and vouchers had
been passed in audit is not a ground for enjoining the provincial fiscal from conducting a
preliminary investigation for the purpose of determining the criminal liability of petitioners for
malversation of public funds through falsification of public documents.
The Auditor General, as noted is vested with the power to examine, audit and settle all
accounts pertaining to the revenues and receipts from whatever source, and to audit, in
accordance with law and administrative regulations, all expenditures of funds or
property pertaining to or held in trust by the government as well as the provinces or
municipalities thereof. That is one thing. The ascertainment of whether a crime [is]
committed and by whom is definitely another.
[6]

COA's approval of petitioner's disbursements only relates to the administrative aspect of
the matter
[7]
of his accountability but it does not foreclose the Ombudsman's authority to
investigate and determine whether there is a crime to be prosecuted for which petitioner is
answerable.
[8]
Therefore, as correctly stated by the Sandiganbayan in its order of April 12, 1996,
while the COA may assist in gathering evidence to substantiate a charge of malversation, any
determination made by it will not be conclusive as to whether adequate cause exists to
prosecute a case. This is so because the Ombudsman is given the power to investigate on its
own an illegal act or omission of a public official.
[9]

ndeed, while the COA may regard petitioner to have substantially complied with its
accounting rules, this fact is not sufficient to dismiss the criminal cases. Beyond compliance
with COA rules and regulations, the question is whether there was a misappropriation of public
funds by petitioner. This is a question of fact to be established by evidence. All that petitioner's
failure to submit the documents required in the COA circulars in questions means is that there is
a presumption of malversation sufficient to justify the filing of a case in court. As Art. 217 of the
Revised Penal Code provides:
The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal use.
Petitioner may still prove his innocence. Until he does this, however, the presumption that
public funds were put to personal use stands.
What we said in Paredes v. Sandiganbayan
[10]
is apropos to this case:
[T]his Court is loath to interfere with the discretion of the Ombudsman unless such
discretion is clearly shown to have been abused. As explained in Young v. Office of
the Ombudsman:
The rule is based not only upon respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the courts will be grievously
hampered by innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with regard to
complaints filed before it , in much the same way that the courts would be
extremely swamped if they could be compelled to review the exercise of
discretion on the part of the fiscals or prosecuting attorneys each time they
decide to file an information in court or dismiss a complaint by a private
complainant.
t is insisted, however, that because COA has the constitutional authority to examine, audit
and settle accounts pertaining to the expenditures of the funds in question, its finding is
conclusive and mandatory and not reviewable except on certiorari and only by this
Court. Petitioner cites P.D. No. 1445 (Government Auditing Code) which provides:
Sec. 52. OPENNG AND REVSON OF SETTLED ACCOUNTS.- (1) At any time
before the expiration of three years after the settlement of any account by an auditor,
the Commission maymotu proprio review and revise the account or settlement and
certify a new balance. For that purpose, it may require any account, vouchers, or other
papers connected with the matter to be forwarded to it.
(2) When any settled account appears to be tainted with fraud, collusion, or error of
calculation, or when new and material evidence is discovered, the Commission may,
within three years after the original settlement, open the account, and after a
reasonable time for reply or appearance of the party concerned, may certify thereon a
new balance. An auditor may exercise the same power with respect to settled account
pertaining to the agencies under his audit jurisdiction.
(3) Accounts once finally settled shall in no case be opened or reviewed except as
herein provided.
Petitioner asserts that because of this provision any account already settled by the COA may
only be reopened within three years by the COA itself and not by the Sandiganbayan.
This same argument was made in Ramos v. Aquino. n rejecting the contention, this Court,
through Justice, later Chief Justice, Fernando, stated:
There is likewise an invocation by appellants of alleged statutory support for their
untenable view. t is likewise in vain. All that appellants have to go on is the
concluding paragraph of Section 657 of the Revised Administrative Code: "Accounts
once finally settled shall in no case be opened or reviewed except as herein
provided. The paragraph immediately preceeding should have disabused the minds
of appellants of any cause for optimism. All that it provides is that in case any settled
account "appears to be infected with fraud, collusion or error of calculation or when
new and material evidence is discovered, the Auditor General may, within three years
after original settlement, open such account, and after a reasonable time for his reply
or appearance, may certify thereon a new balance. The official given the opportunity
for a reply or appearance is the provincial auditor, for under the first paragraph of this
particular section, the Auditor General at any time before the expiration of three years
after the making of any settlement by a provincial auditor, may, of his own motion,
review and revise the same and certify a new balance. Nowhere does it appear that
such a statutory grant of authority of the Auditor General to open revised settled
accounts carries with it the power to determine who may be prosecuted in the event
that in the preparation thereof a crime has been committed. The conclusive effect of
the finality of his decision on the executive branch of the government thus relates
solely to the administrative aspect of the matter.
[11]

Finally, it is contended that while preventive suspension is mandatory in cases involving
fraud upon government or public funds or property,
[12]
it is not automatic because a pre-
suspension hearing on the validity of the information must first be conducted. Petitioner quotes
from People v. Albano
[13]
that "[the] pre-suspension hearing is conducted to determine basically
the validity of the information, from which 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 of the
latter and dismiss the case, or correct any part of the proceeding which impairs its validity.
This was done in the present case. To the prosecution's "Motion to Suspend
Accused Pendente Lite, petitioner filed a "Consolidated Motion to Quash/Dismiss and
Opposition to the Motion to Suspend Accused Pendente Lite. Thereafter, petitioner presented
several certifications from the COA purportedly clearing petitioner of any accountability. On the
basis of pleadings and documents thus submitted by the parties, the Sandiganbayan denied
petitioner's motion to quash and granted the prosecution's motion to suspend
petitionerpendente lite. Hence, as we recently held:
[U]pon a proper determination of the validity of the information, it becomes mandatory
for the court to immediately issue the suspension order. The rule on the matter is
specific and categorical. t leaves no room for interpretation. t is not within the court's
discretion to hold in abeyance the suspension of the accused officer on the pretext that
the order denying the motion to quash is pending review before the appellate
courts. ts discretion lies only during the pre-suspension hearing where it is required to
ascertain whether or not (1) the accused had been afforded due preliminary
investigation prior to the filing of the information against him, (2) the acts for which he
was charged constitute a violation of the provisions of Republic Act No. 3019 or of the
provisions of Title 7, Book of the Revised Penal Code, or (3) the informations against
him can be quashed, under any of the grounds provided in Section 2, Rule 117 of the
Rules of Court.
[14]

All told, we find no basis for holding that the Sandiganbayan committed grave abuse of its
discretion in denying the motion to quash and ordering the preventive suspension of petitioner.
HEREFORE, the petition is DSMSSED for lack of merit.
SO ORDERED.

SECOND DVSON
G.R. No. 1312. 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 ProvinciaI 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 ProvinciaI Board Members of Nueva
Ecija, respondents.
D E C I S I O N
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. nterior 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:
"n 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: SLG 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.
FDEL 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 nterior and Local Governments (SLG) 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. n 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]

mmediately 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 nterior and Local Government (DLG),
acting through Director Almario de los Santos, Officer-n-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]

n 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 DLG 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 DLG 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 DLG 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 DLG, 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
t 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 DLG 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 DLG 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. n 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 DLG continued. On August 20, 1997,
Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss" and
"Urgent Ex-Parte Motion for Reconsideration." n 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 DLG 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]

n 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
nvestigation." 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 DLG reiterating his right to a formal
investigation.
n the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's
petition.
[27]

Hence this recourse.
The proceedings before the DLG continued however. n an order dated November 11,
1997, the DLG denied petitioner's "Motion to Conduct Formal nvestigation" 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 ncorporated Urgent Motion for the ssuance of a Temporary Restraining Order
and/or a Writ of Preliminary njunction." Petitioner alleged that subsequent to the institution of
this petition, the Secretary of the nterior 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 DLG 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 DLG 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 nterior 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.
n his petition, petitioner alleges that:
" THE COURT OF APPEALS GRAVELY ERRED N HOLDNG THAT RULES OF
PROCEDURE AND EVDENCE SHOULD NOT BE STRCTLY APPLED N THE
ADMNSTRATVE DSCPLNARY AND CLEARLY PUNTVE PROCEEDNGS N
THE CASE AGANST PETTONER GOVERNOR EDNO JOSON;
THE COURT OF APPEALS GRAVELY ERRED N APPLYNG THE ALTER-
EGO PRNCPLE BECAUSE, CONTRARY TO LAW, T WAS THE SECRETARY OF
THE DLG WHO WAS EXERCSNG THE POWERS OF THE PRESDENT WHCH
ARE CLEARLY VESTED BY LAW ONLY UPON HM OR THE EXECUTVE
SECRETARY.
THE COURT OF APPEALS ERRED N RULNG THAT THE PETTONER
WAS PROPERLY DECLARED N DEFAULT WHEN HE FLED A MOTON TO
DSMSS NSTEAD OF AN ANSWER, AS DRECTED BY THE DLG, BECAUSE A
MOTON TO DSMSS BASED ON JURSDCTONAL GROUNDS S NOT A
PROHBTVE [sic] PLEADNG N ADMNSTRATVE DSCPLNARY CASES.
V THE COURT OF APPEALS ERRED N RULNG THAT THE MPOSTON OF
PREVENTVE SUSPENSON AGANST THE PETTONER WAS PROPER BECAUSE
THERE WAS NO JONDER OF SSUES YET UPON TS MPOSTON AND THERE
WAS NO EVDENCE OF GULT AGANST PETTONER."
[33]

n his "Motion for Leave to File Herein ncorporated Urgent Motion for the ssuance of a
Temporary Restraining Order and/or a Writ of Preliminary njunction," petitioner also claims that:
" THE RESOLUTON OF JANUARY 8, 1998 AND THE MEMORANDA SSUED
PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F," AND "G" HEREOF) WERE
SSUED WTH UNDUE HASTE, N VOLATON OF THE PERTNENT PROVSONS
OF THE 1991 LOCAL GOVERNMENT CODE AND ADMNSTRATVE ORDER NO.
23, AND N COMPLETE DSREGARD OF PETTONER'S CONSTTUTONAL RGHT
TO DUE PROCESS.
THE MPLEMENTATON OF THE NVALD RESOLUTON OF JANUARY 8, 1998
(ANNEX "C" HEREOF) BY THE PUBLC RESPONDENTS ENTTLES PETTONER
TO THE MMEDATE SSUANCE OF THE TEMPORARY RESTRANNG
ORDER/WRT OF PRELMNARY NJUNCTON HEREN 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 mplementing the Local
Government Code of 1991, and Administrative Order No. 23 entitled "Prescribing the Rules and
Procedures on the nvestigation of Administrative Disciplinary Cases Against Elective Local
Officials of Provinces, Highly Urbanized Cities, ndependent Component Cities, and Cities and
Municipalities in Metropolitan Manila."
[35]
n 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 , Book 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.
n 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. n 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
n his second assigned error, petitioner questions the jurisdiction and authority of the DLG
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 DLG Secretary.
Jurisdiction over administrative disciplinary actions against elective local officials is lodged
in two authorities: the Disciplining Authority and the nvestigating 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 nterior and Local Government
is hereby designated as the nvestigating Authority. He may constitute an nvestigating
Committee in the Department of the nterior and Local Government for the purpose.
The Disciplining Authority may, however, in the interest of the service, constitute a
Special nvestigating Committee in lieu of the Secretary of the nterior 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 nterior and
Local Government is the nvestigating Authority, who may act by himself or constitute an
nvestigating Committee. The Secretary of the DLG, however, is not the exclusive nvestigating
Authority. n lieu of the DLG Secretary, the Disciplining Authority may designate a Special
nvestigating 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]
f 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:
"ndependently 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. t is an active power. t 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. f 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 DLG or a Special nvestigating 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 DLG 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 nvestigating 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. otice 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 nvestigating 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 nvestigating 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
nvestigating Authority for investigation.
n the case at bar, petitioner claims that the DLG 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 DLG 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 nvestigating 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
n his third assigned error, petitioner also claims that the DLG 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 DLG Secretary should have considered it
and given him time to file his answer.
t 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. ndeed, 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
n view of petitioner's inexcusable failure to file answer, the DLG 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."
n 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
DLG 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 nterior and Local Government and
find merit in the aforesaid recommendation.
WHEREFORE, and as recommended by the Department of the nterior and Local
Government, respondent EDUARDO N. JOSON, Governor of Nueva Ecija, is hereby
placed under PREVENTVE SUSPENSON FOR A PEROD OF SXTY (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 nvestigation"
three months before the issuance of the order of suspension and this motion was denied by the
DLG 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." n 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. n 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.
AC, 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 nvestigation, for lack of merit, is
DENED.
SO ORDERED."
[66]

The denial of petitioner's Motion to Conduct Formal nvestigation 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 nvestigating Authority shall determine whether there is a prima facie case to
warrant the institution of formal administrative proceedings.
SEC. 4. Dismissal motu proprio. f the nvestigating 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 proprio dismissal of the case,
together with the recommended decision, resolution, and order.
SEC. 5. Preliminary conference. f the nvestigating 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) f 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 nvestigating 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 nvestigating 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. n 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
nvestigation. 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, the nvestigating
Authority shall summon the parties to consider whether they desire a formal investigation. This
provision does not give the nvestigating 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 orsubpoena 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 mplementing
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 mplementing 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 nvestigating 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 nvestigating 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 DLG
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 againstappointive officials. n 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.
n the Local Government Code, the entire Title of Book of the Code is devoted
to eIective officials. t 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 of Book 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]

t 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 mplementing 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]
f 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. mplicit 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 VIE HEREOF, 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.
SECOND DVSON
G.R. No. 139043. September 10, 1999]
MAYOR ALVIN B. GARCIA, petitioner, vs. HON. ARTURO C. MOJICA, in his capacity as
Deputy Ombudsman for the Visayas, VIRGINIA PALANCA-SANTIAGO, in his
capacity as Director, Office of the Ombudsman (Visayas), ALAN FRANCISCO S.
GARCIANO, in his capacity as Graft Investigation Officer I, Office of the
Ombudsman (Visayas), and JESUS RODRIGO T. TAGAAN, respondents.
D E C I S I O N
QUISUMBING, J.:
The present controversy involves the preventive suspension order issued on June 25,
1999, by the Office of the Ombudsman (Visayas) in OMB-VS-ADM-99-0452, against petitioner
Cebu City Mayor Alvin B. Garcia and eight other city officials. Under the said order, petitioner
was placed under preventive suspension without pay for the maximum period of six months and
told to cease and desist from holding office immediately.
The factual antecedents are as follows:
On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E.
Zuellig for the supply of asphalt to the city. The contract covers the period 1998-2001, which
period was to commence on September 1998 when the first delivery should have been made by
F.E. Zuellig.
Sometime in March 1999, news reports came out regarding the alleged anomalous
purchase of asphalt by Cebu City, through the contract signed by petitioner. This prompted the
Office of the Ombudsman (Visayas) to conduct an inquiry into the matter.
[1]

Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the
Ombudsman, was assigned to conduct the inquiry, docketed as NQ-VS-99-0132. After his
investigation, he recommended that the said inquiry be upgraded
to criminal and administrative cases against petitioner and the other city officials
involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this
recommendation.
n a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft
investigating officer to whom the case was raffled for investigation, recommended the
preventive suspension of petitioner and the others. Two days later, or on June 24, 1999, the
affidavit-complaint against petitioner was filed. The following day, on June 25, 1999, the Office
of the Ombudsman issued the questioned preventive suspension order. On June 29, 1999,
petitioner filed a motion for reconsideration of said order, which motion was denied in an order
dated July 5, 1999.
Petitioner is now before this Court assailing the validity of the said order. He pleads for
immediate relief through the present petition for certiorari and prohibition with a prayer for
temporary restraining order and/or writ of preliminary injunction. Petitioner contends that:
I
THE RESPONDENTS ACTED WTH GRAVE ABUSE OF DSCRETON, AMOUNTNG
TO LACK OR EXCESS OF JURSDCTON N ASSUMNG JURSDCTON OVER
OMB-VS-ADM-99-0452 AND SSUNG THE PREVENTVE SUSPENSON ORDER,
THE OFFCE OF THE OMBUDSMAN BENG WTHOUT JURSDCTON OVER THE
ADMNSTRATVE CASE, CONSDERNG THAT THE ALLEGED ACT
CONSTTUTNG THE CHARGE AGANST PETTONER HEREN WAS COMMTTED
DURNG HS PREVOUS TERM, AND PETTONER HAVNG BEEN REELECTED TO
THE SAME POSTON.
II
ASSUMNG, ARGUEDO, THAT THE OFFCE OF THE OMBUDSMAN HAS
JURSDCTON OVER OMB-VS-ADM-99-0452, THE PREVENTVE SUSPENSON
FOR SX MONTHS WAS WTH GRAVE ABUSE OF DSCRETON AMOUNTNG TO
LACK OR EXCESS OF JURSDCTON, AND N GROSS VOLATON OF THE
PROVSONS OF SECTON 63 OF THE LOCAL GOVERNMENT CODE WHCH
MANDATES THAT THE PREVENTVE SUSPENSON OF LOCAL ELECTVE
OFFCALS BE ORDERED ONLY AFTER THE SSUES HAVE BEEN JONED, AND
ONLY FOR A PEROD NOT N EXCESS OF SXTY (60) DAYS.
III
ASSUMNG, ARGUEDO, THAT THE OFFCE OF THE OMBUDSMAN HAS
JURSDCTON OVER OMB-VS-ADM-99-0452, THE PREVENTVE SUSPENSON
WAS SSUED WTH GRAVE ABUSE OF DSCRETON AMOUNTNG TO LACK OR
EXCESS OF JURSDCTON, AND N GROSS VOLATON OF SECTON 26(2) OF
THE OMBUDSMAN LAW.
IV
ASSUMNG, ARGUEDO, THAT THE OFFCE OF THE OMBUDSMAN HAS
JURSDCTON, THE RESPONDENTS COMMTTED GRAVE ABUSE OF
DSCRETON, AMOUNTNG TO LACK OR EXCESS OF JURSDCTON N
CONCLUDNG THAT THE EVDENCE AGANST PETTONER WAS "STRONG, THE
LTTLE EVDENCE ON RECORD CONSSTNG SOLELY OF A HEARSAY
AFFDAVT, AND NADMSSBLE NEWSPAPER REPORTS.
On July 19, 1999, we directed the parties to maintain the status quo until further orders from
this Court. t appears that on the same day, petitioner issued a memorandum informing
employees and officials of the Office of the City Mayor that he was assuming the post of mayor
effective immediately. On July 23, 1999, respondents filed a motion seeking clarification of
our status quo order. Respondents claimed that the status quo referred to in the order should
be that where petitioner is already suspended and vice mayor Renato Osmea is the acting city
mayor.
Petitioner, in reply, argued that the status quo refers to "the last actual peaceable
uncontested status which preceded the pending controversy.
[2]
Thus, the status quo could not
be that where petitioner is preventively suspended since the suspension did not precede the
present controversy; it is the controversy.
We agree with petitioner in this regard. As explained by Justice Florenz D. Regalado, an
authority on remedial law:
"There have been instances when the Supreme Court has issued a status quo order which, as
the very term connotes, is merely intended to maintain the last, actual, peaceable and
uncontested state of things which preceded the controversy. This was resorted to when the
projected proceedings in the case made the conservation of the status quo desirable or
essential, but the affected party neither sought such relief or the allegations in his pleading did
not sufficiently make out a case for a temporary restraining order. The status quo order was
thus issued motu proprio on equitable considerations. Also, unlike a temporary restraining order
or a preliminary injunction, a status quo order is more in the nature of a cease and desist order,
since it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory
injunctive relief. The further distinction is provided by the present amendment in the sense that,
unlike the amended rule on restraining orders, a status quo order does not require the posting of
a bond.
[3]

On July 28, 1999, we heard the parties' oral arguments on the following issues:
1. What is the effect of the reelection of petitioner on the investigation of acts done before his
reelection? Did the Ombudsman for the Visayas gravely abuse his discretion in conducting the
investigation of petitioner and ordering his preventive suspension?
2. Assuming that the Ombudsman properly took cognizance of the case, what law should apply
to the investigation being conducted by him, the Local Government Code (R.A. 7160) or the
Ombudsman Law (R.A. 6770)? Was the procedure in the law properly observed?
3. Assuming further that the Ombudsman has jurisdiction, is the preventive suspension of
petitioner based on "strong evidence as required by law?
We will now address these issues together, for the proper resolution on the merits of the
present controversy.
Petitioner contends that, per our ruling in Aguinaldo v. Santos,
[4]
his reelection has rendered
the administrative case filed against him moot and academic. This is because reelection
operates as a condonation by the electorate of the misconduct committed by an elective official
during his previous term. Petitioner further cites the ruling of this Court in Pascual v. Hon.
Provincial oard of ueva Ecija,
[5]
that
". . . When the people have elected a man to office, it must be assumed that they did this with
knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. t is not for the court, by reason of such faults or
misconduct to practically overrule the will of the people.
Respondents, on the other hand, contend that while the contract in question was signed
during the previous term of petitioner, it was to commence or be effective only on September
1998 or during his current term. t is the respondents' submission that petitioner "went beyond
the protective confines
[6]
of jurisprudence when he "agreed to extend his act to his current term
of office.
[7]
Aguinaldo cannot apply, according to respondents, because what is involved in this
case is a misconduct committed during a previous term but to be effective during the current
term.
Respondents maintain that,
"...petitioner performed two acts with respect to the contract: he provided for a suspensive
period making the supply contract commence or be effective during his succeeding or current
term and during his current term of office he acceded to the suspensive period making the
contract effective during his current term by causing the implementation of the contract.
[8]

Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.
Further, respondents point out that the contract in question was signed just four days before
the date of the 1998 election and so it could not be presumed that when the people of Cebu City
voted petitioner to office, they did so with full knowledge of petitioner's character.
On this point, petitioner responds that knowledge of an official's previous acts is presumed
and the court need not inquire whether, in reelecting him, the electorate was actually aware of
his prior misdeeds.
Petitioner cites our ruling in Salalima v. Guingona,
[9]
wherein we absolved Albay governor
Romeo R. Salalima of his administrative liability as regards a retainer agreement he signed in
favor of a law firm during his previous term, although disbursements of public funds to cover
payments under the agreement were still being done during his subsequent term. Petitioner
argues that, following Salalima, the doctrine in Aguinaldo applies even where the effects of the
act complained of are still evident during the subsequent term of the reelected official. The
implementation of the contract is a mere incident of its execution. Besides, according to
petitioner, the "sole act for which he has been administratively charged is the signing of the
contract with F.E. Zuellig. The charge, in his view, excludes the contract's execution or
implementation, or any act subsequent to the perfection of the contract.
n Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to
that case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was
already pending when he filed his certificate of candidacy for his reelection bid. Nevertheless,
in Salalima, the Court applied the Aguinaldo doctrine, even if the administrative case against
Governor Salalima was filed after his reelection.
Worth stressing, to resolve the present controversy, we must recall that the authority of the
Ombudsman to conduct administrative investigations is mandated by no less than the
Constitution. Under Article X, Section 13[1], the Ombudsman has the power to:
"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.
R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory
power to conduct administrative investigations. Thus, Section 19 of said law provides:
"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 R.A. 6770 names the officials subject to the Ombudsman's disciplinary
authority:
"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.)
Petitioner is an elective local official accused of grave misconduct and dishonesty.
[10]
That
the Office of the Ombudsman may conduct an administrative investigation into the acts
complained of, appears clear from the foregoing provisions of R.A. 6770.
However, the question of whether or not the Ombudsman may conduct an investigation
over a particular act or omission, is different from the question of whether or not petitioner, after
investigation, may be held administratively liable. This distinction ought here to be kept in mind,
even as we must also take note that the power to investigate is distinct from the power to
suspend preventively an erring public officer.
Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend
an official subject to its administrative investigation is provided by specific provision of
law. Under Section 24 of R.A. 6770
"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. (Underscoring supplied.)
We have previously interpreted the phrase "under his authority to mean that the
Ombudsman can preventively suspend all officials under investigation by his office, regardless
of the branch of government in which they are employed,
[11]
excepting of course those
removable by impeachment, members of Congress and the Judiciary.
The power to preventively suspend is available not only to the Ombudsman but also to the
Deputy Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited.
There can be no question in this case as to the power and authority of respondent Deputy
Ombudsman to issue an order of preventive suspension against an official like the petitioner, to
prevent that official from using his office to intimidate or influence witnesses
[12]
or to tamper with
records that might be vital to the prosecution of the case against him.
[13]
n our view, the present
controversy simply boils down to this pivotal question: Given the purpose of preventive
suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a
grave abuse of discretion when he set the period of preventive suspension at six months?
Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among
other factors, the evidence of guilt is strong. The period for which an official may be
preventively suspended must not exceed six months. n this case, petitioner was preventively
suspended and ordered to cease and desist from holding office for the entire period of six
months, which is the maximum provided by law.
"SEC. 24. Preventive Suspension.
x x x
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. (Underscoring supplied.)
The determination of whether or not the evidence of guilt is strong as to warrant preventive
suspension rests with the Ombudsman.
[14]
The discretion as regards the period of such
suspension also necessarily belongs to the Ombudsman, except that he cannot extend the
period of suspension beyond that provided by law.
[15]
But, in our view, both the strength of the
evidence to warrant said suspension and the propriety of the length or period of suspension
imposed on petitioner are properly raised in this petition for certiorari and prohibition. These
equitable remedies under Rule 65 of the Rules of Court precisely exist to provide prompt relief
where an "officer exercising judicial or quasi-judicial functions has acted...with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law. (See Rule 65, Sec. 1).
t is pertinent to note here that the inquiry that preceded the filing of an administrative case
against petitioner was prompted by newspaper reports regarding the allegedly anomalous
contract entered into by petitioner, on behalf of Cebu City, with F.E. Zuellig.
[16]
n the
memorandum to respondent Mojica,
[17]
respondent Garciano recommended that petitioner be
preventively suspended, based on an initial investigation purportedly showing: (1) the contract
for supply of asphalt to Cebu City was designed to favor F.E. Zuellig, (2) the amount quoted in
the contract was too expensive compared to the amount for which asphalt may be bought from
local suppliers such as Shell and Petron, particularly considering that the amount was fixed in
dollars and was payable in pesos, thus exposing the city government to the risks attendant to a
fluctuating exchange rate, and (3) the interest of the city under the contract is not protected by
adequate security. These findings were based on the contract itself and on letters from Bitumex
and Credit Lyonnais. There were also letters from Shell and Petron that were replies to the
Office of the Ombudsman's (Visayas) inquiry on whether or not they could supply Cebu City
with asphalt and on what terms.
Given these findings, we cannot say now that there is no evidence sufficiently strong to
justify the imposition of preventive suspension against petitioner. But considering its purpose
and the circumstances in the case brought before us, it does appear to us that the imposition of
the maximum period of six months is unwarranted.
On behalf of respondents, the Solicitor General stated during his oral argument at the
hearing that the documents mentioned in respondents' comment (such as purchase orders,
purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were
obtained after petitioner had been suspended. Even if an afterthought, he claimed
they strengthen the evidence of respondents against petitioner. f the purpose of the preventive
suspension was to enable the investigating authority to gather documents without intervention
from petitioner, then, from respondents' submission, we can only conclude that this purpose
was already achieved, during the nearly month-long suspension of petitioner from June 25 to
July 19, 1999. Granting that now the evidence against petitioner is already strong, even without
conceding that initially it was weak, it is clear to us that the maximum six-month period is
excessive and definitely longer than necessary for the Ombudsman to make its legitimate case
against petitioner. We must conclude that the period during which petitioner was already
preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from
hiding and destroying needed documents, or harassing and preventing witnesses who wish to
appear against him.
We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's
claim that the Local Government Code, which he averred should apply to this case of an
elective local official, has been violated. True, under said Code, preventive suspension may
only be imposed after the issues are joined, and only for a maximum period of sixty days. Here,
petitioner was suspended without having had the chance to refute first the charges against him,
and for the maximum period of six months provided by the Ombudsman Law. But as
respondents argue, administrative complaints commenced under the Ombudsman Law are
distinct from those initiated under the Local Government Code. Respondents point out that the
shorter period of suspension under the Local Government Code is intended to limit the period of
suspension that may be imposed by a mayor, a governor, or the President, who may be
motivated by partisan political considerations. n contrast the Ombudsman, who can impose a
longer period of preventive suspension, is not likely to be similarly motivated because it is a
constitutional body. The distinction is valid but not decisive, in our view, of whether there has
been grave abuse of discretion in a specific case of preventive suspension.
Respondents base their argument on the deliberations of the Senate on Senate Bill No.
155, which became the Local Government Code. Senator Aquilino Pimentel, Jr., commenting
on the preservation in the proposed Code of the power of the Office of the President to suspend
local officials, said:
"Senator PimenteI. Now, as far as we are concerned, the Senate Committee is ready to adopt
a more stringent rule regarding the power of removal and suspension by the Office of the
President over local government officials, Mr. President. We would only wish to point out that in
a subsequent section, we have provided for the power of suspension of local government
officials to be limited only to 60 days and not more than 90 days in any one year, regardless of
the number of administrative charges that may be filed against a local government official. We,
in fact, had in mind the case of Mayor Ganzon of loilo where the Secretary of Local
Government sort of serialized the filing of charges against him so that he can be continuously
suspended when one case is filed right after the other, Mr. President.
[18]

Respondents may be correct in pointing out the reason for the shorter period of preventive
suspension imposable under the Local Government Code. Political color could taint the
exercise of the power to suspend local officials by the mayor, governor, or President's office. n
contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be
insulated from the vagaries of politics, as respondents would have us believe.
n Hagad v. Gozo-Dadole,
[19]
on the matter of whether or not the Ombudsman has been
stripped of his power to investigate local elective officials by virtue of the Local Government
Code, we said:
"ndeed, 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.
[20]

t was also argued in Hagad, that the six-month preventive suspension under the
Ombudsman Law is "much too repugnant to the 60-day period that may be imposed under the
Local Government Code. But per J. Vitug, "the two provisions govern differently.
[21]

However, petitioner now contends that Hagad did not settle the question of whether a local
elective official may be preventively suspended even before the issues could be joined. ndeed
it did not, but we have held in other cases that there could be preventive suspension even
before the charges against the official are heard, or before the official is given an opportunity to
prove his innocence.
[22]
Preventive suspension is merely a preliminary step in an administrative
investigation and is not in any way the final determination of the guilt of the official concerned.
Petitioner also avers that the suspension order against him was issued in violation of
Section 26(2) of the Ombudsman Law, which provides:
"SEC. 26. Inquiries. xxx
(2) The Office of the Ombudsman shall receive complaints from any source in whatever form
concerning an official act or omission. t shall act on the complaint immediately and if it finds the
same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal
citing the reasons therefor. f it finds a reasonable ground to investigate further, it shall first
furnish the respondent public officer or employee with a summary of the complaint and require
him to submit a written answer within seventy-two hours from receipt thereof.
Petitioner argues that before an inquiry may be converted into a full-blown administrative
investigation, the official concerned must be given 72 hours to answer the charges against
him. n his case, petitioner says the inquiry was converted into an administrative investigation
without him being given the required number of hours to answer.
ndeed, it does not appear that petitioner was given the requisite 72 hours to submit a
written answer to the complaint against him. This, however, does not make invalid the
preventive suspension order issued against him. As we have earlier stated, a preventive
suspension order may be issued even before the charges against the official concerned is
heard.
Moreover, respondents state that petitioner was given 10 days to submit his counter-
affidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in keeping
with Section 5(a) of the Rules of Procedure of the Office of the Ombudsman,
[23]
which provides:
"Sec. 5. Administrative adjudication; How conducted.
(a) f the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic
Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences
submitted by the complainant, and shall be ordered to file his counter-affidavits and other
evidences in support of his defense, within ten (10) days from receipt thereof, together with
proof of service of the same on the complainant who may file reply affidavits within ten (10) days
from receipt of the counter-affidavits of the respondent.
We now come to the concluding inquiry. Granting that the Office of the Ombudsman may
investigate, for purposes provided for by law, the acts of petitioner committed prior to his
present term of office; and that it may preventively suspend him for a reasonable period, can
that office hold him administratively liable for said acts?
n a number of cases, we have repeatedly held that a reelected local official may not be
held administratively accountable for misconduct committed during his prior term of
office.
[24]
The rationale for this holding is that when the electorate put him back into office, it is
presumed that it did so with full knowledge of his life and character, including his past
misconduct. f, armed with such knowledge, it still reelects him, then such reelection is
considered a condonation of his past misdeeds.
However, in the present case, respondents point out that the contract entered into by
petitioner with F.E. Zuellig was signed just four days before the date of the elections. t was not
made an issue during the election, and so the electorate could not be said to have voted for
petitioner with knowledge of this particular aspect of his life and character.
For his part, petitioner contends that "the only conclusive determining factor
[25]
as regards
the people's thinking on the matter is an election. On this point, we agree with petitioner. That
the people voted for an official with knowledge of his character is presumed, precisely to
eliminate the need to determine, in factual terms, the extent of this knowledge. Such an
undertaking will obviously be impossible. Our rulings on the matter do not distinguish the
precise timing or period when the misconduct was committed, reckoned from the date of the
official's reelection, except that it must be prior to said date.
As held in Salalima,
"The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is
still a good law. Such a rule is not only founded on the theory that an official's 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 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... (Emphasis
added.)
[26]

The above ruling in Salalima applies to this case. Petitioner cannot anymore be
held administratively liable for an act done during his previous term, that is, his signing of the
contract with F.E. Zuellig.
The assailed retainer agreement in Salalima was executed sometime in
1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be
made during his succeeding term. This situation is no different from the one in the present case,
wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor
were supposed to have commenced on September 1998, during petitioner's second term.
However, respondents argue that the contract, although signed on May 7, 1998, during
petitioner's prior term, is to be made effective only during his present term.
We fail to see any difference to justify a valid distinction in the result. The agreement
between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the
contract was signed, during petitioner's prior term. At that moment, petitioner already acceded
to the terms of the contract, including stipulations now alleged to be prejudicial to the city
government. Thus, any culpability petitioner may have in signing the contract already became
extant on the day the contract was signed. t hardly matters that the deliveries under the
contract are supposed to have been made months later.
While petitioner can no longer be held administratively liable for signing the contract with F.
E. Zuellig, however, this should not prejudice the filing of any case other than administrative
against petitioner. Our ruling in this case, may not be taken to mean the total exoneration of
petitioner for whatever wrongdoing, if any, might have been committed in signing the subject
contract. The ruling now is limited to the question of whether or not he may be
held administratively liable therefor, and it is our considered view that he may not.
HEREFORE, the petition is hereby DENED insofar as it seeks to declare that
respondents committed grave abuse of discretion in conducting an inquiry on complaints
against petitioner, and ordering their investigation pursuant to respondents' mandate under the
Constitution and the Ombudsman Law. But the petition is hereby GRANTED insofar as it seeks
to declare that respondents committed grave abuse of discretion concerning the period of
preventive suspension imposed on petitioner, which is the maximum of six months, it appearing
that 24 days the number of days from the date petitioner was suspended on June 25, 1999, to
the date of our status quo order on July 19, 1999 were sufficient for the purpose. Accordingly,
petitioner's preventive suspension, embodied in the order of respondent Deputy Ombudsman,
dated June 25, 1999, should now be, as it is hereby, LFTED immediately.
SO ORDERED.

EN BANC
G.R. No. 147870. JuIy 31, 2002]
RAMIR R. PABLICO, petitioner, vs. ALEJANDRO A. VILLAPANDO, respondent.
D E C I S I O N
YNARES-SANTIAGO, J.:
May local legislative bodies and/or the Office of the President, on appeal, validly impose the
penalty of dismissal from service on erring elective local officials?
This purely legal issue was posed in connection with a dispute over the mayoralty seat of
San Vicente, Palawan. Considering that the term of the contested office expired on June 30,
2001,
[1]
the present case may be dismissed for having become moot and
academic.
[2]
Nonetheless, we resolved to pass upon the above-stated issue concerning the
application of certain provisions of the Local Government Code of 1991.
The undisputed facts are as follows:
On August 5, 1999, Solomon B. Maagad, and Renato M. Fernandez, both members of
the Sangguniang ayan of San Vicente, Palawan, filed with the Sangguniang Panlalawigan of
Palawan an administrative complaint against respondent Alejandro A. Villapando, then Mayor of
San Vicente, Palawan, for abuse of authority and culpable violation of the
Constitution.
[3]
Complainants alleged that respondent, on behalf of the municipality, entered into
a consultancy agreement with Orlando M. Tiape, a defeated mayoralty candidate in the May
1998 elections. They argue that the consultancy agreement amounted to an appointment to a
government position within the prohibited one-year period under Article X-B, Section 6, of the
1987 Constitution.
n his answer, respondent countered that he did not appoint Tiape, rather, he merely hired
him. He invoked Opinion No. 106, s. 1992, of the Department of Justice dated August 21, 1992,
stating that the appointment of a defeated candidate within one year from the election as a
consultant does not constitute an appointment to a government office or position as prohibited
by the Constitution.
On February 1, 2000, the Sangguniang Panlalawigan of Palawan found respondent guilty
of the administrative charge and imposed on him the penalty of dismissal from
service.
[4]
Respondent appealed to the Office of the President which, on May 29, 2000, affirmed
the decision of the Sangguniang Panlalawigan of Palawan.
[5]

Pending respondent's motion for reconsideration of the decision of the Office of the
President, or on June 16, 2000, petitioner Ramir R. Pablico, then Vice-mayor of San Vicente,
Palawan, took his oath of office as Municipal Mayor. Consequently, respondent filed with the
Regional Trial Court of Palawan a petition for certiorari and prohibition with preliminary
injunction and prayer for a temporary restraining order, docketed as SPL Proc. No. 3462.
[6]
The
petition, seeks to annul, inter alia, the oath administered to petitioner. The Executive Judge
granted a Temporary Restraining Order effective for 72 hours, as a result of which petitioner
ceased from discharging the functions of mayor. Meanwhile, the case was raffled to Branch 95
which, on June 23, 2000, denied respondent's motion for extension of the 72-hour temporary
restraining order.
[7]
Hence, petitioner resumed his assumption of the functions of Mayor of San
Vicente, Palawan.
On July 4, 2000, respondent instituted a petition for certiorari and prohibition before the
Court of Appeals seeking to annul: (1) the May 29, 2000 decision of the Office of the President;
(2) the February 1, 2000, decision of the Sangguniang Panlalawigan of Palawan; and (3) the
June 23, 2000 order of the Regional Trial Court of Palawan, Branch 95.
On March 16, 2001, the Court of Appeals
[8]
declared void the assailed decisions of the
Office of the President and the Sangguniang Panlalawigan of Palawan, and ordered petitioner
to vacate the Office of Mayor of San Vicente, Palawan.
[9]
A motion for reconsideration was
denied on April 23, 2001.
[10]
Hence, the instant petition for review.
The pertinent portion of Section 60 of the Local Government Code of 1991 provides:
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 x x x x x
An eIective IocaI officiaI may be removed from office on the grounds enumerated above
by order of the proper court. (Emphasis supplied)
t is clear from the last paragraph of the aforecited provision that the penalty of dismissal
from service upon an erring elective local official may be decreed only by a court of law. Thus,
in Salalima, et al. v. Guingona, et al.,
[11]
we held that "[t]he Office of the President is without any
power to remove elected officials, since such power is exclusively vested in the proper courts as
expressly provided for in the last paragraph of the aforequoted Section 60.
Article 124 (b), Rule XX of the Rules and Regulations mplementing the Local Government
Code, however, adds that "(b) An elective local official may be removed from office on the
grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60,
Local Government Code of 1991] by order of the proper court or the discipIining authority
whichever first acquires jurisdiction to the excIusion of the other." The disciplining
authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/ayan and the
Office of the President.
[12]

As held in Salalima,
[13]
this grant to the "disciplining authority of the power to remove
elective local officials is clearly beyond the authority of the Oversight Committee that prepared
the Rules and Regulations. No rule or regulation may alter, amend, or contravene a provision of
law, such as the Local Government Code. mplementing rules should conform, not clash, with
the law that they implement, for a regulation which operates to create a rule out of harmony with
the statute is a nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author of the Local
Government Code of 1991, expressed doubt as to the validity of Article 124 (b), Rule XX of the
implementing rules.
[14]

Verily, the clear legislative intent to make the subject power of removal a judicial
prerogative is patent from the deliberations in the Senate quoted as follows:
x x x x x x x x x
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 just add the
following thought: t 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,
would like to suggest that we consider replacing the phrase "PROPER REGONAL TRAL
COURT OR THE SANDGANBAYAN 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. t is to be incorporated in the phraseology that will craft to capture the other
ideas that have been elevated.
x x x x x x x x x.
[15]

t is beyond cavil, therefore, that the power to remove erring elective local officials from
service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XX, of the Rules and
Regulations mplementing 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.
[16]
As explained by the Court
in Lacson v. Roque:
[17]

".the abridgment of the power to remove or suspend an elective mayor is not without its own
justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from
a restricted authority to suspend or remove must have been weighed against the injustices and
harms to the public interests which would be likely to emerge from an unrestrained discretionary
power to suspend and remove.
HEREFORE, in view of the foregoing, the instant petition for review is DENED.
SO ORDERED.

EN BANC
G.R. No. 14182. December 17, 2004]
EDGAR Y. TEVES and TERESITA Z. TEVES, petitioners, vs. THE
SANDIGANBAYAN, respondent.
D E C I S I O N
DAVIDE, JR., C.J.
The pivotal issue in this petition is whether a public official charged with violation of Section
3(h) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, for unlawful intervention, in his official capacity, in the issuance of a license in
favor of a business enterprise in which he has a pecuniary interest may be convicted, together
with his spouse, of violation of that same provision premised on his mere possession of such
interest.
Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves
seeks to annul and set aside the 16 July 2002 Decision
[1]
of the Sandiganbayan in Criminal
Case No. 2337 convicting them of violation of Section 3(h) of the Anti-Graft Law for possessing
direct pecuniary interest in the Valencia Cockpit and Recreation Center in Valencia.
The indictment reads:
[2]

The undersigned Special Prosecution Officer , Office of the Special Prosecutor, hereby
accuses EDGAR Y. TEVES and TERESTA TEVES of violation of Section 3(h) of Republic Act
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros
Oriental, Philippines, and within the jurisdiction of this Honorable Court, accused Edgar Y.
Teves, a public officer, being then the Municipal Mayor of Valencia, Negros Oriental, committing
the crime-herein charged in relation to, while in the performance and taking advantage of his
official functions, and conspiring and confederating with his wife, herein accused Teresita
Teves, did then and there willfully, unlawfully and criminally cause the issuance of the
appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in
favor of one DanieI Teves, said accused Edgar Y. Teves having a direct financial or pecuniary
interest therein considering the fact that said cockpit arena is actually owned and operated by
him and accused Teresita Teves.
CONTRARY TO LAW.
Upon their arraignment on 12 May 1997, the petitioners pleaded "not guilty. Pre-trial and
trial were thereafter set.
The petitioners and the prosecution agreed on the authenticity of the prosecution's
documentary evidence. Thus, the prosecution dispensed with the testimonies of witnesses and
formally offered its documentary evidence marked as Exhibits "A to "V.
[3]

On 23 February 1998, the petitioners filed their Comment/Objections to the evidence
offered by the prosecution and moved for leave of court to file a demurrer to evidence.
[4]
On 29
July 1998, the Sandiganbayan admitted Exhibits "A to "S of the prosecution's evidence but
rejected Exhibits "T, "U, and "V.
[5]
t also denied petitioners' demurrer to evidence,
[6]
as well as
their motion for reconsideration.
[7]
This notwithstanding, the petitioners filed a Manifestation that
they were, nonetheless, dispensing with the presentation of witnesses because the evidence on
record are inadequate to support their conviction.
On 16 July 2002, the Sandiganbayan promulgated a decision
[8]
(1) convicting petitioners
Edgar and Teresita Teves of violation of Section 3(h) of the Anti-Graft Law; (2) imposing upon
them an indeterminate penalty of imprisonment of nine years and twenty-one days as minimum
to twelve years as maximum; and (3) ordering the confiscation of all their rights, interests, and
participation in the assets and properties of the Valencia Cockpit and Recreation Center in favor
of the Government, as well as perpetual disqualification from public office.
[9]
The conviction was
anchored on the finding that the petitioners possessed pecuniary interest in the said business
enterprise on the grounds that (a) nothing on record appears that Mayor Teves divested himself
of his pecuniary interest in said cockpit; (b) as of April 1992, Teresita Teves was of record the
"owner/licensee of the cockpit; and (c) since Mayor Teves and Teresita remained married to
each other from 1983 until 1992, their property relations as husband and wife, in the absence of
evidence to the contrary, was that of the conjugal partnership of gains. Hence, the cockpit is a
conjugal property over which the petitioners have pecuniary interest. This pecuniary interest is
prohibited under Section 89(2) of R.A. No. 7160, otherwise known as the Local Government
Code (LGC) of 1991, and thus falls under the prohibited acts penalized in Section 3(h) of the
Anti-Graft Law.
The Sandiganbayan, however, absolved the petitioners of the charge of causing the
issuance of a business permit or license to operate the Valencia Cockpit and Recreation Center
on or about 4 February 1992 for not being well-founded.
On 26 August 2002, the petitioners filed the instant petition for review
on certiorari
[10]
seeking to annul and set aside the 16 July 2002 Decision of the Sandiganbayan.
At first, we denied the petition for failure of the petitioners to sufficiently show that the
Sandiganbayan committed any reversible error in the challenged decision as to warrant the
exercise by this Court of its discretionary appellate jurisdiction.
[11]
But upon petitioners' motion
for reconsideration,
[12]
we reinstated the petition.
[13]

The petitioners assert that the Sandiganbayan committed serious and palpable errors in
convicting them. n the first place, the charge was for alleged unlawful intervention of Mayor
Teves in his official capacity in the issuance of a cockpit license in violation of Section 3(h) of
the Anti-Graft Law. But they were convicted of having a direct financial or pecuniary interest in
the Valencia Cockpit and Recreation Center prohibited under Section 89(2) of the LGC of 1991,
which is essentially different from the offense with which they were charged. Thus, the
petitioners insist that their constitutional right to be informed of the nature and cause of the
accusation against them was transgressed because they were never apprised at any stage of
the proceedings in the Sandiganbayan that they were being charged with, and arraigned and
tried for, violation of the LGC of 1991. The variancedoctrine invoked by the respondent is but a
rule of procedural law that should not prevail over their constitutionally-guaranteed right to be
informed of the nature and cause of accusation against them.
Second, according to the petitioners, their alleged prohibited pecuniary interest in the
Valencia Cockpit in 1992 was not proved. The Sandiganbayan presumed that since Mayor
Teves was the cockpit operator and licensee in 1989, said interest continued to exist until 1992.
t also presumed that the cockpit was the conjugal property of Mayor Teves and his wife, and
that their pecuniary interest thereof was direct. But under the regime of conjugal partnership of
gains, any interest thereon is at most inchoate and indirect.
Also assigned as glaring error is the conviction of Teresita Teves, who is not a public
officer. n the information, only Mayor Teves was accused of "having a direct financial or
pecuniary interest in the operation of the Valencia Cockpit and Recreation Center in Negros
Oriental. His wife was merely charged as a co-conspirator of her husband's alleged act of
"while in the performance and taking advantage of his official functions, . willfully, unlawfully
and criminally caus[ing] the issuance of the appropriate business permit/license to operate the
said cockpit arena. Teresita Teves could not be convicted because conspiracy was not
established. Besides, the Sandiganbayan had already absolved the petitioners of this offense.
On the other hand, the Sandiganbayan, through the Office of the Special Prosecutor (OSP),
insists that the uncontroverted documentary evidence proved that petitioner Edgar Teves had
direct pecuniary interest over the cockpit in question as early as 26 September 1983. That
interest continued even though he transferred the management thereof to his wife Teresita
Teves in 1992, since their property relations were governed by the conjugal partnership of
gains. The existence of that prohibited interest is by itself a criminal offense under Section
89(2) of the LGC of 1991. t is necessarily included in the offense charged against the
petitioners, i.e., for violation of Section 3(h) of the Anti-Graft Law, which proscribes the
possession of a direct or indirect financial or pecuniary interest in any business, contract, or
transaction in connection with which the person possessing the financial interest intervenes in
his official capacity, or in which he is prohibited by the Constitution or any law from having any
interest. The use of the conjunctive word "or demonstrates the alternative mode or nature of
the manner of execution of the final element of the violation of the provision. Although the
information may have alleged only one of the modalities of committing the offense, the other
mode is deemed included in the accusation to allow proof thereof. There was, therefore, no
violation of the constitutional right of the accused to be informed of the nature or cause of the
accusation against them in view of the variance doctrine, which finds statutory support in
Sections 4 and 5 of Rule 120 of the Rules of Court.
The petition is not totally devoid of merit.
Section 3(h) of the Anti-Graft Law provides:
Section 3. Corrupt practices of public officers. n 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:
.
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.
The essential elements set out in the afore-quoted legislative definition of the crime of
violation of Section 3(h) of the Anti-Graft Law are as follows:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business,
contract, or transaction;
3. He either
a. intervenes or takes part in his official capacity in connection with such
interest; or
b. is prohibited from having such interest by the Constitution or by any law.
There are, therefore, two modes by which a public officer who has a direct or indirect
financial or pecuniary interest in any business, contract, or transaction may violate Section 3(h)
of the Anti-Graft Law. The first mode is if in connection with his pecuniary interest in any
business, contract or transaction, the public officer intervenes or takes part in his official
capacity. The second mode is when he is prohibited from having such interest by the
Constitution or any law.
We quote herein the Sandiganbayan's declaration regarding petitioners' culpability anent
the first mode:
[T]hat portion of the nformation which seeks to indict the spouses Teves for his causing
the issuance of a business permit/license to operate the Valencia cockpit on or about
February 4, 1992is not well-founded.
ayor dgar Teves could not have issued a permit to operate the cockpit in the year
1992 because as of January 1, 1992 the license could be issued only by the Sangguniang
Bayan. He may have issued the permit or license in 1991 or even before that when he legally
could, but that is not the charge. The charge is for acts committed in 1992.
[14]
[Emphasis
supplied].
The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of
the business permit or license to operate the Valencia Cockpit and Recreation Center is "not
well-founded. This it based, and rightly so, on the additional finding that only the Sangguniang
Bayan could have issued a permit to operate the Valencia Cockpit in the year 1992. ndeed,
under Section 447(3)
[15]
of the LGC of 1991, which took effect on 1 January 1992, it is the
Sangguniang Bayan that has the authority to issue a license for the establishment, operation,
and maintenance of cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the
municipal mayor was the presiding officer of the Sangguniang Bayan,
[16]
under the LGC of 1991,
the mayor is not so anymore and is not even a member of the Sangguniang Bayan. Hence,
Mayor Teves could not have intervened or taken part in his official capacity in the issuance of a
cockpit license during the material time, as alleged in the information, because he was not a
member of the Sangguniang Bayan.
[17]

A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator in the
absence of a finding that Mayor Teves himself is guilty of the offense charged. n short, the
Sandiganbayan correctly absolved the petitioners of the charge based on the first mode. And
there is no need to belabor this point.
The Sandiganbayan, however, convicted the petitioners of violation of Section 3(h) of the
Anti-Graft Law based on the second mode. t reasoned that the evidence overwhelmingly
evinces that Mayor Teves had a pecuniary interest in the Valencia Cockpit, which is prohibited
under Section 89(2) of the LGC of 1991.
The information accuses petitioner Edgar Teves, then Municipal Mayor of Valencia, Negros
Oriental, of causing, "while in the performance and taking advantage of his official functions, and
conspiring and confederating with his wife . the issuance of the appropriate business
permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel
Teves. The last part of the dispositive portion of the information states that "said
accused Edgar Y. Teves having a direct financial or pecuniary interest therein considering the
fact that said cockpit arena is actually owned and operated by him and accused Teresita
Teves.
A careful reading of the information reveals that the afore-quoted last part thereof is merely
an allegation of the second element of the crime, which is, that he has a direct or indirect
"financial or pecuniary interest in any business, contract or transaction. Not by any stretch of
imagination can it be discerned or construed that the afore-quoted last part of the information
charges the petitioners with the second mode by which Section 3(h) of the Anti-Graft Law may
be violated. Hence, we agree with the petitioners that the charge was for unlawful intervention
in the issuance of the license to operate the Valencia Cockpit. There was no charge for
possession of pecuniary interest prohibited by law.
However, the evidence for the prosecution has established that petitioner Edgar Teves,
then mayor of Valencia, Negros Oriental,
[18]
owned the cockpit in question. n his sworn
application for registration of cockpit filed on 26 September 1983
[19]
with the Philippine
Gamefowl Commission, Cubao, Quezon City, as well as in his renewal application dated 6
January 1989
[20]
he stated that he is the owner and manager of the said cockpit. Absent any
evidence that he divested himself of his ownership over the cockpit, his ownership thereof is
rightly to be presumed because a thing once proved to exist continues as long as is usual with
things of that nature.
[21]
His affidavit
[22]
dated 27 September 1990 declaring that effective
January 1990 he "turned over the management of the cockpit to Mrs. Teresita Z. Teves for the
reason that [he] could no longer devote a full time as manager of the said entity due to other
work pressure is not sufficient proof that he divested himself of his ownership over the cockpit.
Only the management of the cockpit was transferred to Teresita Teves effective January 1990.
Being the owner of the cockpit, his interest over it was direct.
Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his
wife, still he would have a direct interest thereon because, as correctly held by respondent
Sandiganbayan, they remained married to each other from 1983 up to 1992, and as such their
property relation can be presumed to be that of conjugal partnership of gains in the absence of
evidence to the contrary. Article 160 of the Civil Code provides that all property of the marriage
is presumed to belong to the conjugal partnership unless it be proved that it pertains exclusively
to the husband or to the wife. And Section 143 of the Civil Code declares all the property of the
conjugal partnership of gains to be owned in common by the husband and wife. Hence, his
interest in the Valencia Cockpit is direct and is, therefore, prohibited under Section 89(2) of the
LGC of 1991, which reads:
Section 89. Prohibited usiness and Pecuniary Interest. (a) It shaII be unIawfuI for any IocaI
government officiaI or employee, directly or indirectly, to:
.
(2) HoId such interests in any cockpit or other games licensed by a local
government unit.. [Emphasis supplied].
The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-
Graft Law, which is possession of a prohibited interest. But can the petitioners be convicted
thereof, considering that it was not charged in the information?
The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in
relation to Section 5, Rule 120, Rules of Criminal Procedure, which both read:
Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance
between the offense charged in the complaint or information and that proved, and the offense
as charged is included in or necessarily includes the offense proved, the accused shall be
convicted of the offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved.
Sec. 5. When an offense includes or is included in another. An offense charged necessarily
includes the offense proved when some of the essential elements or ingredients of the former,
as alleged in the complaint or information, constitutes the latter. And an offense charged is
necessarily included in the offense proved when the essential ingredients of the former
constitute or form part of those constituting the latter.
The elements of the offense charged in this case, which is unlawful intervention in the
issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law, are
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business,
contract, or transaction, whether or not prohibited by law; and
3. He intervenes or takes part in his official capacity in connection with such
interest.
On the other hand, the essential ingredients of the offense proved, which is possession of
prohibited interest in violation of Section 3(h) of the Anti-Graft Law, are as follows:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business,
contract or transaction; and
3. He is prohibited from having such interest by the Constitution or any law.
t is clear that the essential ingredients of the offense proved constitute or form part of those
constituting the offense charged. Put differently, the first and second elements of the offense
charged, as alleged in the information, constitute the offense proved. Hence, the offense
proved is necessarily included in the offense charged, or the offense charged necessarily
includes the offense proved. The variance doctrine thus finds application to this case, thereby
warranting the conviction of petitioner Edgar Teves for the offense proved.
The next question we have to grapple with is under what law should petitioner Edgar Teves
be punished. t must be observed that Section 3(h) of the Anti-Graft Law is a general provision,
it being applicable to all prohibited interests; while Section 89(2) of the LGC of 1991 is a special
provision, as it specifically treats of interest in a cockpit. Notably, the two statutes provide for
different penalties. The Anti-Graft Law, particularly Section 9, provides as follows:
SEC. 9. Penalties for violations. (a) Any public official or private person committing any of the
unlawful acts or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished
by imprisonment of not less than six years and one month nor more than fifteen years, perpetual
disqualification from public office, and confiscation or forfeiture in favor of the Government of
any prohibited interest..
On the other hand, Section 514 of the LGC of 1991 prescribes a lighter penalty; thus:
SECTON 514. Engaging in Prohibited usiness Transactions or Possessing Illegal Pecuniary
Interest. Any local official and any person or persons dealing with him who violate the
prohibitions provided in Section 89 of Book hereof shall be punished with imprisonment for six
months and one day to six years, or a fine of not less than Three thousand pesos (P3,000.00)
nor more than Ten Thousand Pesos (P10,000.00), or both such imprisonment and fine at the
discretion of the court.
t is a rule of statutory construction that where one statute deals with a subject in general
terms, and another deals with a part of the same subject in a more detailed way, the two should
be harmonized if possible; but if there is any conflict, the latter shall prevail regardless of
whether it was passed prior to the general statute.
[23]
Or where two statutes are of contrary
tenor or of different dates but are of equal theoretical application to a particular case, the one
designed therefor specially should prevail over the other.
[24]

Conformably with these rules, the LGC of 1991, which specifically prohibits local officials
from possessing pecuniary interest in a cockpit licensed by the local government unit and which,
in itself, prescribes the punishment for violation thereof, is paramount to the Anti-Graft Law,
which penalizes possession of prohibited interest in a general manner. Moreover, the latter took
effect on 17 August 1960, while the former became effective on 1 January 1991. Being the
earlier statute, the Anti-Graft Law has to yield to the LGC of 1991, which is the later expression
of legislative will.
[25]

n the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991, we
take judicial notice of the fact that under the old LGC, mere possession of pecuniary interest in a
cockpit was not among the prohibitions enumerated in Section 41
[26]
thereof. Such possession
became unlawful or prohibited only upon the advent of the LGC of 1991, which took effect on 1
January 1992. Petitioner Edgar Teves stands charged with an offense in connection with his
prohibited interest committed on or about 4 February 1992, shortly after the maiden appearance
of the prohibition. Presumably, he was not yet very much aware of the prohibition. Although
ignorance thereof would not excuse him from criminal liability, such would justify the imposition
of the lighter penalty of a fine of P10,000 under Section 514 of the LGC of 1991.
Petitioner Teresita Teves must, however, be acquitted. The charge against her is
conspiracy in causing "the issuance of the appropriate business permit/license to operate the
Valencia Cockpit and Recreation Center. For this charge, she was acquitted. But as discussed
earlier, that charge also includes conspiracy in the possession of prohibited interest.
Conspiracy must be established separately from the crime itself and must meet the same
degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be established
by direct evidence, for it may be inferred from the conduct of the accused before, during, and
after the commission of the crime, all taken together, the evidence must reasonably be strong
enough to show community of criminal design.
[27]

Certainly, there is no conspiracy in just being married to an erring spouse.
[28]
For a spouse
or any person to be a party to a conspiracy as to be liable for the acts of the others, it is
essential that there be intentional participation in the transaction with a view to the furtherance
of the common design. Except when he is the mastermind in a conspiracy, it is necessary that
a conspirator should have performed some overt act as a direct or indirect contribution in the
execution of the crime planned to be committed. The overt act must consist of active
participation in the actual commission of the crime itself or of moral assistance to his co-
conspirators.
[29]

Section 4(b) of the Anti-Graft Law, the provision which applies to private individuals, states:
SEC. 4. Prohibitions on private individuals. .
(b) t shall be unlawful for any person knowingly to induce or cause any public official to commit
any of the offenses defined in Section 3 hereof.
We find no sufficient evidence that petitioner Teresita Teves conspired with, or knowingly
induced or caused, her husband to commit the second mode of violation of Section 3(h) of the
Anti-Graft Law.
As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then
until 31 December 1991, possession by a local official of pecuniary interest in a cockpit was not
yet prohibited. t was before the effectivity of the LGC of 1991, or on January 1990, that he
transferred the management of the cockpit to his wife Teresita. n accordance therewith it was
Teresita who thereafter applied for the renewal of the cockpit registration. Thus, in her sworn
applications for renewal of the registration of the cockpit in question dated 28 January
1990
[30]
and 18 February 1991,
[31]
she stated that she is the Owner/Licensee and
Operator/Manager of the said cockpit. n her renewal application dated 6 January 1992,
[32]
she
referred to herself as the Owner/Licensee of the cockpit. Likewise in the separate Lists of Duly
Licensed Personnel for Calendar Years 1991
[33]
and 1992,
[34]
which she submitted on 22
February 1991 and 17 February 1992, respectively, in compliance with the requirement of the
Philippine Gamefowl Commission for the renewal of the cockpit registration, she signed her
name as Operator/Licensee.
The acts of petitioner Teresita Teves can hardly pass as acts in furtherance of a conspiracy
to commit the violation of the Anti-Graft Law that would render her equally liable as her
husband. f ever she did those acts, it was because she herself was an owner of the cockpit.
Not being a public official, she was not prohibited from holding an interest in cockpit. Prudence,
however, dictates that she too should have divested herself of her ownership over the cockpit
upon the effectivity of the LGC of 1991; otherwise, as stated earlier, considering her property
relation with her husband, her ownership would result in vesting direct prohibited interest upon
her husband.
n criminal cases, conviction must rest on a moral certainty of guilt.
[35]
The burden of proof is
upon the prosecution to establish each and every element of the crime and that the accused is
either responsible for its commission or has conspired with the malefactor. Since no conspiracy
was proved, the acquittal of petitioner Teresita Teves is, therefore, in order.
HEREFORE, premises considered, the 16 July 2002 Decision of the Sandiganbayan,
First Division, in Criminal Case No. 2337 is hereby MODFED in that (1) EDGAR Y. TEVES is
convicted of violation of Section 3(h) of Republic Act No. 3019, or the Anti-Graft and Corrupt
Practices Act, for possession of pecuniary or financial interest in a cockpit, which is prohibited
under Section 89(2) of the Local Government Code of 1991, and is sentenced to pay a fine
of P10,000; and (2) TERESTA Z. TEVES is hereby ACQUTTED of such offense.
Costs de oficio.
SO ORDERED.

SECOND DIVISION
G.R. No. 160991. February 28, 200
PACIFICO C. VELASCO, !etitioner, vs. THE SANDIGANBAYAN (Fourth Division), and
THE PEOPLE OF THE PHILIPPINES,Respondents.
D E C I S I O N
CALLEJO, SR., J.:
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court for the
nullification of the Resolution of the Sandiganbayan in People of the Philippines v. ayor
Pacifico C. 'elasco, Criminal Case No. 27821, denying his Supplemental Motion to Quash the
nformation in the said case, and the Resolution of the Sandiganbayan denying his motion for
reconsideration thereof.
The Backdrop
On September 21, 1999, the Civil Service Commission (CSC) issued a Resolution in CSC Case
No. 99-2137 ordering the dismissal of Engr. Emmanuel Agonoy, Municipal Engineer of Bacarra,
locos Norte, for gross neglect of duty. Agonoy did not file a motion for reconsideration thereof;
instead, he filed a petition for review in the Court of Appeals (CA), docketed as CA-G.R. SP No.
55596.
Despite his knowledge of the said CSC resolution, petitioner Mayor Pacifico C. Velasco of
Bacarra, locos Norte, allowed Agonoy to report for work as Municipal Engineer. He even issued
on October 2, 1999 a Memorandum to the Municipal Treasurer of Bacarra, Lorna S. Dumayag,
informing her that she had no reason not to pay the salaries and other benefits of Agonoy in his
capacity as Municipal Engineer. She was likewise directed to pay Agonoy's salary and other
benefits until the Supreme Court had finally decided the case, to wit:
emorandum
To : Mrs. Lorna S. Dumayag
Municipal Treasurer
Bacarra, locos Norte
Subject: TO PAY THE SALARES AND OTHER BENEFTS OF ENGR. EMMANUEL
A. AGONOY N HS CAPACTY AS MUNCPAL ENGNEER
Date : October 2, 1999
______________________________________________________________
While it is true that there is a resolution/decision of the Civil Service (CSC Resolution No.
992137), Regional Office No. 1 for the dismissal of Engr. Emmanuel Agonoy dated September
21, 1999, Engr. Agonoy, has still the option to seek or file an appeal to the Court of Appeals
based on existing Rules of Court and the Civil Service Commission and thereby you have no
reason not to pay his salaries and benefits in his capacity as the Municipal Engineer.
n this regard, you are hereby directed to pay all his salaries and benefits not until there will be a
final decision given by the Supreme Court regarding his case.
For strict compliance.
(Sgd.) LLEGBLE
PACFCO C. VELASCO
Mayor[1]
n the meantime, Agonoy continued reporting for duty as municipal engineer from November 11,
1999. On August 18, 2000, the CA denied Agonoy's petition for review. He filed a motion for
reconsideration of the decision, which the CA also denied on September 20, 2000.
Undaunted, Agonoy filed a petition for review of the CA decision with this Court. The case was
docketed as G.R. No. 145016.
n the meantime, on October 17, 2000, Mayor Velasco issued a Memorandum to the Municipal
Treasurer directing her to immediately release Agonoy's salary, Representation and
Transportation Allowance (RATA) and other benefits. Mayor Velasco again told the treasurer
that she had no right to withhold Agonoy's benefits, viz.:
emo o. 2000 ' 195
To ' Mrs. Lorna S. Dumayag
Municipal Treasurer
Bacarra, locos Norte
Subject TO RELEASE MMEDATELY THE SALARY, RATA AND OTHER BENEFTS
DUE TO ENGR. EMMANUEL AGONOY
Date October 17, 2000
____________________________________________________________
n view of the motion for extension of time to file petition for review on certiorari filed by Engr.
Emmanuel Agonoy and his counsel to the Supreme Court dated October 5, 2000, xerox copy is
hereto attached,. [y]ou are hereby directed to release immediately without delay the salary,
RATA and other benefits due to Engr. Emmanuel Agonoy. You have no right to withhold such
benefits for Engr. Agonoy not until the final court of the last recourse which is the Supreme
Court will give its final judgment.
For strict compliance.
(Sgd.) LLEGBLE
PACFCO C. VELASCO
Mayor
Cc: Engr. Emmanuel Agonoy
Mun. Engineer
Mrs. Filimona S. Acidera
MBO/HRMO Designate[2]
On December 4, 2000, this Court, in G.R. No. 145016, resolved to deny[3] the petition for
review filed by Agonoy. On February 28, 2001, Agonoy resigned as Municipal Engineer. The
Resolution of the Supreme Court dismissing the petition for review of Agonoy became final and
executory on May 10, 2001.
On March 18, 2002, Philip Corpus Velasco, the Vice Mayor of Bacarra, filed a
Complaint[4] before the Office of the Ombudsman against petitioner Mayor Velasco, Agonoy
and Municipal Treasurer Dumayag for violation of Republic Act No. 3019. n his Resolution
dated April 25, 2003, the Ombudsman found probable cause against petitioner Mayor Velasco
for violation of Section 3(e) of Rep. Act No. 3019, and filed an nformation with the
Sandiganbayan charging him of that crime. The case against Agonoy was dismissed because
he had earlier resigned; on the other hand, the Ombudsman absolved the Municipal Treasurer,
on the finding that she had merely obeyed the orders of the Mayor. The inculpatory portion of
the nformation reads:
That on or about September 21, 1999, in Bacarra, locos Norte, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused PACFCO VELASCO, a public
officer, being then the Mayor of the Municipality of Bacarra, committing the crime charged in
relation to and taking advantage of his official functions, acting with manifest partiality, evident
bad faith, or gross inexcusable negligence, did then and there willfully, unlawfully and criminally
give unwarranted benefits to EMMANUEL AGONOY by allowing the latter to continue his
employment as the Municipal Engineer of Bacarra, locos Norte and receive his salaries, RATA
and other benefits from November 1, 1999 up to February 28, 2001, in the total amount of
THREE HUNDRED SEVENTY-FVE THOUSAND ONE HUNDRED SXTY-EGHT
(P375,168.00) PESOS Philippine Currency, despite the fact that he knows fully well that
AGONOY has been dismissed from the government service in a Resolution No. 992137
rendered by the Civil Service Commission on September 21, 1999, to the damage and prejudice
of the government.
CONTRARY TO LAW.[5]
The petitioner filed a Supplemental Motion to Quash the nformation on the ground that it did not
charge the offense of violation of Section 3(e) of Rep. Act No. 3019. He alleged therein that
while he was aware of the CSC resolution dismissing Agonoy from the service, he was not
bound by it because he was not a party to CSC Case No. 99-2137. He also alleged therein that
he did not receive any directive from the CSC ordering him to implement its resolution.
Furthermore, even if the CSC did issue the said directive, he could not prevent Agonoy from
reporting for work. He further averred that he permitted Agonoy to report for work, and receive
salaries and other benefits from the municipality because the resolution of the CSC dated
September 21, 1999 was not immediately executory. t cannot, therefore, be claimed that he
gave unwarranted benefits to Agonoy through manifest partiality, evident bad faith, or gross
inexcusable negligence.
The petitioner Mayor averred that until the resolution of the Supreme Court denying Agonoy's
petition for review had become final and executory, he could not be compelled to implement the
September 21, 1999 Resolution of the CSC.
On October 8, 2003, the Sandiganbayan issued a Resolution denying the motion of the
petitioner.[6] The Court ruled that the nformation alleged all the elements of violation of Section
3(e) of Rep. Act No. 3019. The petitioner filed a motion for the reconsideration,[7] which the
Sandiganbayan likewise denied in a Resolution dated November 24, 2003.
The petitioner then filed the instant petition for certiorari with this Court, contending that -
THE RESPONDENT COURT GRAVELY ABUSED TS DSCRETON AND ACTED WTHOUT
AND/OR N EXCESS OF JURSDCTON N NOT QUASHNG THE NFORMATON N THE
SUBJECT CASE ON THE GROUND THAT THE ALLEGATONS THEREN DO NOT
CONSTTUTE THE OFFENSE AS CHARGED.[8]
The petitioner insists that while the nformation alleges that he was aware of the September 21,
1999 Resolution of the CSC dismissing Agonoy from the service, there is no allegation therein
that he was served with a copy of the said resolution and was directed to implement the same.
He avers that such allegations are essential elements of the offense of violation of Section 3(e)
of Rep. Act No. 3019. He reiterates that he was not bound to implement the resolution because
he was not a party to the case in the CSC. Hence, he maintains, it cannot be said that in
allowing Agonoy to continue reporting for work and ordering the municipal treasurer to give the
latter his salary, RATA and other benefits, he (the petitioner) gave unwarranted benefits or
undue advantage or preference to Agonoy through manifest partiality, evident bad faith, or gross
inexcusable negligence. The petitioner further avers that he could even be charged
administratively, civilly, or criminally if he relieved Agonoy from his official duties, and refused to
give the latter his salary, RATA and other benefits.
n its comment on the petition, the Office of the Special Prosecutor (OSP) avers that although
the petitioner was not a party in CSC Case No. 99-2137, he was bound to enforce the CSC
Resolution of September 21, 1999 as Municipal Mayor of Bacarra, and may even be cited for
contempt for his refusal to do so. The OSP maintains that the resolution of the CSC was
immediately executory, considering that Agonoy did not file a reconsideration thereof. Moreover,
Agonoy's act of filing a petition for review with the CA and the Supreme Court did not stop the
execution of said resolution. t posits that the petitioner could not be held civilly, criminally or
administratively liable for not complying with the CSC resolution, and argues that by issuing his
memoranda to the Municipal Treasurer, the petitioner acted with manifest partiality, evident bad
faith, or gross inexcusable negligence, and gave unwarranted benefits to Agonoy.
The petition has no merit and is, therefore, denied.
Section 3(e) of Rep. Act No. 3019 states that -
SEC. 3. Corrupt practices of public officers.
(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 of offices or government
corporations charged with the grant of licenses or permits or other concessions.
n Librada . Cabrera, et al. v. Sandiganbayan ,[9] this Court held that the essential elements of
violation of Section 3(e) of Rep. Act No. 3019 are as follows:
1. The accused must be a public officer discharging administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and
3. That his action caused any undue injury to any party, including the government, or giving any
private party unwarranted benefits, advantage or preference in the discharge of his
functions.[10]
The Court explained in the same case that there are two (2) ways by which a public official
violates Section 3(e) of Rep. Act No. 3019 in the performance of his functions, namely: (a) by
causing undue injury to any party, including the Government; or (b) by giving any private party
any unwarranted benefits, advantage or preference. The accused may be charged under either
mode or under both. Moreover, in "uibal v. Sandiganbayan,[11] the Court held that the use of
the disjunctive term 'or connotes that either act qualifies as a violation of Sec. 3(e) of Rep. Act
No. 3019.
n this case, the petitioner was charged of violating Section 3(e) of Rep. Act No. 3019 under two
alternative modes of committing the crime.
n its assailed Resolution dated October 8, 2003 the Sandiganbayan declared that the
nformation filed against the petitioner contained all the essential elements of the crime charged:
THE ELEMENTS THE ALLEGATONS
(1) that the accused is a public
officer discharging
administrative, judicial or official
functions;
... accused PACIFICO
'ELASCO, a public officer,
being then the ayor of the
unicipality of acarra,
committing the crime charged in
relation to and taking advantage
of his official functions,
(2) that his action caused any
undue injury to any party,
including the government;
... give unwarranted benefits to
EAUEL AGOOY by
allowing the latter to continue his
employment as the unicipal
Engineer of acarra, Ilocos
orte and receive his salaries,
RATA and other benefits from
ovember 1, 1999 up to
February 28, 2001, in the total
amount of THREEHU DRE D
SE 'ET Y-FI'E TH OUSAD
OE HU DRE D SIXTY-EIGHT
(P375,168.00) PESOS Philippine
Currency, despite the fact that
he knows fully well that
AGOOY has been dismissed
from the government service in a
Resolution o. 992137 rendered
by the Civil Service Commission
on September 21, 1999, to the
damage and prejudice of the
government.
(3) that he must have acted with
manifest partiality, evident bad
faith or inexcusable negligence.
acting with manifest partiality,
evident bad faith, or gross
inexcusable negligence, [12]
We agree with the Sandiganbayan. The petitioner, at the time of the alleged commission of the
crime, was the Municipal Mayor of Bacarra, locos Norte. As such, he was mandated to ensure
that all officers, including himself, abide by Article of Section 444(b)(x)[13] of Rep. Act No.
7160, otherwise known as the Local Government Code, which directs executive officials and
employees of the municipality to faithfully discharge their duties and functions as provided by
law. Considering such duty, the petitioner had to enforce decisions or final resolutions, orders or
rulings of the CSC. Furthermore, under Section 83 of the Uniform Rules on Administrative
Cases in the Civil Service, as implemented by CSC Resolution No. 99-1936, he may be cited in
contempt of the Commission in case of his refusal or failure to do so, and may even be
administratively charged therefor:
Section 83. Non-execution of Decision . ' Any officer or employee who willfully refuses or fails
to implement the final resolution, decision, order or ruling of the Commission to the prejudice of
the public service and the affected party, may be cited in contempt of the Commission and
administratively charged with conduct prejudicial to the best interest of the service or neglect of
duty.
t is, thus, not necessary that the officer or employee who willfully refuses or fails to implement
such final resolution be a party to the case which was resolved by the CSC or by its Regional
Office.
However, in order for such resolution to be implemented, it is required that a copy of the CSC
Resolution be furnished to the implementing agency, or that such agency had knowledge
thereof. t is also required that the subject CSC Resolution is final and executory. Corollarily,
Section 80 of the Uniform Rules on Administrative Cases in the Civil Service provides that the
decision of the CSC or its Regional Office shall be immediately executory after fifteen (15) days
from receipt thereof unless a motion for reconsideration is seasonably filed, thus:
Section 80. Execution of Decision. ' The decisions of the Commission Proper or its
RegionaI Offices shaII be immediateIy executory after fifteen (1) days from receipt
thereof, unIess a motion for reconsideration is seasonabIy fiIed, in which case the
execution of the decision shaII be heId in abeyance.[14]
n this case, the petitioner knew of the questioned CSC Resolution even before he was officially
furnished with a copy thereof. n fact, the petitioner unequivocably admitted that he knew of the
September 21, 1999 Resolution of the CSC dismissing Agonoy as Municipal Engineer of
Bacarra, locos Norte, in his Memoranda to the Municipal Treasurer.
The petitioner should have known that in case of Agonoy's failure to file any motion for the
reconsideration of the CSC Resolution, such resolution would become executory, and he would
thus be mandated to enforce the same. However, if Agonoy had filed a petition for review in the
CA and the appellate court had issued a stay of execution as provided for in Section 82[15]of
the Uniform Rules on Administrative Cases in the Civil Service, in tandem with Section 12, Rule
43[16] of the Rules of Court, as amended, the petitioner could not be faulted for allowing
Agonoy to continue working and receiving compensation therefor.
n this case, Agonoy did not file any motion for reconsideration of the CSC Resolution; while he
filed a petition for review of the CSC Resolution in the CA and in this Court, no stay order was
issued by either courts in his favor.
Thus, the petitioner defied the CSC Resolution dated September 21, 1999 in CSC Case No. 99-
2137; he allowed Agonoy to report for work and ordered the Municipal Treasurer to pay to
Agonoy his salary, RATA and other benefits, first, in his Memorandum of October 2, 1999,
issued shortly after the CSC Resolution; and second, in the Memorandum of October 17, 2000,
issued shortly after the CA denied the petition for review of Agonoy on August 18, 2000. The
petitioner even warned the Municipal Treasurer that she had no right to withhold the said salary
and other benefits from Agonoy.
While there is no showing in the records that the petitioner Mayor was informed that Agonoy did
not file any motion for the reconsideration of the CSC Resolution, prudence dictated that he
should have ascertained whether Agonoy had done so. The petitioner should have at least
attempted to verify whether Agonoy was able to secure a stay order from the CA before issuing
such memoranda. ndeed, the petitioner's failure to do so constitutes gross negligence on his
part. As a consequence of the Memoranda issued by the petitioner, the municipal treasurer
remitted Agonoy's salary, RATA and other benefits in the total amount of P375,168.00, thus
giving unwarranted benefits to the latter and causing undue injury to the government.
IN LIGHT OF ALL THE FOREGOING, the petition is DSMSSED for lack of merit. The assailed
Resolutions of the Sandiganbayan are AFFRMED. Costs against the petitioner.
SO ORDERED.




EN BANC


JOSE C. MIRANDA, G.R. NO. 14098
Petitioner,
Present:

DAVIDE, JR., C.J.,
- versus - PUNO,
PANGANIBAN,
QUISUMBING,
YNARES-SANTIAGO,
HON. SANDIGANBAYAN, SANDOVAL-GUTIERREZ,
OFFICE OF THE OMBUDSMAN, CARPIO,
SEC. JOSE D. LINA, JR., in his AUSTRIA-MARTINEZ,
capacity as Secretary of the DILG,
*
CORONA,
and FAUSTINO DY, JR. in his CARPIO MORALES,
capacity as Governor of the CALLEJO, SR.,
Province of IsabeIa, AZCUNA,
Respondents. TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.

PromuIgated:

JuIy 27, 200
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


DECISION

PUNO, J.:
First, the facts.
The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of
Santiago City, sabela, under preventive suspension for six months from 25 July 1997 to 25
January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees.
1]
Subsequently, then Vice
Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the
Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312.
2]
n
the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following
acts on 24 November 1997 despite the continuing effectivity of the Ombudsman's preventive
suspension order: (a) issued a memorandum addressed to Navarro advising her that he was
assuming his position as City Mayor;
3]
(b) gave directives to the heads of offices and other
employees;
4]
(c) issued Office Order No. 11-021 which authorized certain persons to start
work;
]
and (d) insisted on performing the functions and duties of Mayor despite Navarrro's
requests to desist from doing so without a valid court order and in spite of the order of
Department of nterior and Local Government (DLG) Undersecretary Manuel Sanchez directing
him to cease from reassuming the position.
6]
Vice Mayor Navarro contended that Mayor
Miranda committed the felony of usurpation of authority or official functions under Article 177 of
the Revised Penal Code (RPC).
7]

n his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of
his lawyer and in good faith.
8]
He contended that under Section 63(b) of the Local Government
Code, local elective officials could not be preventively suspended for a period beyond 60
days.
9]
He also averred that, on the day he reassumed office, he received a memorandum from
DLG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately
complied with the same.
10]
Notably, Mayor Miranda's counter-affidavit also stated that he left
the mayoralty post after "coercion by the Philippine National Police.
11]

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an nformation
against Mayor Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority.
On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct
a reinvestigation of the case in light of the manifestations made by prosecution and defense
counsel.
12]
After reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia)
recommended the dismissal of the case in a Resolution dated 14 September 2000.
13]
Coquia
held that Miranda reassumed his office in "good faith and on "mistake of fact due to the
"difficult questions of law involved.
14]

Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia's
resolution to the Ombudsman's Chief Legal Counsel for review. The Chief Legal Counsel
disagreed with Coquia's findings and recommended the filing of the case against Mayor
Miranda.
1]
He pointed out that Mayor Miranda's invocation of good faith was belied by the fact
that he received a memorandum from the DLG informing him that his view of the preventive
suspension period was untenable and that he should serve out its remaining period.
16]
He
further noted that Miranda violated the orders of both the Ombudsman and the
DLG.
17]
Ombudsman Desierto adopted the Chief Legal Counsel's recommendation,
18]
and the
case was re-raffled to Special Prosecution Officer Evelyn T. Lucero. SubsequentIy, the
prosecution fiIed an amended Information with the Sandiganbayan,
19]
to which the
petitioner interposed a negative pIea.
20]

On 28 November 2001, the prosecution fiIed before the Sandiganbayan a motion
to suspend Mayor Miranda pendente lite based on Section 13 of RepubIic Act No. 3019
(R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.
21]
Miranda
opposed the motion on the ground that the offense of usurpation of authority or official functions
under Article 177 of the RPC is not embraced by Section 13 of R.A. No. 3019 which only
contemplates offenses enumerated under R.A. No. 3019, Title V, Book of the RPC or which
involve "fraud upon government or public funds or property.
22]

In a ResoIution dated 4 February 2002, the Sandiganbayan preventiveIy
suspended Mayor Miranda from office for 90 days.
23]
The anti-graft court held that a
violation of Article 177 of the RPC involves fraud "which in a general sense is deemed to
comprise anything calculated to deceive, including all acts, omissions, and concealment
involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in
damage to another or by which an undue and unconscious advantage is taken of another.
24]
t
further ruled that Miranda's act fell within the catch-all provision "x x x or for any offense
involving fraud upon government.
2]
Miranda's motion for reconsideration was denied in the
Sandiganbayan's Resolution dated 17 June 2002.
26]
Hence, the present petition assaiIing
the Sandiganbayan's orders of preventive suspension. The petitioner contends that the
Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground
not authorized by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019
applies only to fraudulent acts involving public funds or property; and (2) whether the crime of
usurpation of authority or official functions involves "fraud upon government or public funds or
property found in Section 13 of R.A. No. 3019.
We rule in the negative.
First. Section 13 of R.A. No. 3019, as amended, provides:
Section 13. Suspension and loss of benefits. Any incumbent public
officer against whom any criminal prosecution under a valid information under
this Act or under Title 7, Book of the Revised Penal Code or for any offense
involving fraud upon government or public funds or property whether as a simple
or as a complex offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from office. Should he be
convicted by final judgment, he shall lose all retirement or gratuity benefits under
any law, but if he is acquitted, he shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.

n the event that such convicted officer, who may have already been
separated from the service, has already received such benefits he shall be liable
to restitute the same to the Government.

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two
types of offenses: (1) any offense involving fraud on the government; and (2) any offense
involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A.
No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public
funds or property. The phrase "any offense involving fraud upon government or public funds or
property is clear and categorical. To limit the use of "government as an adjective that qualifies
"funds is baseless. The word "public precedes "funds and distinguishes the same from private
funds. To qualify further "public funds as "government funds, as petitioner claims is the law's
intent, is plainly superfluous. We are bound by the rule that a statute should be construed
reasonably with reference to its controlling purpose and its provisions should not be given a
meaning that is inconsistent with its scope and object. R.A. No. 3019, commonly known as the
Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own
officials.
Second. We further hold that the Sandiganbayan did not gravely abuse its discretion
when it ruled that petitioner's act fell within the catch-all provision "x x x or for any offense
involving fraud upon government. The term "fraud is defined, viz.:
An instance or an act of trickery or deceit esp. when involving
misrepresentation: an act of deluding
27]


t is obvious to the eyes that the phrase "fraud upon government means "any instance or act of
trickery or deceit against the government. t cannot be read restrictively so as to be equivalent
to malversation of funds as this is covered by the preceding phrase "any offense involving . . .
public funds or property. t ought to follow that "fraud upon government was committed when
the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the
Mayor under pretense of official position.
The dissent opines that fraud upon government is not necessarily an essential element
of the crime of usurpation of authority. The submission may be correct as a general proposition
but general propositions hardly decide a case. n the case at bar, the issue is whether the
alleged acts of usurpation of authority committed by the petitioner involve "fraud upon
government or public funds or property as the term is understood under Section 13 of R.A. No.
3019. n ruling in the affirmative, the Sandiganbayan held:
Let us take a look at the acts complained of as alleged in the Amended
nformation dated July 27, 2001:
x x x the above-named accused, a public officer, being
then the elected City Mayor of Santiago City, while under
preventive suspension did then and there, willfully, unlawfully and
knowingly and under pretense of official position, assume the
duties and functions of the Office of the Mayor, issue directives
and memoranda, and appoint certain persons to various positions
in the City Government and perform acts pertaining to an office to
which he knowingly was deprived of.
Moreover, in private complainant Amelita S. Navarro's Affidavit of
Complaint dated November 26, 1997, she said: "x x x, he proceeded to his office
and started giving directives to the various heads of office and other employees,
the unexpected acts of respondents had caused serious disruptions in the day to
day affairs of the city government.
Accused's acts therefore in assuming the duties and function of the Office
of the Mayor despite his suspension from said office resulted to a clear disruption
of office and worst, a chaotic situation in the affairs of the government as the
employees, as well as the public, suffered confusion as to who is the head of the
Office. This actuation of herein accused constitutes fraud which in general sense
is deemed to comprise anything calculated to deceive, including all acts,
omissions, and concealment involving a breach of legal or equitable duty, trust or
confidence justly reposed, resulting in damage to another or by which an undue
and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19).
Hence, the act complained of against accused herein falls in the catchall
provision "x x x or for any offense involving fraud upon government x x x.
Moreover, the firmly entrenched doctrine which was held by the Highest
Tribunal in a long line of cases is that "x x x under Section 13 of the Anti-Graft
and Corrupt Practices Law, the suspension of a public officer is mandatory after
a determination has been made of the validity of the nformation x x x. n fact,
as early as 1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the
Honorable Supreme Court speaking thru Justice Relova said:
Once the information is found to be sufficient in form and
substance, then the Court must issue the order of suspension as a
matter of course. There are no ifs and buts about it. x x x
After a perusal of the amended information herein, it clearly appeared that
the same was apparently valid for it conforms to the requirements laid down
under Section 6[,] Rule 110 of the Rules of Court. n fact, accused herein
interposed a negative plea thereto thereby tacitly acquiescing to the validity of
the said nformation.
There being no valid ground raised by the accused sufficient enough to
warrant denial of the prayer of the prosecution in its Motion to Suspend
Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of
the law, the said prayer should be accorded affirmative relief.
28]
(Citations
omitted)

n denying petitioner's Motion for Reconsideration, the Sandiganbayan further held:
Accused in his motion substantially alleged that Article 177 (Usurpation of
Authority and Official Function) of the Revised Penal Code, which is the charge
against herein accused, does not fall under the catchall provision of Section 13 of
Republic Act No. 3019 "x x x or for any offense involving fraud upon government
or public funds or property x x x. He said that the acts complained of as alleged
in the nformation do not constitute fraud upon government or public fund or
property.
Though the argument by the accused seems plausible, this Court is still
inclined to uphold its ruling suspending accused pendente lite. The accused
argued that the fraud contemplated in the law is one involving (1) government
funds or property; and (2) public funds or property. This is precisely availing in
the case at bar. The nformation in herein case, says: "x x x accused x x x
assume the duties and functions of the Office of the Mayor, issue directives and
memoranda and appoint certain persons to various positions in the city
government, and perform acts pertaining to an office to which he knowingly was
deprived of. When accused-mayor appointed persons in various positions, he
indirectly dealt with the city's funds as those persons appointed will be given their
respective salaries, benefits and other monetary consideration which will be paid
wholly or mainly out of the city's funds. Additionally, when he performed acts
pertaining to the Office of the Mayor, i.e.[,] approval of vouchers, and payment of
other expenses which is subject to proof, he likewise indirectly dealt with the
funds of the city.
Moreover, as the prosecution said, "when accused Miranda, willfully and
knowingly, during the effectivity of his suspension barged into the City Hall,
issued orders and directives and performed functions as City Mayor, he was
sending the unwritten yet visible message that he was authorized to do and
function as such. x x x. We hold this as a fraud upon government resulting in
the chaos or confusion albeit temporary, as the employees would be in a
quandary whom to follow or obey.
Hence, considering that the charge herein evidently falls within the
compass of the suspension provision invoked by the prosecution, there is no
cogent reason for this Court to depart from its previous ruling. Further,
considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the
motion for reconsideration is hereby denied.
Accordingly, the Motion for Reconsideration is denied for lack of merit.
29]


This Court finds no reason to disagree with the Sandiganbayan. ts conclusions are
amply supported by the record. Additionally, the issue of whether petitioner committed fraud
upon the government or public funds or property is essentially factual. n a special civil action
for certiorari, the only question that may be raised is whether or not the respondent acted
without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct
errors of fact or law which do not amount to grave abuse of discretion.
30]

The dissenting opinion, however, says there was no fraud. t holds that "it would be
fraud of public funds if these public officials just collected their salarieswithout rendering
service to the government. t further asserts that "fraud upon government must be read so
as to require that malversation of funds was committed.
31]
This is a compIete volte face from
its claim that Section 13 of R.A. No. 3019 covers two types of offenses: (1) any offense
invoIving fraud upon the government; and (2) any offense invoIving pubIic funds or
property.
32]
What is more, adopting the dissenting opinion's line of reasoning would render
superfluous the phrase "fraud upon government as malversation is subsumed by "any offense
involving public funds or property.
Third. We are not a bit persuaded by the posture of the petitioner that he reassumed
office under an honest beIief that he was no longer under preventive suspension. Petitioner's
pretense cannot stand scrutiny. Petitioner's own affidavit states:
33]

8. That on November 24, 1997, at that time, (sic) had already served
my single preventive suspension for a total number of ONE HUNDRED TWENTY
(120) days more or less counted from July 24, 1997, which far exceeds the
allowable period of 60 days as maximum preventive suspension, for a single
suspension for a local elective official like me as provided for under the Local
Government Code of 1991 (sic) on the same date, November 24, 1997 in good
faith and upon the advise (sic) of my lawyers, notified both the Ombudsman and
DLG of my intention to assume my office as the duly elected City Mayor of
Santiago City;

9. That earlier on November 24, 1997 started to reassume my office
and functions as City Mayor of Santiago City; surprisingly on the same date,
November 24, 1997 received a memorandum issued by Undersecretary Manuel
R. Sanchez of DLG instructing me to cease and desist from my plan to
reassume the functions and duties of my office;

10. For Iess than a week, after November 24, 1997 Vice-Mayor
AMELTA NAVARRO relentlessly harassed and threatened me and my
constituents with bodily harm using the strong arm of the law thru the brute force
of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was
constrained to ceased (sic) from performing my duties and functions to
avoid any possibIe unfortunate incident that may happen to me and any
constituents; x x x.
34]
(Emphases supplied)

By petitioner's own admission, he refused to leave his position despite the
memorandum of Undersecretary Sanchez and Ieft only a few days after receipt thereof due to
the coercion of the PhiIippine NationaI PoIice. This contradicts his assertion that
he immediateIy complied with the memorandum of Undersecretary Sanchez.
3]
Petitioner
cannot escape from his own admission.
To be sure, petitioner's honest beIief defense is oId hat. n the 1956 case of PeopIe
v. HiIvano,
36]
the facts are:
When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on
official business early in the morning of September 22, 1952, he designated the
herein defendant Francisco Hilvano, councilor, to discharge the duties of his
office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went
to the municipal building; and having found Hilvano acting in the place of the
Mayor, he served written notices to the corresponding municipal officers,
including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties
of the absent mayor. However, Hilvano refused to yield, arguing that he had
been designated by the Mayor. Whereupon the Vice-Mayor sent a telegram to
the Executive Secretary informing the latter of the controversy. And the said
Secretary replied by letter, that under sec. 2195 of the Revised Administrative
Code it was the Vice-Mayor who should discharge the duties of the Mayor during
the latter's temporary absence. Shown this official pronouncement, Hilvano still
refused to surrender the position. Again the Vice-Mayor sought the opinion of the
Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the
right to the office. Notwithstanding such opinion which was exhibited to him
Hilvano declined to vacate the post, which he held for about a month, appointing
some policemen, solemnizing marriages and collecting the corresponding salary
for mayor.

Wherefore Francisco Hilvano was prosecuted and after trial was
convicted of usurpation of public authority under Republic Act No. 10. He
appealed in due time.

n rejecting the defense of the accused Hilvano, we ruled:
37]


There is no excuse for defendant-appellant. In the beginning he might
have pleaded good faith, invoking the designation by the Mayor; but afterhe had
been shown the letter of the Executive Secretary and the opinion of the
provincial fiscal, he had no right thereafter stubbornly to stick to the position. He
was rightfully convicted.

Petitioner's excuse for violating the order of preventive suspension is too flimsy to merit
even a side-glance. He alleged that he merely followed the advice of his lawyer. If petitioner
and his counseI had an iota of respect for the ruIe of Iaw, they should have assailed the
validity of the order of suspension in court instead of taking the law into their own hands.
Fourth. t should be stressed that petitioner was suspended by the
Sandiganbayan. Under Section 13 of R.A. No. 3019, this suspension is mandatory if the
information is sufficient. Understandably, the dissent argues that the Amended nformation is
insufficient in form as it should have "expressly and clearly stated that Miranda re-assumed
office to defraud the government or that in re-assuming office Miranda committed acts that
defrauded the government
38]
and that it is improper to take into account the petitioner's
admissions in his affidavit for this purpose.
With due respect, the dissent is way off-line. The records will show that petitioner did
not file a motion to quash the information or a motion for bill of particulars before pleading to the
information. t is basic that entering a plea waives any objection the petitioner may have to the
validity of the information except on the following grounds: (1) the information charges no
offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the
offense has been extinguished; and (4) double jeopardy has attached.
39]
Objections to the
sufficiency of the allegations in the Amended nformation do not fall among the exceptions to the
rule. They fall under the objection that the information "does not conform substantially to the
prescribed form.
40]
Needless to state, the petitioner has by his acts acquiesced to the validity
and sufficiency of the Amended nformation. t is, thus, incorrect for the dissenting opinion to
peddle the proposition that the petitioner has been deprived of his constitutional right to be
apprised of the nature and cause of the accusation against him. Worse, it is improper for the
dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it is the
petitioner who should raise this objection in a motion to quash or motion for biII of
particuIars before entering his plea.
41]
The irregular procedure followed by the dissent would
encourage the pernicious practice of "sandbagging where counsel foregoes raising a pleading
defect before trial where it can be easily corrected only to raise the defect later in the hope of
obtaining an arrest of judgment or new trial from a sympathetic magistrate.
42]
t is precisely this
evil that is addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure.
Even assuming for the nonce, that the objection to the sufficiency of the information was
raised in a timely fashion by the petitioner, the dissenting opinion's arguments still do not
convince. The validity or sufficiency of allegations in an information is determined according to
the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz:
SECTON 9. Cause of the Accusation. The acts or omissions
complained of as constituting the offense and the qualifying and aggravating
circumstances must be stated in ordinary and concise language and not
necessarily in the language used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is being charged as well
as its qualifying and aggravating circumstances and for the court to pronounce
judgment.
43]


The test is whether the crime is described in intelligible terms with such particularity as
to apprise the accused, with reasonable certainty, of the offense charged. The raison d'etre of
the rule is to enable the accused to suitably prepare his defense.
44]
A perusal of the Amended
nformation will bear out that it has hurdled this legal bar. We quote its contents:
That on or about 24 November 1997, in the City of Santiago, sabela,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then the elected City Mayor of Santiago City,
while under preventive suspension, did, then and there, willfully, unlawfully, and
knowingly and under pretense of official position, assume the duties and function
of the Office of the Mayor, issue directives and memoranda, and appoint certain
persons to various positions in the city government, and perform acts pertaining
to an office to which he knowingly was deprived of.
4]


Using this test, it cannot be said that the Amended nformation failed to properly apprise
the petitioner of the charge against him. The information charged the petitioner with assuming
the duties and performing acts pertaining to the office of Mayor willfully, unlawfully and
knowingly under the pretense of official position. Moreover, it states some of the specific acts
which constitute usurpation of official functions, namely, issuing directives and memoranda and
appointing certain persons to various positions in the city government. These allegations are
clear enough for a layman to understand. ndeed, even the petitioner does not complain about
their ambiguity. Only the dissent does.
Fifth. The dissenting opinion also contends that the Ombudsman's authority to
preventively suspend local elective officials for 6 months is limited by Section 63(b) of the Local
Government Code. Under the latter law, petitioner can only be suspended for a maximum
period of 60 days. t then jumps to the conclusion that petitioner could not have usurped
authority because he reassumed office after 60 days.
[46]

With due respect, the dissent fails to focus on the proper issue. The issue before this
Court is whether the Sandiganbayan committed a grave abuse of discretion in suspending the
petitioner for 90 days. The validity of the Ombudsman's order of preventive suspension of the
petitioner for 6 months is not the one assailed in the case at bar. The irrelevance of the
suspension order of the Ombudsman notwithstanding, the reliance of the dissenting opinion
on Garcia v. Mojica isinapropos. n Garcia, we held:
Given these findings, we cannot say now that there is no evidence
sufficiently strong to justify the imposition of preventive suspension against
petitioner. But considering its purpose and the circumstances in the case
brought before us, it does appear to us that the imposition of the maximum
period of six months is unwarranted.

On behalf of respondents, the Solicitor General stated during his oral
argument at the hearing that the documents mentioned in respondents' comment
(such as purchase orders, purchase requests, and disbursement vouchers),
documents that show petitioner's guilt, were obtained after petitioner had been
suspended. Even if an afterthought, he claimed they strengthen the evidence of
respondents against petitioner. If the purpose of the preventive suspension
was to enabIe the investigating authority to gather documents without
intervention from petitioner, then, from respondents' submission, we can
onIy concIude that this purpose was aIready achieved, during the nearIy
month-Iong suspension of petitioner from June 2 to JuIy 19, 1999.
Granting that now the evidence against petitioner is aIready strong, even
without conceding that initiaIIy it was weak, it is cIear to us that the
maximum six-month period is excessive and definiteIy Ionger than
necessary for the Ombudsman to make its Iegitimate case against
petitioner. We must conclude that the period during which petitioner was already
preventively suspended, has been sufficient for the lawful purpose of preventing
petitioner from hiding and destroying needed documents, or harassing and
preventing witnesses who wish to appear against him.
e reach the foregoing concIusion, however, without necessariIy
subscribing to petitioner's cIaim that the LocaI Government Code, which he
averred shouId appIy to this case of an eIective IocaI officiaI, has been
vioIated. True, under said Code, preventive suspension may only be imposed
after the issues are joined, and only for a maximum period of sixty days. Here,
petitioner was suspended without having had the chance to refute first the
charges against him, and for the maximum period of six months provided by the
Ombudsman Law. But as respondents argue, administrative compIaints
commenced under the Ombudsman Law are distinct from those initiated
under the LocaI Government Code. Respondents point out that the shorter
period of suspension under the Local Government Code is intended to limit the
period of suspension that may be imposed by a mayor, a governor, or the
President, who may be motivated by partisan political considerations. n
contrast the Ombudsman, who can impose a Ionger period of preventive
suspension, is not IikeIy to be simiIarIy motivated because it is a
constitutionaI body. The distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a specific case of preventive
suspension.
47]
(Emphases supplied)


Nowhere in Garcia is it stated that the limits provided in the Local Government Code
apply to the Ombudsman. n fact, the Court expressIy stated that its decision was rendered
without subscribing to the petitioner's claim that the Local Government Code had been violated.
n fine, the Court only ruled that the Ombudsman acted with grave abuse of discretion in
imposing a 6-month preventive suspension since it was admitted that the documents required
were already obtained by 19 July 1999 or 24 days after the imposition of the preventive
suspension. Therefore, the purpose for which the suspension was imposed was already served.
The dissenting opinion also cites the case of Rios v. Sandiganbayan
48]
as basis for
assailing the Ombudsman's order of preventive suspension. Rios is neither here nor there since
the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. t
is also worth noting that Rios cited Section 63 of the Local Government Code as its legal basis.
This provision provides:
SECTON 63. Preventive Suspension. -

(a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of a
province, a highly urbanized or an independent component city;
(2) By the governor, if the respondent is an elective official of a
component city or municipality; or
(3) By the mayor, if the respondent is an elective official of the
barangay.

(b) Preventive suspension may be imposed at any time after the issues are
joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence: Provided, That, any
single preventive suspension of local elective officials shall not extend
beyond sixty (60) days: Provided, further, That in the event that several
administrative cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within a single
year on the same ground or grounds existing and known at the time of the
first suspension.
(c) Upon expiration of the preventive suspension, the suspended elective
official shall be deemed reinstated in office without prejudice to the
continuation of the proceedings against him, which shall be terminated
within one hundred twenty (120) days from the time he was formally
notified of the case against him. However, if the delay in the proceedings
of the case is due to his fault, neglect, or request, other than the appeal
duly filed, the duration of such delay shall not be counted in computing
the time of termination of the case.


t is plain that the provision was only meant as a cap on the discretionary power of the
President, governor and mayor to impose excessively long preventive suspensions. The
Ombudsman is not mentioned in the said provision and was not meant to be governed thereby.
ndeed, the reason is not hard to distill. The President, governor and mayor are political
personages. As such, the possibility of extraneous factors influencing their decision to impose
preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to
political pressure given the independence of the office which is protected by no less than the
Constitution. This view was embraced by the Court in Hagad v. Gozo-DadoIe
49]
and Garcia v.
Mojica.
0]
n Hagad, we held:
Respondent IocaI officiaIs 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 LocaI Government Code to even now maintain its appIication. The
two provisions govern differentIy. n order to justify the preventive suspension
of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should
be strong, and (a) the charge against the officer or employee should involve
dishonestly, oppression or grave misconduct or neglect in the performance of
duty; (b) that the charges should warrant removal from the service; or (c) the
respondent's continued stay in office would prejudice the case filed against him.
The Ombudsman can impose the 6-month preventive suspension to all public
officials, whether elective or appointive, who are under investigation. Upon the
other hand, in imposing the shorter period of sixty (60) days of preventive
suspension prescribed in the Local Government Code of 1991 on an elective
local official (at any time after the issues are joined), it would be enough that (a)
there is reasonable ground to believe that the respondent has committed the act
or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of
the offense so warrants, or (d) the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records
and other evidence.
1]



n the same vein, we made the following observations in Garcia, viz.:

Respondents may be correct in pointing out the reason for the shorter
period of preventive suspension imposable under the Local Government Code.
Political color could taint the exercise of the power to suspend local officials by
the mayor, governor, or President's office. In contrast the Ombudsman,
considering the constitutionaI origin of his Office, aIways ought to be
insuIated from the vagaries of poIitics, as respondents wouId have us
beIieve. x x x

It was aIso argued in Hagad, that the six-month preventive
suspension under the Ombudsman Law is "much too repugnant" to the 60-
day period that may be imposed under the LocaI Government Code. But
per J. Vitug, "the two provisions govern differentIy."
2]
(Emphases supplied)


There is no reason to reverse this ruling. Our above ruling is in accord with the intent of
the law. t bears emphasis that Senator Pimentel
3]
explained during the Senate deliberations
that the purpose of Section 63 of the Code is to prevent the abuse of the power of
preventive suspension by members of the executive branch, to wit:
The President.
4]
recall that in the case of loilo City Mayor Ganzon, he
challenged the right of the President, acting through the Secretary of Local
Government, think, Luis Santos, to suspend him - -

Senator PimenteI. That is true, Mr. President.

The President. - - contending that under the new Constitution, even the
President does not have that right.

Senator PimenteI. Now, as far as we are concerned, the Senate
Committee is ready to adopt a more stringent ruIe regarding the power of
removaI and suspension by the Office of the President over IocaI
government officiaIs, Mr. President. We would only wish to point out that in a
subsequent section, we have provided for the power of suspension of local
government officials to be limited only to 60 days and not more than 90 days in
any one year, regardless of the number of administrative charges that may be
filed against a local government official. e, in fact, had in mind the case of
Mayor Ganzon of IIoiIo where the Secretary of LocaI Government sort of
seriaIized the fiIing of charges against him so that he can be continuousIy
suspended when one case is fiIed right after the other, Mr. President.


The President. Can that be done under this new Code?


Senator PimenteI. Under our proposal, that can no longer be done, Mr.
President.
]


Verily, Section 63 of the Local Government Code does not govern preventive
suspensions imposed by the Ombudsman, which is a constitutionally created office and
independent from the Executive branch of government.
6]
The Ombudsman's power of
preventive suspension is governed by Republic Act No. 6770,
7]
otherwise known as "The
Ombudsman Act of 1989, which provides:
SECTON 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.
8]
(Emphasis supplied)

The six-month period of preventive suspension imposed by the Ombudsman
9]
was indubitably
within the limit provided by its enabling law. This enabling law has not been modified by the
legislature.
The dissenting opinion submits that providing for a six-month limit for the Ombudsman
while keeping the limit for executive officials at sixty days violates the constitutional proscription
against equal protection of the law. n essence, it avers that there is no substantial distinction
between preventive suspensions handed down by the Ombudsman and those imposed by
executive officials. On the contrary, there is a world of difference between them. The
Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from
political pressure. Among these statutory protections are fiscal autonomy,
60]
fixed term of
office
61]
and classification as an impeachable officer.
62]
This much was recognized by this Court
in the earlier cited case of Garcia v. Mojica.
63]
Moreover, there are stricter safeguards for
imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires
that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the
following circumstances are present: (a) the charge against such officer or employee involves
dishonesty, oppression, or grave 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.
64]

The dissenting opinion finally points out the possibility of abuse by the Ombudsman in
imposing preventive suspensions. The short reply is that all powers are susceptible of abuse
but that is no reason to strike down the grant of power. Suffice it to say that the proper remedies
against abuse in the exercise of power are a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure or amendment of the Ombudsman's enabling law by the
legislature, not a contortionist statutory interpretation by this Court.
IN VIE HEREOF, the instant petition is DISMISSED there being no showing that the
Sandiganbayan gravely abused its discretion in issuing its Resolution of 4 February 2002,
preventively suspending the petitioner for 90 days.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
THRD DVSON
G.R. No. 16062 February 13, 2006
HON. TOMAS N. JOSON III, in his capacity as Governor of the Province of Nueva Ecija,
and The SANGGUNIANG PANLALAIGAN OF NUEVA ECIJA, Petitioners,
vs.
COURT OF APPEALS and ELIZABETH R. VARGAS, Respondent.
D E C S O N
CARPIO, J.:
The Case
This is a petition for certiorari
1
with a prayer for the issuance of a temporary restraining order or
writ of preliminary injunction. The petition seeks to set aside the Resolution dated 13 October
2003 of the Court of Appeals in CA-G.R. SP No. 78247 granting the writ of preliminary injunction
enjoining and restraining Governor Tomas N. Joson ("Governor Joson") and
the Sangguniang Panlalawigan of Nueva Ecija ("Sangguniang Panlalawigan") from conducting
proceedings in the administrative case against Mayor Elizabeth R. Vargas and from imposing
the order of preventive suspension.
The Facts
On 8 January 2003, eight members of the Sangguniang ayan of Aliaga, Nueva Ecija ("SB
Members"), filed with the Sangguniang Panlalawigan an administrative complaint against the
incumbent Municipal Mayor of Aliaga, Elizabeth R. Vargas ("Mayor Vargas"), for dishonesty,
misconduct in office, and abuse of authority. The SB Members alleged that Mayor Vargas
submitted to the Provincial Budget Officer two falsified documents, namely, Appropriation
Ordinance No. 1, series of 2002 ("Appropriation Ordinance No. 1") and Resolution No. 2, series
of 2002, approving the enactment of Appropriation Ordinance No. 1. The administrative case
was docketed as ADM. CASE No. 02-S-2003.
On 13 February 2003, Mayor Vargas filed a complaint for annulment of falsified minutes of
session and appropriation ordinance with damages against the SB members before the
Regional Trial Court of Cabanatuan City ("Cabanatuan RTC"). The case was docketed as Civil
Case No. 4442.
On 18 February 2003, Mayor Vargas filed before the Sangguniang Panlalawigan a motion to
suspend proceedings and/or motion to dismiss due to the pendency of a prejudicial question in
Civil Case No. 4442, specifically questioning the genuineness of the documents she allegedly
falsified.
2
Without resolving the motion, the Sangguniang Panlalawigan passed Resolution No.
80-S-2003, dated 3 March 2003, recommending to Governor Joson the preventive suspension
of Mayor Vargas for 60 days.
3
On 17 March 2003, the Sangguniang Panlalawigan issued
Resolution No. 105-S-2003, denying Mayor Vargas' motion to suspend proceedings and/or
motion to dismiss.
4

Mayor Vargas appealed to the Office of the President praying for the reversal of Resolution No.
105-S-2003 of theSangguniang Panlalawigan. The case was docketed as O.P. Case No. 03-D-
164.
n April 2003, Governor Joson issued an order of preventive suspension against Mayor Vargas.
Mayor Vargas filed before the Office of the President a very urgent petition to set aside the
suspension order.
On 22 April 2003, the Office of the President, through Acting Deputy Executive Secretary
Manuel B. Gaite ("Secretary Gaite"), issued an Order, the dispositive portion of which reads:
ACCORDNGLY, the instant motion is GRANTED and the undated Preventive Suspension
Order against Mayor Elizabeth R. Vargas of the municipality of Aliaga, Nueva Ecija is hereby
lifted and set aside.
Vice Mayor Victorino E. Reyes who may have assumed the position of Acting Municipal Mayor
of Aliaga, Nueva Ecija, is hereby directed to cease and desist from performing the duties of and
functions of municipal mayor and vacate the same pending final resolution of Administrative
Case No. 02-s-2003. Mayor Vargas may now reassume his (sic) position as such.
The Department of the nterior and Local Government is hereby directed to implement this
Order immediately.
SO ORDERED.
5

On 25 April 2003, Governor Joson filed with the Office of the President a motion for
reconsideration. On 8 July 2003, the Office of the President issued a Resolution, the dispositive
portion of which reads:
WHEREFORE, the instant motion is hereby GRANTED, and the April 22, 2003 Order subject
thereof is hereby recalled and set aside. Accordingly, the Order of Governor Tomas N. Joson
placing Mayor Elizabeth R. Vargas under preventive suspension for a period of sixty (60) days
is hereby reinstated.
The Department of nterior and Local Government is directed to implement this resolution
immediately.
SO ORDERED.
6

On 17 July 2003, Mayor Vargas moved for reconsideration of the Resolution dated 8 July 2003.
On 18 July 2003, Mayor Vargas filed before the Office of the President an urgent motion to
resolve O.P. Case No. 03-D-164.
On 23 July 2003, Mayor Vargas filed before the Court of Appeals a petition for "Certiorari,
Prohibition and Mandamus, with Urgent Prayer for Preliminary njunction or Temporary
Restraining Order," docketed as CA-G.R. SP No. 78247.
On 14 August 2003, the Court of Appeals issued a Resolution, the dispositive portion of which
reads:
WHEREFORE, in the interest of justice, to the end that undue prejudice and/or injury may be
avoided to any and all parties affected by these proceedings, as well as not to render nugatory
and ineffectual the resolution of this Court of the issues herein presented, let a TEMPORARY
RESTRANNG ORDER be issued, to be effective upon service and for a period of SXTY (60)
days, unless sooner lifted. ACCORDNGLY, respondents Provincial Governor and the
SANGGUNANG PANLALAWGAN of the Province of Nueva Ecija are hereby commanded to
cease and desist from conducting proceedings in ADMNSTRATVE CASE No. 02-S-2003, and
from enforcing the assailed July 8, 2003 Resolution of the Office of the President, through the
Executive Secretary, which directed the reinstatement of the order for petitioner's preventive
suspension. Furthermore, in view of the serious issues involved, let the hearing and
consideration of the propriety of the issuance of a preliminary injunction be scheduled on
September 2, 2003 at 10:30 AM, Paras Hall, Second Floor, Main Building, Court of Appeals,
Ma. Orosa St., Ermita, Manila.
n the meantime, without necessarily giving due course to the instant petition for certiorari,
respondents are directed to file a comment, not a motion to dismiss, within ten (10) days from
notice. Petitioner, upon the other hand, has five (5) days from receipt of respondents' comment,
to file her reply.
SO ORDERED.
7

On 13 October 2003, the Court of Appeals resolved to issue a writ of preliminary injunction to
further enjoin and restrain Governor Joson from imposing the order of preventive suspension
and the Sangguniang Panlalawiganfrom conducting proceedings in the administrative case
against Mayor Vargas.
Hence, this petition.
The ssues
Petitioners contend that:
1. THE COURT OF APPEALS ACTED WTH MANFEST PARTALTY, ARBTRARLY,
AND N GRAVE ABUSE OF DSCRETON N SSUNG THE QUESTONED ORDER
BECAUSE
a. RESPONDENT VARGAS AVALED OF THE WRONG REMEDY WHEN SHE
FLED CA-G.R. SP NO. 78247;
b. RESPONDENT VARGAS CLEARLY FALED TO EXHAUST
ADMNSTRATVE REMEDES BEFORE SEEKNG JUDCAL RELEF;
c. THE PREVENTVE SUSPENSON ORDER WAS LEGALLY AND VALDLY
SSUED.
2. THE COURT OF APPEALS ACTED ARBTRARLY AND N GRAVE ABUSE OF
DSCRETON AMOUNTNG TO LACK OR EXCESS OF JURSDCTON N DRECTNG
PETTONERS "TO CEASE AND DESST FROM CONDUCTNG PROCEEDNGS N
ADMNSTRATVE CASE NO. 02-S-2003."
3. THE NSTANT CASE PRESENTS A STUATON WHEREN A MOTON FOR
RECONSDERATON MAY BE DSPENSED WTH BEFORE THE NSTANT
CERTORAR CASE CAN BE FLED.
8

The Ruling of the Court
The petition is without merit.
Petitioners allege that Mayor Vargas should have filed with the Court of Appeals a petition for
review under Rule 43 of the 1997 Rules of Civil Procedure and not a special civil action for
certiorari under Rule 65. Furthermore, Mayor Vargas filed the action for certiorari even while her
motion for reconsideration was still pending resolution before the Office of the President.
According to petitioners, the Court of Appeals acted with manifest bias and partiality when it
issued the writ of preliminary injunction against petitioners despite the filing of a wrong remedy
and the non-exhaustion of administrative remedies.
Under Section 1, Rule 65 of the 1997 Rules of Civil Procedure, the writ of certiorari is proper
when the following requisites are present:
1. t is directed against any tribunal, board or officer exercising judicial or quasi-judicial
functions;
2. Such tribunal, board or officer has acted without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction;
and
3. There is no appeal or any plain, speedy and adequate remedy in the ordinary course
of law.
Mayor Vargas filed with the Court of Appeals a special civil action for certiorari under Rule 65
alleging grave abuse of discretion on the part of Secretary Gaite. Thus, in a Resolution dated 14
August 2003, the Court of Appeals stated:
To question the foregoing Resolution of respondent Executive Secretary, petitioner interposed
the instant petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, essentially
posing the following issues: (1) was it proper for respondent Executive Secretary to have ruled
that petitioner is considered in default pursuant to Article 126, Rule XX of the Rules
mplementing the Local Government Code of 1991; (2) can the civil case filed by petitioner
before the Cabanatuan RTC for annulment of falsified minutes of session and appropriation
ordinance with damages be considered a prejudicial question which warrants the suspension of
the proceedings in the administrative case; (3) has the respondent Sanggunian[g] Panlalawigan
jurisdiction to hear the administrative case filed against herein petitioner, when the relief sought
therein is her removal from office.
At first blush, the assailed resolution having being issued by the Office of the President, through
the Executive Secretary, it would seem that the proper remedy is an appeal via a petition for
review under Rule 43 of the 1997 Rules of Civil Procedure. A perusal of the instant petition for
certiorari would, however, reveal that petitioner is alleging that the challenged resolution was
issued with grave abuse of discretion and beyond respondents' jurisdiction, hence, the
appropriate remedy is certiorari under Rule 65. Moreover, assuming arguendo that the proper
remedy is a petition for review under Rule 43, the Supreme Court has oftentimes ruled that, in
accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, a
petition for certiorari may be treated as having been filed under Rule 43, in which case this
Court chooses to do so, in view of the gravity and seriousness of the issues involved
herein.
9
(Emphasis supplied)
The Court finds no grave abuse of discretion on the part of the appellate court in assuming
jurisdiction over the case. The special civil action of certiorari is proper to correct errors of
jurisdiction including the commission of grave abuse of discretion amounting to lack or excess of
jurisdiction.
10
All the issues submitted for resolution in the Court of Appeals involve questions of
law which are reviewable on certiorari.
11

Exception to the Application of Exhaustion of Administrative Remedies
Under the doctrine of exhaustion of administrative remedies, a litigant cannot go to court without
first pursuing his administrative remedies, otherwise his action is premature and his case is not
ripe for judicial determination.
12
A litigant should first exhaust the administrative remedies
provided by law before seeking judicial intervention in order to give the administrative agency an
opportunity to decide correctly the matter and prevent unnecessary and premature resort to the
court.
13

However, the Court recognizes some exceptions to the rule of exhaustion of administrative
remedies. As held in Paat v. Court of Appeals:
14

x x x However, we are not amiss to reiterate that the principle of exhaustion of administrative
remedies as tested by a battery of cases is not an ironclad rule. This doctrine is a relative one
and its flexibility is called upon by the peculiarity and uniqueness of the factual and
circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due
process, (2) when the issue involved is purely a legal question, (3) when the administrative
action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on
the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when
the respondent is a department secretary whose acts as an alter ego of the President bears the
implied and assumed approval of the latter, (7) when to require exhaustion of administrative
remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9)
when the subject matter is a private land in land case proceedings, (10) when the rule does not
provide a plain, speedy and adequate remedy, and (11) when there are circumstances
indicating the urgency of judicial intervention.
The requirement of prior exhaustion of administrative remedies may likewise be dispensed with
in the following instances: (1) when the claim involved is small; (2) when strong public interest is
involved; and (3) in quo warranto proceedings.
15

n this case, Mayor Vargas filed the petition for certiorari with the Court of Appeals alleging that
Secretary Gaite issued the Resolution dated 8 July 2003 with grave abuse of discretion. Mayor
Vargas raised the following issues: (1) whether it was proper for Secretary Gaite to have ruled
that Mayor Vargas is considered in default pursuant to Article 126, Rule XX of the Rules
mplementing the Local Government Code of 1991; (2) whether the civil case filed by Mayor
Vargas before the Cabanatuan RTC for annulment of falsified minutes of session and
appropriation ordinance with damages is a prejudicial question which warrants the suspension
of the proceedings in the administrative case; (3) whether the Sangguniang Panlalawigan has
jurisdiction to hear the administrative case filed against Mayor Vargas, when the relief sought is
her removal from office.
16

The issues raised are questions of law which involve the interpretation and application of laws.
Resolution of such questions constitutes essentially an exercise of judicial power which is
exclusively allocated to the Supreme Court and such courts as the Legislature may
establish.
17
Since the issues involve purely legal questions which the court may review,
exhaustion of administrative remedies may be dispensed with.
18

Propriety of the Preventive Suspension Order
Under Section 63 of the Local Government Code, preventive suspension may be imposed (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 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. ssues are considered joined when the complaint has been answered and there are
no longer any substantial preliminary issues that remain to be threshed out.
19

n its Order dated 22 April 2003, the Office of the President stated that the facts of the case do
not warrant a conclusion that issues are deemed joined. Furthermore, the Office of the
President found no basis for the issuance of the preventive suspension. The Office of the
President explained:
n the administrative case, it appears that petitioner did not file, so far, an answer to the
complaint thus the issues could not have been considered joined. What she did was to file a
Motion To Suspend Proceedings And/Or Motion To Dismiss which was treated by the
sanggunian as her answer. However, nothing in the records can be inferred that the petitioner
intended the said motion to be her answer. n fact, when the motion was denied on March 17,
2003 through SP Resolution No. 105-s-2003, she immediately appealed the said Resolution to
this Office.
n fine, no inference can be had that the motion filed was considered her answer otherwise,
petitioner could have stated so therein.
Finally, even assuming that petitioner's motion was already her answer and therefore, the
issues have been joined, it is observed that the grounds cited by the sanggunian in
recommending the assailed preventive suspension are general statements mere verbatim
reproduction of the provision of law, unsupported by any factual and substantial evidence. There
is no showing that the evidence of guilt is strong, with both parties charging each other with
falsification of documents. n fact, that is the subject of Civil Case No. 4442. Moreover, it cannot
be said that the continuance in office of respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence. The recitals in SP
Resolution No. 105 s. 2003 are unconvincing.
ACCORDNGLY, the instant motion is GRANTED and the undated Preventive Suspension
Order against Mayor Elizabeth R. Vargas of the municipality of Aliaga, Nueva Ecija is hereby
lifted and set aside.
20
(Emphasis supplied)
t would thus appear that the grounds cited by the Sangguniang Panlalawigan for
recommending the preventive suspension of Mayor Vargas were just general statements
unsupported by any evidence. This is contrary to the requisites for a preventive suspension
which require that evidence of guilt must be strong and that 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. The
haste in issuing the resolution recommending the preventive suspension of Mayor Vargas is
unreasonable considering the gravity of the effects of such suspension. Suspension from office
of an elective official would deprive the electorate of the services of the person they have voted
into office. As held in Ganzon v. Court of Appeals:
21

The plain truth is that this Court has been ill at ease with suspensions x x x because it is out of
the ordinary to have a vacancy in local government. The sole objective of a suspension, as we
have held, is simply "to prevent the accused from hampering the normal cause (sic) of the
investigation with his influence and authority over possible witnesses" or to keep him off "the
records and other evidence." t 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 cannot exceed
sixty days, 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.
However, upon motion of Governor Joson, the Office of the President reversed its previous
order. Citing the case of Joson v. Torres,
22
the Office of the President held that Mayor Vargas'
failure to file her answer in ADM. CASE No. 02-S-2003 was deemed a waiver of her right to file
answer and present evidence. As a consequence, the issues were deemed to have been joined.
n the Joson case, this Court found inexcusable the failure of petitioner there to file an answer
despite the grant of three extensions of the period to file an answer. t was only seven months
later and after the lapse of all the extensions of time for filing an answer that petitioner there
filed a motion to dismiss.
n this case, Mayor Vargas moved for a 15-day extension to file an answer. Before the lapse of
the period of extension, Mayor Vargas filed before the Cabanatuan RTC a civil case for
annulment of Appropriation Ordinance No. 1 and the Minutes of the Session of 7 February 2002
which were the bases of the administrative charge against her. Four days after the lapse of the
period of extension, Mayor Vargas filed a Motion to Suspend Proceedings and/or Motion to
Dismiss due to prejudicial question. Without resolving Mayor Vargas' motion, theSangguniang
Panlalawigan issued a resolution recommending the preventive suspension of Mayor Vargas for
a period of 60 days. Unlike the Joson case, there was no unreasonable delay employed by
Mayor Vargas in filing an answer. nstead of an answer, Mayor Vargas filed a Motion to
Suspend Proceedings and/or Motion to Dismiss because of a civil case which she had earlier
filed seeking the annulment of the appropriation ordinance and the minutes of session. The
Joson case is therefore inapplicable to this case.
Validity of appellate court's order for petitioners to cease and desist from conducting
proceedings in Administrative Case No. 02-S-2003
n a Resolution dated 13 October 2003, the Court of Appeals issued a preliminary injunction to
further enjoin petitioners from conducting proceedings in the administrative case against Mayor
Vargas in order to prevent injustice. The Court of Appeals explained:
n a Resolution dated August 14, 2003, in order not to render nugatory the resolution of the
present petition by this Court, We issued a temporary restraining order temporarily enjoining the
Provincial Governor and the Sangguniang Panlalawigan of the Province of Nueva Ecija from
conducting further proceedings in Administrative Case No. 02-S-2003, and from enforcing the
assailed resolution of the Office of the President, which directed the reinstatement of the order
for petitioner's preventive suspension.
After taking into account the parties' arguments for and against the issuance of a writ of
preliminary injunction in a hearing conducted on September 2, 2003, as well as respondents'
comment and opposition dated August 25, 2003, and considering that the present petition is still
pending resolution before this Court, We deem it wise to issue a preliminary injunction to further
enjoin and restrain public respondents Provincial Governor and the Sangguniang Panlalawigan
from conducting proceedings in the administrative case against herein petitioner, particularly in
imposing the order of preventive suspension, so as to prevent any injustice and irreparable
injury that might inure to herein petitioner if it is adjudged by this Court that a reversal of the
assailed resolution is warranted.
WHEREFORE, for the foregoing premises, petitioner's prayer for the issuance of a writ of
preliminary injunction is hereby GRANTED. Petitioner is hereby required to post a bond in the
amount of FFTY THOUSAND PESOS (P50,000.00) for the issuance of said writ, as required by
Section 4(b), Rule 58 of the 1997 Rules of Civil Procedure.
SO ORDERED.
23

Petitioners allege that the only issue presented in CA-G.R. SP No. 78247 is the validity of the
reinstatement of the preventive suspension order issued against Mayor Vargas as embodied in
the Resolution dated 8 July 2003 of the Office of the President. According to petitioners, the
Court of Appeals therefore acted arbitrarily and in grave abuse of discretion amounting to lack
or excess of jurisdiction in directing the Sangguniang Panlalawigan to cease and desist from
conducting proceedings in Administrative Case No. 02-S-2003.
Petitioners' contention is without merit. Two of the issues raised by Mayor Vargas in her petition
to the Court of Appeals pertain to the proceedings in Administrative Case No. 02-S-2003, to wit:
(1) whether the civil case filed by Mayor Vargas before the Cabanatuan RTC for annulment of
falsified minutes of session and appropriation ordinance with damages is a prejudicial question
which warrants the suspension of the proceedings in the administrative case, and (2) whether
the Sangguniang Panlalawigan has jurisdiction to hear the administrative case filed against
Mayor Vargas, when the relief sought is her removal from office.
24

t is, therefore, apparent that the jurisdiction of the Sangguniang Panlalawigan in the
administrative case is an issue in the certiorari case filed in the Court of Appeals. Mayor Vargas
is questioning the propriety of the proceedings of the Sangguniang Panlalawigan despite the
alleged prejudicial question in the civil case. Likewise, Mayor Vargas alleges that
the Sangguniang Panlalawigan is bereft of jurisdiction over the administrative case which seeks
her removal from office since under Section 60 of the Local Government Code, only the proper
court may order the dismissal from public office of an elective local official.
25

We find no grave abuse of discretion on the part of the Court of Appeals in issuing the
Resolution dated 13 October 2003.
WHEREFORE, we DISMISS the petition for lack of merit, and DENY the prayer for the issuance
of a temporary restraining order or writ of preliminary injunction.
SO ORDERED.

RepubIic of the PhiIippines
Supreme Court
ManiIa


SECOND DIVISION


ARTURO C. CABARON and BRIGIDA
CABARON,
Petitioners,



- versus -




PEOPLE OF THEPHILIPPINES and
SANDIGANBAYAN,
Respondents.
G.R. No. 16981

Present:


*
CORONA, J.,
**
CARPO-MORALES,
Acting Chairperson,
BRON,
DEL CASTLLO, and
ABAD, JJ.


Promulgated:


October 5, 2009

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



R E S O L U T I O N

BRION, J.:


For our review is the petition
[1]
filed by petitioners Arturo C. Cabaron and Brigida
Cabaron assailing the decision
[2]
and resolution
[3]
of the Sandiganbayan dated October 15,
2002 and January 23, 2003, respectively, in Criminal Case No. 24153. The challenged decision
found the petitioners guilty beyond reasonable doubt of violation of Section 7(d) of Republic Act
No. 6713 (R.A. o. 6713), otherwise known as the Code of Conduct and Ethical Standards for
Public Officials and Employees. The assailed resolution denied the petitioners' motion for
reconsideration but modified the imposed penalties.

ANTECEDENT FACTS

The case traces its roots to the complaint for grave threats, extortion, bribery, dereliction
of duty, violation of Republic Act No. 3019 (the Anti-Graft and Corrupt Practices Act) and
violation of R.A. No. 6713 filed by Richter G. Pacifico (Pacifico) before the Deputy Ombudsman
(Visayas) against the petitioners, docketed as OMB-VS-CRM-96-1213.

The Deputy Ombudsman for the Visayas, in his resolution
[4]
dated June 27, 1997,
recommended the filing of an nformation for violation of Section 7(d) of R.A. No. 6713 against
the petitioners. The Ombudsman approved the resolution on September 5, 1997.
[5]
The
nformation subsequently filed with the Sandiganbayan for violation of Section 7(d) of R.A. No.
6713 states:

That on or about the 7
th
day of October 1996, at about 2:30 o'clock in the
afternoon, and for sometime subsequent thereto, at Cebu City, Philippines, and
within the jurisdiction of this Honorable Court, above- named accused ARTURO
C. CABARON, a public officer, being an Assistant Provincial Prosecutor of Cebu
in such capacity and committing the offense in relation to office, taking advantage
of his public functions, conniving, confederating and mutually helping with
accused BRGDA Y. CABARON, his wife and a private individual, with deliberate
intent, with intent of gain and evident bad faith, did then and there willfully,
unlawfully and feloniously solicit/demand from one Richter G. Pacifico, mother of
Abraham Pacifico, Jr., who have pending cases before the Office of the
Provincial Prosecutor for preliminary investigation the amount of FFTY
THOUSAND (P50,000.00) PESOS, Philippine Currency in consideration for the
consolidation and handling by him of the case entitled "Ohyeen Alesna vs.
Abraham Pacifico, Jr., for Rape (S No. 96-11651), which is assigned to
Provincial Prosecutor Rodolfo Go, with another criminal case entitled "Abraham
Pacifico, Jr. vs. Alvin Alesna, for Frustrated Murder, which is handled by
accused Arturo C. Cabaron, and the giving of a lawyer to defend Abraham
Pacifico, Jr. who bears similar family name with the Provincial Prosecutor of
Cebu, in order that Abraham Pacifico, Jr. can get a favorable Resolution in the
above-mentioned cases, thus, accused in the course of his official functions
solicited/demanded anything of monetary value from litigants, which act is
prohibited under Sec. 7(d) of R.A. 6713, "The Code of Conduct and Ethical
Standards for Public Officials and Employees, to the detriment of public service
and interest.

CONTRARY TO LAW.
[6]



The Sandiganbayan issued warrants of arrest against the petitioners on September 16,
1997. The petitioners voluntarily surrendered to the Sandiganbayan onOctober 3, 1997 and filed
a motion for reconsideration/reinvestigation
[7]
alleging, among others, that the Ombudsman's
findings were based on a false assumption of fact. The Office of the Special Prosecutor
recommended the withdrawal of the nformation and the dismissal of the case in its
order
[8]
of December 15, 1997. The Ombudsman, however, disapproved this recommendation
and directed the petitioners' prosecution.
[9]


The petitioners were duly arraigned and pleaded "not guilty to the charge laid.
[10]
Trial
on the merits thereafter followed. Meanwhile, the prosecution filed onOctober 29, 1998, filed a
motion to suspend accused pendente lite.
[11]
The Sandiganbayan denied this motion in its
resolution
[12]
dated June 14, 2000.

The Sandiganbayan convicted the petitioners of the crime charged in its decision
of October 15, 2002 as follows:

WHEREFORE, this Court finds accused ARTURO C. CABARON and
BRGDA CABARON GULTY beyond reasonable doubt, of the crime of Violation
of Sec. 7(d) R.A. 6713, hereby sentences both accused to each suffer an
imprisonment for TWO (2) YEARS and ONE (1) DAY, and to pay the costs.
Likewise, both accused are solidarily liable to Richter Pacifico in the amount of
P30,000 as moral damages.

SO ORDERED.
[13]


The petitioners moved to reconsider this decision, but the Sandiganbayan denied their
motion in its resolution dated January 23, 2003. The Sandiganbayan, however, applied the
ndeterminate Sentence Law and modified the dispositive portion of its decision as follows:

HEREFORE, this Court finds accused ARTURO C. CABARON and
BRGDA Y. CABARON GULTY beyond reasonable doubt of the crime of
violation of Sec. 7(d), R.A. 6713, hereby sentences both accused to each suffer
the indeterminate penalty of ONE (1) YEAR AS MNMUM to TWO (2) YEARS
AND ONE (1) DAY AS MAXMUM, and to pay the costs. Likewise, both accused
are solidarily liable to Richter Pacifico in the amount of P30,000.00 as moral
damages.

SO ORDERED.
[14]
[Emphasis and underscoring in the original]


Petitioners filed a petition for review on certiorari before this Court, alleging, among
others, that the Sandiganbayan erred

1. in overlooking the fact that the case was merely a harassment case instigated by
Atty. Valencia;

2. in relying on the testimonies of Pacifico and Editha Baylon (Editha); and

3. in not giving weight to the testimonies of defense witnesses Russo and Zoe.

This Court's Third Division, in a resoIution
[15]
dated ApriI 7, 2003, denied this
petition for raising factual issues and for faiIing to show that the Sandiganbayan
committed reversibIe error in its decision.

The petitioners moved to reconsider this resolution.
[16]
This Court reinstated the petition
for review on certiorari in its resolution
[17]
dated July 7, 2003.

THE COURT'S RULING

We deny the petition for raising pure questions of fact.

OnIy questions of Iaw shouId be
raised in a RuIe 4 petition


t is settled that the appellate jurisdiction of the Supreme Court over decisions and final
orders of the Sandiganbayan is limited only to questions of law; it does not review the factual
findings of the Sandiganbayan which, as a rule, are conclusive upon the Court.
[18]


A question of law exists when there is doubt or controversy as to what the law is on a
certain state of facts. On the other hand, a question of fact exists when the doubt or
controversy arises as to the truth or falsity of the alleged facts. The resolution of a question of
fact necessarily involves a calibration of the evidence, the credibility of the witnesses, the
existence and the relevance of surrounding circumstances, and the probability of specific
situations.
[19]


Simple as it may seem, determining the true nature and extent of the distinction is not
always easy. n a case involving a question of law, the resolution of the issue must rest solely
on what the law provides for a given set of facts drawn from the evidence presented. Once it is
clear that the issue invites a review of theprobative value of the evidence presented, the
question posed is one of fact. f the query requires a re-evaIuation of the credibiIity of
witnesses, or the existence or relevance of surrounding circumstances and their relation to
each other, the issue in that query is factual.
[20]


n the present case, the petitioners seek a review by this Court of the factual findings of
the Sandiganbayan, which essentially involve the credibility of the witnesses and the probative
weight of their testimonies. The question regarding the credibility of witnesses is obviously one
of fact on which the Sandiganbayan had already passed upon in its decision and resolution
dated October 15, 2002 and January 23, 2003, respectively.

The Sandiganbayan in its October 15, 2002 Decision gave full probative value to the
testimonies of the prosecution witnesses, Pacifico and Editha. t held that the testimony of
Pacifico narrating how the petitioners demanded money from him was corroborated on material
points by Editha. t gave no credit to the attempt of the defense to impugn the credibility of
Pacifico and Editha, and ruled that the inconsistencies in their testimonies refer to trivial and
insignificant matters that do not affect at all the conclusion reached.

The Sandiganbayan also held that the testimonies of the defense witnesses were
unreliable and not in accord with the natural course of things. t likewise gave no credence to
the defense's theory that Atty. Valencia instigated Pacifico's complaint against the petitioners.

The Sandiganbayan reiterated its conclusions regarding the credibility of witnesses in its
resolution dated January 23, 2003 when it said:

The defense tried to thrust upon this court that the testimonies of the
prosecution witnesses are incredible as the same were tainted, impelled as they
are and used by Atty. Valencia as "willing tools in his vendetta against accused
prosecutor Cabaron.

This imputation of sinister motive upon the prosecution witnesses is lame
and apparently made to save themselves from prosecution. t is worthy to note
that although they alleged improper motive on the part of the prosecution
witnesses, accused-movants failed to substantiate the same by clear and
convincing evidence. n the absence of substantial evidence showing the
improper motive so attributed to the prosecution witnesses, the logical conclusion
is that no such improper motive exists, and their testimony is therefore worthy of
full faith and credence.

Furthermore, in light of the categorical testimonies of the prosecution
witnesses showing the accused-movants Cabarons' accountability, their bare
denial must fail. As between a categorical testimony that rings of truth on one
hand and a bare denial on the other, the former generally prevails. This is so
because denial, if unsubstantiated by clear and convincing evidence, is a
negative and self-serving evidence which cannot be accorded greater weight
than the testimony of credible witnesses who testify on affirmative matters.

x x x x
[21]


As the tribunal with the full opportunity to observe firsthand the demeanor and
deportment of the witnesses, the Sandiganbayan's findings that the witnesses for the
prosecution are to be believed as against those of the defense are entitled to great weight. t
may not be amiss to reiterate that on the issue of credibility of witnesses, appellate courts will
not disturb the findings arrived at by the trial courts the tribunals in a better position to rate the
credibility of witnesses after hearing them and observing their deportment and manner of
testifying during the trial; it is not for this Court to review again the evidence already considered
in the proceedings below. This rule stands absent any showing that facts and circumstances of
weight and value have been overlooked, misinterpreted or misapplied by the lower court that, if
considered, would affect the result or outcome of the case.
[22]
The Sandiganbayan rulings The
Sandiganbayan rulings in this case suffer no such infirmities, notwithstanding the efforts of the
petitioners to create a contrary impression.

As we explained in Tayaban v. People:
[23]


[T]he assessment of the credibility of a witness is primarily the function of
a trial court, which had the benefit of observing firsthand the demeanor or
deportment of the witness. t is well-settled that this Court will not reverse the trial
court's assessment of the credibility of witnesses in the absence of arbitrariness,
abuse of discretion or palpable error. t is within the discretion of the
Sandiganbayan to weigh the evidence presented by the parties, as well as to
accord full faith to those it regards as credible and reject those it considers
perjurious or fabricated. Moreover, the settled rule is that absent any evidence
showing a reason or motive for prosecution witnesses to perjure their
testimonies, the logical conclusion is that no improper motive exists, and that
their testimonies are worthy of full faith and credit.


HEREFORE, premises considered, we hereby DENY the petition.

SO ORDERED.

THIRD DIVISION

G.R. No. 170626, March 03, 2008]

THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS,
MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA VISCAYA represented by
BARANGAY KAGAAD JOSE CENEN SANTOS, MARIO BACUD, ALTER FRANCISCO,
ROSITA SEBASTIAN, LAURETA CABAUATAN, CECILIA ALINDAYU and MELY
SIMANGAN, Petitioners, vs. PUNONG BARANGAY SEVERINO MARTINEZ, Respondent.

D E C I S I O N

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. n 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
2004 for 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 MartinezCs 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 FOREGONG considered come AUGUST 8, 2005, respondent SEVERNO D. MARTNEZ
is hereby directed NOT to ASSUME and DSCHARGE the functions of the Office of the Punong
Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for complainant
JOSE CENEN SANTOS to CONTNUE assuming and discharging the functions of the said
office in ACTNG CAPACTY 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 njunction 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. t maintained that the proper courts, and
not the petitioner, are empowered to remove an elective local official from office, in accordance
with Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan
removing Martinez from service is void. As a consequence, Mayor Bagasao cannot prevent
Martinez from assuming his office on the basis of a void order. The trial court further ruled that
Martinez properly availed himself of the remedy of Special Civil Action, where the order assailed
was a patent nullity.
[12]


On 10 November 2005, petitioner filed a Motion for Reconsideration
[13]
of the trial courtCs
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 MartinezCs 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.CAn 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 just add the
following thought: It seems to me that instead of identifying onIy the proper regionaI triaI
court or the Sandiganbayan, and since we know that in the case of a regionaI triaI court,
particuIarIy, a case may be appeaIed or may be the subject of an injunction, in the
framing of this Iater on, I wouId Iike to suggest that we consider repIacing the phrase
CPROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYANC simpIy by
CCOURTS.C Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang
Sandiganbayan.

Senator Pimentel. CoOR THE PROPER COURT.C

Senator Saguisag. CoOR THE PROPER COURT.C

Senator Pimentel. Thank you. We are willing to accept that now, Mr. President.

Senator Saguisag. t is to be incorporated in the phraseology that we will craft to capture the
other ideas that have been elevated. (Emphasis provided.)
n 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. t further invalidated Article 125, Rule XX of the Rules and Regulations
mplementing 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
Codisciplining authorityC 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. t 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. n Pablico v.
'illapando,
[19]
the court declared that:
t 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 XX, of the Rules
and Regulations mplementing the Local Government Code, insofar as it vests power on the
Codisciplining authorityC 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 wiII
must not be put to naught by the caprice or partisanship of the discipIining
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 petitionerCs 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. t establishes the
authority of the courts to determine in an appropriate action the validity of acts of the political
departments. t speaks of judicial prerogative in terms of duty.
[21]
Paragraph 2, Section 1, Article
V 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 Iack or excess of jurisdiction on the
part of any branch or instrumentaIity 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.
f, indeed, the Sangguniang Bayan had no power to remove Martinez from office, then Martinez
should have sought recourse from the Sangguniang Panlalawigan. This Court upholds the ruling
of the trial court.

The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate
administrative authorities in the resolution of a controversy falling under their jurisdiction before
the same may be elevated to the courts of justice for review. Non-observance of the doctrine
results in lack of a cause of action, which is one of the grounds allowed by the Rules of Court for
the dismissal of the complaint.
[22]


The doctrine of exhaustion of administrative remedies, which is based on sound public policy
and practical consideration, is not inflexible. There are instances when it may be dispensed with
and judicial action may be validly resorted to immediately. Among these exceptions are: 1)
where there is estoppel on the part of the party invoking the doctrine; 2) where the chaIIenged
administrative act is patentIy iIIegaI, amounting to Iack 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; ) where
the question raised is pureIy IegaI and wiII uItimateIy have to be decided by the courts of
justice; 6) where judiciaI 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
warrantoproceedings.
[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.

n 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.

n 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]


n 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]
n MartinezCs 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 VIE 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.


FIRST DIVISION

PRESIDENTIAL AD HOC FACT- FINDING COMMITTEE ON BEHEST
LOANS, represented by
MAGDANGAL B. ELMA, PCGG CHAIRMAN AND ORLANDO C.
SALVADOR AS CONSULTANT OF THE TECHNICAL ORKING
GROUP OF THE AD-HOC
COMMITTEE,
Petitioners,



-versus-


HONORABLE ANIANO A. DESIERTO AS OMBUDSMAN, PANFILO O.
DOMINGO, CONRADO S. REYES, ENRIQUE M. HERBOZA,
MOHAMMAD ALI DIMAPORO, ABDULLAH DIMAPORO AND AMER
DIANALAN,
Respondents.
G.R. No. 1371


Present:
CORONA, C.J.,
Chairper
son
LEONARDO-DE
CASTRO,
PERALTA,*
DEL CASTLLO,
and
PEREZ, JJ.







Promulgated:

April 13, 2011
x---------------------------------------------------------------------------------------- x

D E C I S I O N




PEREZ, J.:

This petition for review on certiorari
[1]
is one among the 17 cases filed before us by the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans, charging public respondent
Ombudsman Aniano A. Desierto (Ombudsman) for grave abuse of discretion, when, on the
ground of prescription and insufficiency of evidence, he dismissed all of these cases then
pending before him, including this case in OMB-0-97-1718.

The acts

Respondents Mohammad Ali Dimaporo, Abdullah Dimaporo, and Amer Dianalan, were
stockholders and officers of the Mindanao Coconut Oil Mills (MNCOCO), a domestic
corporation established in 1974,
[2]
while respondents Panfilo O. Domingo, Conrado S. Reyes,
Enrique M. Herboza, and Ricardo Sunga, were then officers of the National nvestment and
Development Corporation (NDC).

On 10 May 1976, MNCOCO applied for a Guarantee Loan Accommodation with the
NDC for the amount of approximately P30,400,000.00, which the NDC's Board of Directors
approved on 23 June 1976.

The guarantee loan was, however, both undercapitalized and under-collateralized
because MNCOCO's paid capital then was only P7,000,000.00 and its assets worth
is P7,000,000.00.
This notwithstanding, MNCOCO further obtained additional Guarantee Loan
Accommodations from NDC in the amount of P13,647,600.00
andP7,000,000.00,
[3]
respectively.

When MNCOCO's mortgage liens were about to be foreclosed by the government
banks due its outstanding obligations, Eduardo Cojuangco issued a memorandum dated 18 July
1983, bearing the late President Ferdinand E. Marcos' (President Marcos) marginal note,
disallowing the foreclosure of MNCOCO's properties.
[4]
The government banks were not able to
recover any amount from MNCOCO and President Marcos' marginal note was construed by the
NDC to have effectively released MNCOCO, including its owners, from all of its financial
liabilities.
[5]


The above mentioned transactions, were, however, discovered only in 1992 after then
President Fidel V. Ramos (President Ramos), in an effort to recover the ill-gotten wealth of the
late President Marcos, his family, and cronies, issued Administrative Order No. 13
[6]
creating the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans (the Committee), with the
Chairman of the Philippine Commission on Good Government (PCGG) as the Committee's
head. The Committee was directed, inter alia, to inventory all behest loans, and identify the
lenders and borrowers, including the principal officers and stockholders of the borrowing firms,
as well as the persons responsible for the granting of loans or who influenced the grant
thereof.
[7]
Subsequently, then President Ramos issued Memorandum Order No. 61
[8]
outlining
the criteria which may be utilized as a frame of reference in determining a behest loan, viz:

a. t is under-collateralized;
b. The borrower corporation is undercapitalized;
c. Direct or indirect endorsement by high government officials like
presence of marginal note;
d. Stockholders, officers or agents of the borrower corporation are
identified as cronies;
e. Deviation of use of loan proceeds from the purpose intended;
f. Use of corporate layering;
g. Non-feasibility of the project for which financing is being sought;
h. Extraordinary speed in which the loan release was made.

The Committee found that twenty-one (21) corporations, including MNCOCO, obtained
behest loans. t claimed that the fact that MNCOCO was under-collateralized and
undercapitalized; that its officers were identified as cronies; that the late President Marcos had
marginal note, effectively waiving the government's right to foreclose MNCOCO's mortgage
liens; and, that the Guarantee Loan Accommodation were approved in an extraordinary speed
of one month, bore badges of behest loans.

Subsequently, the Committee filed with the Ombudsman a sworn complaint against
MNCOCO's Officers and NDC's Board of Directors for violation of Section 3(e) and (g) of
Republic Act No. 3019,
[9]
as amended.
By Resolution dated 9 July 1998, the Ombudsman motu prorio dismissed the complaint
on the grounds that, first, there was insufficient evidence to warrant the indictment of the
persons charged; and, second, the alleged offenses had prescribed.
[10]
The Ombudsman
explained:

Being undercapitalized, standing alone is meaningless. The approval of
the loans/guarantees was still based on sound lending practice, otherwise,
MNCOCO would have been disqualified from obtaining the same. f MNCOCO's
equity was more than the amount of the loans, there was no need for it to obtain
the latter.

Anent the claim that Mohammad Ali Dimaporo was a crony of the late
President Marcos, no evidence was adduced to prove the same, hence, remains
a bare allegation. x x x.

On the issue that the notation by President Marcos in the Memorandum
of July 18, 1983 is a behest order, suffice it to state that these marginal notes, if
they meant endorsement as defined under Memorandum Order No. 61,
endorsed the recommendation regarding the mortgage liens of the government
banks of the Mothballed Coconut Oil Mills and not the approval/grant of the
loans/guarantees in 1976. It is in effect approved the reIease of the IiabiIities
of the former owners of coconut oiI miIIs, one of which was MINCOCO, but
not the acquisition of the said loans/guarantees.

The take over of MNCOCO by UNCOM without the consent of NDC is
not a characteristic of a behest loan. It is a mere vioIation of procedures that
does not warrant a criminaI action.

x x x x

For the perpetration of the acts being complained of, the respondents are
charged of violations of Sections 3(e) and (g) of Republic Act No. 3019. The
instant case however will no longer prosper for the offenses have
already prescribed.

Be it remembered that MNCOCO applied for and was granted
loans/guarantees way back in 1976. Thus, these acts are governed by the law in
force at the time of their commission, which is the old R.A. No. 3019 before its
amendment by atas Pambansa lg. 195 in March 1982. Offenses perpetrated
prior to the enactment of this latter law prescribed ten (10) years later. And since
the case was filed against the herein respondents only in September 1997, the
offenses have long prescribed in 1986.
Prescription commenced to run in 1976 when the assailed transaction
happened. x x x.
[11]



Hence, this petition for review on certiorari under Rule 45 of the Rules of Court.
[12]


The petitioner argued that the right of the State to recover behest loans as ill-gotten
wealth is imprescriptible under Section 15, Article X of the 1987 Constitution;
[13]
and, assuming
that the period to file criminal charges herefore is subject to prescription, the prescriptive period
should be counted from the time of discovery of behest loans or sometime in 1992 when the
Committee was constituted.
[14]


The Ombudsman, in his Comment, countered that his office has the discretionary power
during preliminary investigation to determine the sufficiency of evidence for indictment;
[15]
that it
is beyond the ambit of the Court to review this exercise of discretion;
[16]
that Section 15, Article
X of the 1987 Constitution applies only to civil suits and not to criminal proceedings;
[17]
and, that
the crime under which the respondents herein were charged had already prescribed.
[18]


Private respondents Panfilo O. Domingo and Enrique M. Herboza, filed their respective
Comments mainly reiterating the Ombudsman's contentions. The other respondents did not file
their Comments, and, thus, considered to have waived their chance thereto.
The Court's Ruling

The remedy from an adverse resolution of the Ombudsman is a petition
for certiorari under Rule 65 of the Rules of Court; what was filed with the Court, however, was a
petition for review on certiorari under Rule 45. Nevertheless, the Court will treat this petition as
one filed under Rule 65 since a reading of its contents shows that the Committee imputes grave
abuse of discretion to the Ombudsman for dismissing the complaint.
[19]
This was how we also
treated the previous cases marred by the same procedural lapse, the latest of which is the
2009 Presidential Ad-Hoc Fact Finding Committee on ehest Loans v. Desierto (G.R. No.
135703).
[20]


At the core of the controversy is the Ombudsman's Resolution holding that prescription
had already set-in effectively barring the institution of charges against the private
respondents. The Ombudsman claimed that the alleged behest loans, transpired in
1976,
[21]
and, thus, the complaint filed after more than two decades from the commission thereof
or on 8 October 1997, was well beyond the 10-year prescriptive period provided for under the
old Republic Act No. 3019.
[22]


n resolving the issue of prescription, the following shall be considered: (1) the period of
prescription for the offense charged; (2) the time the period of prescription started to run; and (3)
the time the prescriptive period was interrupted.
[23]


At the outset, the provision found in Section 15, Article X of the 1987 Constitution that
"the right of the State to recover properties unlawfully acquired by public officials or employees,
from them or from their nominees or transferees, shaII not be barred by prescription, laches
or estoppels, has already been settled inPresidential Ad Hoc Fact-Finding Committee on
ehest Loans v. Desierto (G.R. No. 130140),
[24]
where the Court held that the above cited
constitutional provision "applies only to civil actions for recovery of ill-gotten wealth, and not to
criminal cases.
[25]


The period of prescription for the crime
charged in this petition, committed in
1976 and prior to the amendment of
Republic ct No. 3019, is ten (10) years.

Section 11
[26]
of Republic Act No. 3019 as amended by atas Pambansa lg. 195,
provides that the offenses committed under Republic Act No. 3019 shall prescribe in fifteen (15)
years; prior to this amendment, however, under the old Republic Act No. 3019, this prescriptive
period was only ten (10) years. n People v. Pacificador,
[27]
the Court held that the longer
prescriptive period of 15-years does not apply in crimes committed prior to the effectivity
of atas Pambansa lg.195, which was approved on 16 March 1982, because, not being
favorable to the accused, it cannot be given retroactive effect. Considering that the alleged
crime was committed in 1976, and in line with the Court's ruling in Pacificador, the prescription
period should be ten (10) years.

!rescription of crime shall begin to run
from the day of its commission, and if
the same be not known at the time, from
the discovery thereof and the institution
of judicial proceedings for its
investigation and punishment.

While we sustain the Ombudsman's contention that the prescriptive period for the crime
charged herein is 10 years and not 15 years, we are not persuaded that in this specific case, the
prescriptive period began to run in 1976, when the loans were transacted.

The time as to when the prescriptive period starts to run for crimes committed under
Republic Act No. 3019, a special law, is covered by Act No. 3326,
[28]
Section 2 of which provides
that:

Section 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its investigation
and punishment.

The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for
reasons not constituting double jeopardy.

Generally, the prescriptive period shall commence to run on the day the crime is
committed. That an aggrieved person "entitled to an action has no knowledge of his right to sue
or of the facts out of which his right arises, does not prevent the running of the prescriptive
period.
[29]
An exception to this rule is the "blameless ignorance" doctrine, incorporated in
Section 2 of Act No. 3326. Under this doctrine, "the statute of limitations runs only upon
discovery of the fact of the invasion of a right which will support a cause of action. n other
words, the courts would decline to apply the statute of limitations where the pIaintiff does not
know or has no reasonabIe means of knowing the existence of a cause of action."
[30]
t
was in this accord that the Court confronted the question on the running of the prescriptive
period in People v. Duque
[31]
which became the cornerstone of our 1999 Decision in Presidential
Ad Hoc Fact-Finding Committee on ehest Loans v. Desierto (G.R. No. 130149),
[32]
and the
subsequent cases
[33]
which Ombudsman Desierto dismissed, emphatically, on the ground of
prescription too. Thus, we held in a catena of cases,
[34]
that if the violation of the special law was
not known at the time of its commission, the prescription begins to run only from the discovery
thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.

Corollary, it is safe to conclude that the prescriptive period for the crime which is the
subject herein, commenced from the date of its discovery in 1992 after the Committee made an
exhaustive investigation.
[35]
When the complaint was filed in 1997, only five years have elapsed,
and, hence, prescription has not yet set in. Therationale for this was succinctly discussed in the
1999 Presidential Ad Hoc Fact-Finding Committee on ehest Loans,
[36]
that "it was well-high
impossible for the State, the aggrieved party, to have known these crimes committed prior to the
1986 EDSA Revolution, because of the alleged connivance and conspiracy among involved
public officials and the beneficiaries of the loans.
[37]
n yet another pronouncement, in the
2001 Presidential Ad Hoc Fact-Finding Committee on ehest Loans v. Desierto (G.R. No.
130817),
[38]
the Court held that during the Marcos regime, no person would have dared to
question the legality of these transactions.

hile the Ombudsman has the full
discretion to determine whether a
criminal case is to be filed, the Court is
not precluded from reviewing the
Ombudsman's action when there is a
grave abuse of discretion.

True, the Ombudsman is a constitutionally created body with constitutionally mandated
independence. Despite this, however, the Ombudsman comes within the purview of the Court's
power of judicial review
[39]
a peculiar concept of Philippine Ombudsman, embodied in Article
V, Section 1 of the 1987 Constitution
[40]
which serves as a safety net against its capricious
and arbitrary acts.
[41]
Thus, in Garcia-Rueda v. Pascasio,
[42]
the Court held that "while the
Ombudsman has the full discretion to determine whether or not a criminal case is to be filed, the
Court is not precluded from reviewing the Ombudsman's action when there is grave abuse of
discretion.
[43]
This is because, "while the Ombudsman enjoys, as it must, complete
independence, it cannot and must not lose track of the law, which it is bound to uphold and
obey.
[44]


After reviewing the case's records, the Court finds that the present petition calls for the
exercise of its power of judicial review.

Private respondents are charged with violation of Section 3(e) and (g) of Republic Act
No. 3019 which states:

Section 3. Corrupt practices of public officers. - n 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:

x x x x

(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 of offices or government corporations charged
with the grant of licenses or permits or other concessions.

x x x x

(g) Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby.


From the 1999 landmark case of Presidential Ad Hoc Fact-Finding Committee on ehest
Loans v. Desierto (G.R. No. 130140),
[45]
to the 2008 Presidential Ad Hoc Fact-Finding
Committee on ehest Loans v. Tabasondra (G.R. No. 133756),
[46]
and to the 2009 Presidential
Ad Hoc Fact-Finding Committee on ehest Loans v. Desierto (G.R. No. 135703),
[47]
the same
issues confronted the Court as the one presented in the present petition, in that the
Ombudsman similarly dismissed these cases not only on the ground of prescription but also for
insufficiency of evidence.
[48]


nterestingly, the facts in Tabasondra
[49]
are squarely on all fours as the present
case. Tabasondra,
[50]
involved Coco-Complex Philippines, nc., (CCP), a domestic corporation
primarily incorporated for the manufacture of coconut oil.
[51]
CCP applied for Guarantee Loan
Accommodation thru the National nvestment Development Corporation amounting
to P9,277,080.00, allegedly for the purchase of an oil mill to be supplied by Krupp Germany.
The NDC Board approved the loan in 1969,
[52]
notwithstanding the fact that CCP was
undercapitalized with only P2,111,000.00 paid-up capital,
[53]
and under-collateralized with
only P495,300.00 assets.
[54]
Thus, with the NDC's Guarantee Loan Accommodation, the
Philippine National Bank (PNB) granted the loan. Still, with NDC's guarantee, CCP obtained
additional loans from PNB in 1972, which, as of 1992, ballooned to P205,889,545.76.

When the Committee filed criminal complaints against the CCP's Officers and PNB's
Board of Directors for violation of Section 3(e) and (g) of Republic Act No. 3019, the
Ombudsman dismissed the complaint on the ground of prescription. For this, the Committee
charged the Ombudsman for grave abuse of discretion, but pending its resolution before us, the
Ombudsman, taking cue from the Court's 1999 ruling in G.R. No. 130140,
[55]
motu
proprio reinvestigated the complaint it earlier dismissed (and was still pending before us), only
to dismiss it anew, in a Resolution dated 16 October 2000, opining that NDC's Board of
Directors, who approved the Ioans in favor of CCPI, shouId have been the ones
indicted.
[56]
Subsequently, the Court dismissed Tabasondra for being moot and academic.

Similarly, in the present petition, MNCOCO was also granted by NDC a Guarantee
Loan Accommodation amounting initially to P30.4 million pesos, despite its being
undercapitalized and under-collateralized.
[57]


As the Ombudsman admitted, when MNCOCO's mortgage liens were about to be
foreclosed by the government banks, the late President Marcos intervened and through a
marginal note, in connivance with the NDC's officers, waived the liabilities of its owners to the
detriment of the government.
[58]
t behooves the Court that while the Ombudsman admitted this
fact, it saw nothing wrong in President Marcos' intervention, and the involvement therein of the
NDC's officers. This intervention alone, by no less than the highest official of the land, waiving
a multi-million peso liability of a private corporation, should have alarmed the Ombudsman.

t surprises us that while the Ombudsman dismissed Tabasondra for not impleading
therein the NDC's Board of Directors, now that they (NDC's Board of Directors) have been
impleaded, the Ombudsman still dismissed the complaint, allegedly for insufficiency of
evidence.
[59]


Applying mutatis mutandis G.R. No. 133756
[60]
in this petition, it is apparent that there
can be liability for violation of Section 3(e) and (g) of Republic Act No. 3019.
Violation of Section 3(e)
[61]
of Republic Act No. 3019 requires that there be injury caused
by giving unwarranted benefits, advantages or preferences to private parties who conspire with
public officers. n contrast, Section 3(g)
[62]
does not require the giving of unwarranted benefits,
advantages or preferences to private parties, its core element being the engagement in a
transaction or contract that is grossly and manifestly disadvantageous to the government.

The waiver of MNCOCO's multi-peso loan should have been enough basis in finding
that probably Section 3(e) of Republic Act No. 3019 was violated and the fact that NDC
extended a loan guarantee to MNCOCO, despite its being undercapitalized and under-
collateralized, should have also been enough ground in finding probable cause for violation of
Section 3(g) of the above-cited law.

More importantly, the finding of the Committee that MNCOCO obtained behest loans
because of the following circumstances: MINCOCO was under-coIIateraIized and
undercapitaIized; its officers were identified as cronies; President Marcos had marginaI
note, effectiveIy waiving the government's right to forecIose MINCOCO's mortgage Iiens;
and, NIDC approved MINCOCO's Guarantee Loan Accommodation in an extraordinary
speed of one month, shouId have been accorded a proper modicum of respect by the
Ombudsman.

Considering the membership of the Committee representatives from the
Department of Finance, The Philippine National Bank, the Asset Privatization
Trust, the Philippine Export and Foreign Loan Guarantee Corporation and even
the Development Bank of the Philippines its recommendation should be given
great weight. No doubt, the members of the Committee are experts in the field of
banking. On account of their special knowledge and expertise, they are in a
better position to determine whether standard banking practices are followed in
the approval of the loan/guarantee or what would generally constitute as
adequate security for a given loan.
[63]


The duty of the Ombudsman in the conduct of a preliminary investigation is to establish
whether there exists probable cause to file information in court against the accused.
[64]
A finding
of probable cause needs only to rest on evidence showing that more likely than not, the
accused committed the crime.
[65]
Considering the quantum of evidence needed to support a
finding of probable cause, the Court holds that the Ombudsman gravely abused its discretion
when it dismissed the complaint against herein respondents.

Preliminary investigation is not the occasion for the full and exhaustive display of the
parties' evidence.
[66]
t is for the presentation of such evidence only as may engender a well
founded belief that an offense has been committed and that the accused is probably guilty
thereof.
[67]
The validity and merits of a party's accusation or defense, as well as admissibility of
testimonies and evidence, are better ventilated during the trial proper.
[68]


n conclusion, the offenses ascribed to respondents "involve behest loans which bled
white the economy of the country, one of the excesses of the authoritarian regime that led to the
EDSA revolution, a serious evil that the 1987 Constitution aimed to extirpate.
[69]
t involves
nothing less than the interest of the people whose transgressed rights are supposed to be
vindicated by their protector the Ombudsman.
[70]
As protector of the people, the Ombudsman
should be pro-active in making use of its vast arsenal of powers to "bring the lamp of scrutiny to
otherwise dark places even over the resistance of those who would draw the blinds.
[71]


The criminal liability of Conrado S. Reyes is hereby extinguished in accordance with
Article 89(1)
[72]
of the Revised Penal Code as confirmed by his death certificate.
[73]
With respect
to respondents Panfilo O. Domingo and Mohammad Ali Dimaporo, the facts of their deaths have
to be confirmed to determine the application to them of the same provision.

HEREFORE, the petition is GRANTED. The Ombudsman is hereby ORDERED to:

1. DISMISS the complaint against deceased respondent Conrado S. Reyes;

2. REQUIRE the counsels of respondents Panfilo O. Domingo and Mohammad Ali
Dimaporo to submit proof of their deaths; and
3. FILE with the Sandiganbayan the necessary nformation against respondents
Abdullah Dimaporo, Amer Dianalan, Enrique M. Herboza, and Ricardo Sunga.

SO ORDERED.



EN BANC

G.R. No. 1773, September 11, 2008]

OFFICE OF THE OMBUDSMAN, PETITIONER, VS. JOEL S. SAMANIEGO,
1]
RESPONDENT.

D E C I S I O N

CORONA, J.:

This is a petition for review under Rule 45 of the Rules of Court assailing the resolutions
[2]
of the
Court of Appeals (CA) dated September 11, 2006 and November 21, 2006 in CA-G.R. SP No.
89999 captioned Joel S. Samaniego v. Commission on Audit, Provincial Auditor's Office of
Albay, Legaspi City, Albay.

The facts follow.

Respondent Joel S. Samaniego was the City Treasurer of Ligao City, Albay. On separate dates,
the Commission on Audit (COA) through its Regional Cluster Director Atty. Francisco R.
Velasco
[3]
filed two administrative complaints against Samaniego, docketed as OMB-L-A-03-
1060-K
[4]
and OMB-L-A-03-1061-K,
[5]
for dishonesty and grave misconduct.

n these administrative complaints, the COA alleged that respondent incurred shortages in his
accountabilities for two separate periods.
[6]
Respondent received letters of demand requiring
him to explain his side and settle his accountabilities.

n his counter-affidavit, respondent averred, among others, that OMB-L-A-03-1060-K was bereft
of factual basis. He likewise averred that the alleged amount of his accountability in OMB-L-A-
03-1061-K was the same amount cited in OMB-L-A-03-1060-K. He also pleaded the defense of
restitution of his alleged accountabilities.

n a joint decision dated April 11, 2005, the Office of the Deputy Ombudsman for Luzon found
respondent liable for grave misconduct
[7]
because he failed to explain his side and settle his
accountabilities in OMB-L-A-03-1060-K. He was meted the penalty of one year suspension from
office. n the same decision, however, OMB-L-A-03-1061-K was dismissed in view of
respondent's restitution of his accountability.
[8]


Via a petition for review on certiorari under Rule 43 with a motion for the issuance of a writ of
preliminary injunction in the CA, respondent assailed the April 11, 2005 joint decision of the
Office of the Ombudsman insofar as it found him liable in OMB-L-A-03-1060-K. This petition
was captioned Joel Samaniego versus Commission on Audit, Provincial Auditor's Office,
Legaspi City, Albay and docketed as CA - G.R. SP No. 89999. His prayer for the issuance of a
writ of preliminary injunction was granted.

Since it was not impleaded as a respondent in CA- G.R. SP No. 89999, the Office of the
Ombudsman filed a motion for intervention and to admit the attached motion to recall the writ of
preliminary injunction. The motions were denied.

The Office of the Ombudsman now claims that the CA erred in denying its right to intervene,
considering that its joint decision was the subject of the appeal. t also asserts that the writ of
preliminary injunction should be recalled.

We rule for the Office of the Ombudsman.
[9]


MANDATE OF THE OFFICE
OF THE OMBUDSMAN

Section 27, Article of the Constitution reads:
The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.
To implement this, the Constitution established the Office of the Ombudsman, composed of the
Ombudsman, one overall deputy and at least one Deputy each for Luzon, Visayas and
Mindanao.
[10]
t was the intention of the Constitution to make the Ombudsman independent.

The purpose of the Office of the Ombudsman is enunciated in Section 12, Article X of the
Constitution:
The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the government,
or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations, and shall, in appropriate cases, notify the complainants of the action taken and the
result thereof.
The Office of the Ombudsman is a unique position in the 1987 Constitution.
[11]
The Ombudsman
and his deputies function essentially as a complaints and action bureau.
[12]
Congress enacted
Republic Act (RA) 6770
[13]
providing broad powers,
[14]
as well as a functional and structural
organization, to the Office of the Ombudsman to enable it to perform its constitutionally-
mandated functions.

RA 6770 states the mandate of the Ombudsman:
SEC. 13. Mandate. - The Ombudsman and his deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to promote efficient service by the
Government to the people.
To aid the Ombudsman in carrying out its tasks, it was vested with disciplinary authority over
government officials.
[15]
The scope of this authority was discussed inOffice of the Ombudsman v.
CA:
[16]

[The Office of the Ombudsman] is vested with "full administrative disciplinary authority" including
the power to "determine the appropriate penalty imposable on erring public officers or
employees as warranted by the evidence, and necessarily, impose the said penalty." Thus, the
provisions in [RA] 6770 taken together reveal the manifest intent of the lawmakers to bestow on
the Office of the Ombudsman fulladministrative disciplinary authority. These provisions cover
the entire gamut of administrative adjudication which entaiIs the authority to, inter alia,
receive compIaints, conduct investigations, hoId hearings in accordance with its ruIes of
procedure, summon witnesses and require the production of documents, pIace under
preventive suspension pubIic officers and empIoyees pending an investigation,
determine the appropriate penaIty imposabIe on erring pubIic officers or empIoyees as
warranted by the evidence and necessariIy, impose the said penaIty.xxx (emphasis
supplied)
Full disciplinary authority is one of the broad powers granted to it by the Constitution and RA
6770. These broad powers, functions and duties are generally categorized into: investigatory
power, prosecutory power, public assistance functions, authority to inquire and obtain
information, and the function to adopt, institute and implement preventive measures.
[17]


Actions of the Ombudsman that do not fall squarely under any of these general headings are
not to be construed outright as illegal. The avowed purpose of preserving public trust and
accountability must be considered. So long as the Ombudsman's actions are reasonably in line
with its official functions and are not contrary to law and the Constitution, they should be upheld.
Defending its decisions in the CA is one such power.

The Ombudsman is expected to be an "activist watchman," not merely a passive onlooker.
[18]
A
statute granting powers to an agency created by the Constitution C such as RA 6770 C
should be liberally construed to advance the objectives for which it was
created.
[19]
n uenaseda v. Flavier,
[20]
we held that any interpretation of RA 6770 that hampers
the work of the Ombudsman should be avoided.

Taking all this into consideration, the Ombudsman is in a league of its own. t is different from
other investigatory and prosecutory agencies of the government because the people under its
jurisdiction are public officials who, through pressure and influence, can quash, delay or dismiss
investigations directed against them.
[21]
ts function is critical because public interest (in the
accountability of public officers and employees) is at stake.

The Ombudsman concept originated in Sweden and other

Scandinavian countries.
[22]
ts original and classic notion was that of an independent and
politically neutral office which merely received and processed the people's complaints against
corrupt and abusive government personnel.
[23]
The Philippine Ombudsman deviated from the
classic model. t retained the characteristic independence and political neutrality but the range
of its functions and powers was enlarged.

Given the foregoing premises, we cannot limit the powers of the Ombudsman if its acts are not
contrary to law or the Constitution.

INTERVENTION BY THE OMBUDSMAN IN
CASES IN HICH ITS DECISION IS ASSAILED
Section 1, Rule 19 of the Rules of Court provides:

Section 1. Who may intervene. - A person who has a legal interest in the matter in litigation, or
in the success of either parties, or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the disposition of the court or of an
officer thereof may, with leave of court be allowed to intervene in the action. xxx
ntervention is a remedy by which a third party, not originally impleaded in the proceedings,
becomes a litigant therein to enable him to protect or preserve a right or interest which may be
affected by such proceeding.
[24]
ts purpose is to settle in one action and by a single judgment
the whole controversy (among) the persons involved.
[25]


ntervention is not an absolute right
[26]
as it can be secured only in accordance with the terms of
the applicable statute or rule. n claiming the right to intervene, the intervenor must comply with
the requirements laid down by Rule 19 of the Rules of Court which provides that the intervenor
must have a legal interest in any of the following:
(a) the matter in controversy;
(b) the success of either of the parties;
(c) against both parties or
(d) be so situated as to be adversely affected by a distribution or other disposition of property
in the disposition of the court or of an officer thereof.
[27]

ntervention must not unduly delay or prejudice the adjudication of rights of the original
parties.
[28]
Moreover, it must be shown that the intervenor's rights may not be fully protected in a
separate proceeding.
[29]


The legal interest must be actual and material, direct and immediate.
[30]
nagsaysay-Labrador
v. CA,
[31]
the interest which entitles a person to intervene in a suit:
[m]ust be on the matter in litigation and of such direct and immediate character that the
intervenor will either gain or lose by the direct legal operation and effect of the judgment. The
words "an interest in the subject" mean a direct interest in the cause of action as pleaded and
which would put the intervenor in a legal position to litigate a fact alleged in the complaint,
without the establishment of which plaintiff could not recover.
The CA denied petitioner's motion for intervention for lack of basis, reasoning that:
n the instant case, the Ombudsman's intervention is not proper considering that, other than its
objection to the issuance of the injunctive writ, no legal interest in the matter subject of litigation
has been alleged by the Ombudsman in the motion for intervention. xxx
We disagree.

The Office of the Ombudsman sufficiently alleged its legal interest in the subject matter of
litigation. Paragraph 2 of its motion for intervention and to admit the attached motion to recall
writ of preliminary injunction averred:
2. As a competent disciplining body, the Ombudsman has the right to seek redress on the
apparently erroneous issuance by this Honorable Court of the Writ of Preliminary njunction
enjoining the implementation of the Ombudsman's Joint Decision imposing upon petitioner the
penalty of suspension for one (1) year, consistent with the doctrine laid down by the Supreme
Court in PNB vs]. Garcia, xxx and CSC vs]. Dacoycoy, xxx; (citations omitted; emphasis in
the original)
n asserting that it was a "competent disciplining body," the Office of the Ombudsman correctly
summed up its legal interest in the matter in controversy. n support of its claim, it invoked its
role as a constitutionally mandated "protector of the people," a disciplinary authority vested with
quasi-judicial function to resolve administrative disciplinary cases against public officials.
[32]
To
hold otherwise would have been tantamount to abdicating its salutary functions as the guardian
of public trust and accountability.
[33]


Moreover, the Office of the Ombudsman had a clear legal interest in the inquiry into whether
respondent committed acts constituting grave misconduct,
[34]
an offense punishable under the
Uniform Rules in Administrative Cases in the Civil Service.
[35]
t was in keeping with its duty to
act as a champion of the people and preserve the integrity of public service
[36]
that petitioner had
to be given the opportunity to act fully within the parameters of its authority.

t is true that under our rule on intervention, the allowance or disallowance of a motion to
intervene is left to the sound discretion of the court
[37]
after a consideration of the appropriate
circumstances.
[38]
However, such discretion is not without limitations.
[39]
One of the limits in the
exercise of such discretion is that it must not be exercised in disregard of law and the
Constitution. The CA should have considered the nature of the Ombudsman's powers as
provided in the Constitution and RA 6770.

Moreover, the rule on intervention is a rule of procedure whose object is to make the powers of
the court fully and completely available for justice, not to hinder or delay it.
[40]


Both the CA
[41]
and respondent likened the Office of the Ombudsman to a judge whose decision
was in question.
[42]
This was a tad too simplistic (or perhaps even rather disdainful) of the
power, duties and functions of the Office of the Ombudsman. The Office of the Ombudsman
cannot be detached, disinterested and neutral specially when defending its decisions. Moreover,
in administrative cases against government personnel, the offense is committed against the
government and public interest. What further proof of a direct constitutional and legal interest in
the accountability of public officers is necessary?

PROPRIETY AND NECESSITY OF INJUNCTION
IN APPEALS OF THE DECISIONS OF THE OMBUDSMAN

The CA anchored its denial of the motion to recall the writ of preliminary injunction on its lack of
authority over the case. (The Office of the Ombudsman's motion for intervention was allegedly
improper). But the Office of the Ombudsman could properly intervene in the appeal filed by
respondent and therefore, the CA could determine whether a recall of the injunctive writ was
proper.

n the interest of justice and practicality, we will rule on the propriety of the issuance of the
injunctive writ.

The applicable provision of law is Section 7, Rule of the Rules of Procedure of the
Ombudsman, as amended:
[43]

Section 7. Finality and execution of decision. - xxx where the penalty imposed is public censure
or reprimand, suspension of not more than one month, or a fine equivalent to one month salary,
the decision shall be final, executory and unappealable. n all other cases, the decision may be
appealed to the Court of Appeals xxx.

An appeal shall not stop the decision from being executory. xxx.
A literal reading of this rule shows that the mere filing of an appeal does not prevent the
decision of the Ombudsman from becoming executory. However, we clarified this rule in Office
of the Ombudsman v. Laja:
[44]

[O]nly orders, directives or decisions of the Office of the Ombudsman in administrative cases
imposing the penalty of public censure, reprimand, or suspension of not more than one month,
or a fine not equivalent to one month salary shall be final and unappealable hence, immediately
executory. In aII other discipIinary cases where the penaIty imposed is other than pubIic
censure, reprimand, or suspension of not more than one month, or a fine not equivaIent
to one month saIary, the Iaw gives the respondent the right to appeaI. In these cases, the
order, directive or decision becomes finaI and executory onIy after the Iapse of the
period to appeaI if no appeaI is perfected, or after the deniaI of the appeaI from the said
order, directive or decision. t is only then that execution shall perforce issue as a matter of
right. The fact that the Ombudsman Act gives parties the right to appeaI from its
decisions shouId generaIIy carry with it the stay of these decisions pending appeaI.
Otherwise, the essential nature of these judgments as being appealable would be rendered
nugatory. (emphasis in the original).
The penalty meted out to respondent was suspension for one year without pay. He filed an
appeal of the Ombudsman's joint decision on time. n his appeal, he included a prayer for the
issuance of a writ of preliminary injunction in order to stay the execution of the decision against
him. Following Office of the Ombudsman v. Laja, we hold that the mere filing by respondent of
an appeal sufficed to stay the execution of the joint decision against him. Respondent's prayer
for the issuance of a writ of preliminary injunction (for purposes of staying the execution of the
decision against him) was therefore a superfluity. The execution of petitioner's joint decision
against respondent should be stayed during the pendency of CA-G.R. SP No. 89999.

HEREFORE, the petition is hereby GRANTED. The resolutions of the Court of Appeals dated
September 11, 2006 and November 21, 2006 are hereby REVERSED and SET
ASIDE. Accordingly, the Court of Appeals is ordered to allow the intervention of the Office of the
Ombudsman in CA-G.R. SP No. 89999. The writ of preliminary injunction is hereby LIFTED as
the execution of the decision in OMB-L-A-03-1060-K was (and still is) stayed by the filing and
pendency of CA-G.R. SP No. 89999.

No costs.

SO ORDERED.