Você está na página 1de 46

G.R. No.

108072 December 12, 1995


HON. JUAN M. HAGAD, in his capacity as
Deputy Ombudsman for the Visayas, petitioner,
vs.
HON. MERCEDES GOZO-DADOLE, Presiding
Judge, Branch XXVIII, Regional Trial Court,
Mandaue City, Mandaue City Mayor ALFREDO
M. OUANO, Mandaue City Vice-Mayor PATERNO
CAETE and Mandaue City Sangguniang
Panlungsod
Member
RAFAEL
MAYOL, respondents.
VITUG, J.:
The determination of whether the Ombudsman under
Republic Act ("R.A.") No. 6770, 1 otherwise known as
the Ombudsman Act of 1989, has been divested of
his authority to conduct administrative investigations
over local elective officials by virtue of the
subsequent enactment of R.A. No. 7160, 2 otherwise
known as the Local Government Code of 1991, is the
pivotal issue before the Court in this petition.
The petition seeks (a) to annul the writ of preliminary
injunction, dated 21 October 1992, issued against
petitioner by respondent trial court and (b) to
prohibit said court from further proceeding with RTC
Case No. MDE-14. 3
Parenthetically, Deputy Ombudsman for the Visayas
Arturo Mojica assumed the office of Juan Hagad, now
resigned, 4 who took the initiative in instituting this
special civil action for certiorari and prohibition.
The controversy stemmed from the filing of criminal
and administrative complaints, on 22 July 1992,
against herein respondents Mayor Alfredo Ouano,
Vice-Mayor Paterno Caete and Sangguniang
Panlungsod Member Rafael Mayol, all public officials
of Mandaue City, by Mandaue City Councilors Magno
B. Dionson and Gaudiosa O. Bercede with the Office
of the Deputy Ombudsman for the Visayas. The
respondents were charged with having violated R.A.
No. 3019, as amended, 5 Articles 170 6 and 171 7 of
the
Revised
Penal
Code;
and
R.A.
No.
6713. 8Councilors Dionson and Bercede averred that
respondent officials, acting in conspiracy, had caused

the alteration and/or falsification of Ordinance No.


018/92 by increasing the allocated appropriation
therein from P3,494,364.57 to P7,000,000.00 without
authority from the Sangguniang Panlungsod of
Mandaue City. The complaints were separately
docketed as Criminal Case No. OMB-VIS-92-391 and
as Administrative Case No. OMB-VIS-ADM-92-015.
A day after the filing of the complaints, or on 23 July
1992, a sworn statement was executed by Mandaue
City Council Secretary, Atty. Amado C. Otarra, Jr., in
support of the accusations against respondent
officials.
The
next
day,
petitioner
ordered
respondents,
including
Acting
Mandaue
City
Treasurer Justo G. Ouano and Mandaue City Budget
Officer Pedro M. Guido, to file their counter-affidavits
within ten (10) days from receipt of the order.
Forthwith, Councilors Dionson and Bercede moved
for the preventive suspension of respondent officials
in the separately docketed administrative case.
Aside from opposing the motion for preventive
suspension, respondent officials, on 05 August 1992,
prayed for the dismissal of the complaint on the
ground that the Ombudsman supposedly was bereft
of jurisdiction to try, hear and decide the
administrative case filed against them since, under
Section 63 of the Local Government Code of 1991,
the power to investigate and impose administrative
sanctions against said local officials, as well as to
effect their preventive suspension, had now been
vested with the Office of the President.
In their opposition, filed on 10 August 1992, Dionson
and Bercede argued that the Local Government Code
of 1991 could not have repealed, abrogated or
otherwise modified the pertinent provisions of the
Constitution granting to the Ombudsman the power
to investigate cases against all public officials and
that, in any case, the power of the Ombudsman to
investigate local officials under the Ombudsman Act
had remained unaffected by the provisions of the
Local Government Code of 1991.
During the hearing on the motion for preventive
suspension, the parties were directed by the Deputy
Ombudsman to file their respective memoranda.

In his memorandum, Mayor Ouano reiterated that,


under Sections 61 and 63 of the Local Government
Code of 1991, the Office of the President, not the
Office of the Ombudsman, could lawfully take
cognizance of administrative complaints against any
elective official of a province, a highly urbanized city
or an independent component city and to impose
disciplinary
sanctions,
including
preventive
suspensions, and that there was nothing in the
provision of the Constitution giving to the Office of
the Ombudsman superior powers than those of the
President over elective officials of local governments.
In an Order, 9 dated 10 September 1992, the Office of
the Deputy Ombudsman denied the motion to
dismiss
and
recommended
the
preventive
suspension of respondent officials, except City
Budget Officer Pedro M. Guido, until the
administrative case would have been finally resolved
by the Ombudsman. 10 Respondent officials were
formally placed under preventive suspension by the
Deputy Ombudsman pursuant to an Order 11 of 21
September 1992.
On 25 September 1992, a petition for prohibition,
with prayer for a writ of preliminary injunction and
temporary restraining order, was filed by respondent
officials with the Regional Trial Court of Mandaue City.
Acting favorably on the pleas of petitioning officials,
respondent Judge issued, on even date, a restraining
order directed at petitioner, enjoining him ". . . from
enforcing and/or implementing the questioned order
of preventive suspension issued in OMB-VIS-ADM-92015."
Petitioner moved to dismiss the petition but it was to
no avail. The court a quo, on 15 October 1992,
denied the motion to dismiss and issued an Order for
the issuance of a writ of preliminary injunction,
holding thusly:
So by following and applying the
well-established rules of statutory
construction that endeavor should
be made to harmonize the
provisions of these two laws in
order that each shall be effective, it
is the finding of this Court that
since the investigatory power of

the Ombudsman is so general,


broad and vague and gives wider
discretion to disciplining authority
to impose administrative sanctions
against a responsible public official
or employee while that of Section
60 of the New Local Government
Code provides for more well
defined and specific grounds upon
which a local elective official can
be subjected to administrative
disciplinary action, that it Could be
considered that the latter law could
be an exception to the authority
and administrative power of the
Ombudsman
to
conduct
an
investigation against local elective
officials
and
as
such,
the
jurisdiction
now
to
conduct
administrative
investigation
against local elective officials is
already lodged before the offices
concerned under Section 61 of
Republic Act No. 7160.
xxx xxx xxx
WHEREFORE, foregoing premises
considered, Order is hereby issued:
1) Expanding the restraining order
dated September 25, 1992 issued
by the Court into an Order for the
issuance of a writ of preliminary
injunction upon the posting of the
petitioners of the bond in the
amount of Fifty thousand pesos
(P50,000.00) conditioned that the
latter will pay all the costs that
may be adjudged to the adverse
party and/or damages which he
may sustain by reason of the
injunction, if the Court will finally
adjudge that the petitioners are not
entitled thereto, and
2) Denying the respondent's Motion
to Dismiss dated September 28,
1992 for lack of merit.

SO ORDERED.

12

A writ of preliminary injunction was issued on 21


October 1992. 13 A motion for reconsideration made
by petitioner was denied by the trial court.
The instant recourse seeks the nullification of the
order of 15 October 1992 and the writ of preliminary
injunction of 21 October 1992 both issued by the trial
court and prays that respondent judge be directed to
desist from further proceeding with RTC Case No.
MDE-14.
There is merit in the petition.
The general investigatory power of the Ombudsman
is decreed by Section 13 (1,) Article XI, of the 1987
Constitution, 14 thus:
Sec. 13. The Office of the Ombudsman
shall have the following powers,
functions, and duties:
(1) Investigate on its own, or on
complaint by any person, any act or
omission of any public official,
employee, office or agency, when such
act or omission appears to be illegal,
unjust, improper, or inefficient;
while his statutory mandate to act on
administrative complaints is contained in
Section 19 of R.A. No. 6770 that reads:
Sec. 19. Administrative complaints.
The Ombudsman shall act on all
complaints relating, but not limited, to
acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive
or discriminatory;
3. Are inconsistent with the general
course of an agency's functions, though
in accordance with law;

4. Proceed from a mistake of law or an


arbitrary ascertainment of facts;
5. Are in the exercise of discretionary
powers but for an improper purpose; or
6. Are otherwise irregular, immoral or
devoid
of
justification.
Section 21 of the same statute names the
officials who could be subject to the
disciplinary
authority
of
the
Ombudsman, viz.:
Sec. 21. Officials Subject to
Disciplinary Authority; Exceptions.
The Office of the Ombudsman
shall have disciplinary authority
over all elective and appointive
officials of the Government and its
subdivisions, instrumentalities and
agencies, including Members of the
Cabinet, local
government,
government-owned or controlled
corporations and their subsidiaries
except over officials who may be
removed only by impeachment or
over Members of Congress, and the
Judiciary. (Emphasis supplied)
Taken in conjunction with Section 24 of R.A.
No. 6770, petitioner thus contends that the
Office of the Ombudsman correspondingly
has the authority to decree preventive
suspension on any public officer or
employee under investigation by it. Said
section of the law provides:
Sec. 24. Preventive Suspension.
The Ombudsman or his Deputy
may preventively suspend any
officer or employee under his
authority pending an investigation,
if in his judgment, the evidence of
guilt is strong, and (a) the charge
against such officer or employee
involves dishonesty, oppression or

grave misconduct or neglect in the


performance of duty; (b) the
charges would warrant removal
from the service; or (c) the
respondent's continued stay in
office may prejudice the case filed
against him.
The preventive suspension shall
continue
until
the
case
is
terminated by the Office of the
Ombudsman but not more than six
months, without pay, except when
the delay in the disposition of the
case by the Office of the
Ombudsman is due to the fault,
negligence or petition of the
respondent, in which case the
period of such delay shall not be
counted in computing the period of
suspension herein provided.
Respondent officials, upon the other hand, argue that
the disciplinary authority of the Ombudsman over
local officials must be deemed to have been removed
by the subsequent enactment of the Local
Government Code of 1991 which vests the authority
to investigate administrative charges, listed under
Section 60 15 thereof, on various offices. In the case
specifically of complaints against elective officials of
provinces and highly urbanized cities, the Code
states:
Sec. 61. Form and Filing of
Administrative Complaints. A
verified complaint against any
erring local elective officials shall
be prepared as follows:
(a) A complaint against any
elective official of a province, a
highly
urbanized
city,
an
independent component city or
component city shall be filed
before the Office of the President.
Thus respondents insist, conformably with
Section 63 of the Local Government Code,

preventive suspension can only be imposed


by: ". . . the President if the respondent is an
elective official of a province, a highly
urbanized or an independent component
city; . . . " under sub-paragraph (b) thereof:
(b) Preventive suspension may be
imposed at any time after the
issues are joined, when the
evidence of guilt is strong, and
given the gravity of the offense,
there is great probability that the
continuance in office of the
respondent could influence the
witnesses or pose a threat to the
safety and integrity of the records
and other evidence; Provided, That,
any single preventive suspension of
local elective officials shall not
extend
beyond
sixty
(60)
days: Provided, further, That in the
event that several administrative
cases are filed against an elective
official, he cannot be preventively
suspended for more than ninety
(90) days within a single year on
the same ground or grounds
existing and known at the time of
the first suspension.
In his comment, which the Court required considering
that any final resolution of the case would be a
matter of national concern, the Solicitor-General has
viewed the Local Government Code of 1991 as
having conferred, but not on an exclusive basis, on
the Office of the President (and the various
Sanggunians) disciplinary authority over local
elective officials. He posits the stand that the Code
did not withdraw the power of the Ombudsman
theretofore vested under R.A. 6770 conformably with
a constitutional mandate. In passing, the Solicitor
General has also opined that the appropriate remedy
that should have been pursued by respondent
officials is a petition for certiorari before this Court
rather than their petition for prohibition filed with the
Regional Trial Court.
Indeed, there is nothing in the Local Government
Code to indicate that it has repealed, whether

expressly or impliedly, the pertinent provisions of the


Ombudsman Act. The two statutes on the specific
matter in question are not so inconsistent, let alone
irreconcilable, as to compel us to only uphold one
and strike down the other . Well settled is the rule
that repeals of laws by implication are not
favored, 16 and that courts must generally assume
their congruent application. 17 The two laws must be
absolutely incompatible, 18 and a clear finding thereof
must surface, before the inference of implied repeal
may be drawn. 19 The rule is expressed in the
maxim, interpretare et concordare legibus est
optimus interpretendi, i.e., every statute must be so
interpreted and brought into accord with other laws
as to form a uniform system of jurisprudence. 20 The
fundament is that the legislature should be presumed
to have known the existing laws on the subject and
not to have enacted conflicting statutes. 21 Hence, all
doubts must be resolved against any implied
repeal,22 and all efforts should be exerted in order to
harmonize and give effect to all laws on the
subject. 23
Certainly, Congress would not have intended to do
injustice to the very reason that underlies the
creation of the Ombudsman in the 1987 Constitution
which "is to insulate said office from the long
tentacles of officialdom." 24
Quite interestingly, Sections 61 and 63 of the present
Local Government Code run almost parallel with the
provisions then existing under the old code. Section
61 and Section 63 of the precursor local Government
Code of 1983, 25 under the heading of "Suspension
and Removal," read:
Sec. 61. Form and Filing of Complaints.
Verified complaints against local
elective officials shall be prepared as
follows:
(a) Against any elective provincial or
city official, before the Minister of Local
Government.
Sec. 63. Preventive Suspension. (1)
Preventive suspension may be imposed
by the Minister of Local Government if

the respondent is a provincial or city


official, by the provincial governor if the
respondent is an elective municipal
official, or by the city or municipal
mayor if the respondent is an elective
barangay official.
(2) Preventive suspension may be
imposed at any time after the issues
are joined, when there is reasonable
ground to believe that the respondent
has committed the act or acts
complained of, when the evidence of
culpability is strong, when the gravity of
the offense so warrants, or when the
continuance in office of the respondent
could influence the witnesses or pose a
threat to the safety and integrity of the
records and other evidence. In all
cases, preventive suspension shall not
extend beyond sixty days after the start
of said suspension.
(3) At the expiration of sixty days, the
suspended official shall be deemed
reinstated in office without prejudice to
the continuation of the proceedings
against him until its termination.
However,
if
the
delay
in
the
proceedings of the case is due to his
fault, neglect or request, the time of the
delay shall not be counted in computing
the time of suspension.
The authority to conduct administrative
investigation and to impose preventive
suspension over elective provincial or city
officials was at that time entrusted to the
Minister of Local Government until it
became concurrent with the Ombudsman
upon the enactment of R.A. No. 6770,
specifically under Sections 21 and 24
thereof, to the extent of the common grant.
The Local Government Code of 1991 (R.A.
No. 7160), in fine, did not effect a change
from
what
already
prevailed,
the
modification being only in the substitution of
the Secretary (the Minister) of Local
Government by the Office of the President.

Respondent local officials contend that the 6-month


preventive suspension without pay under Section 24
of the Ombudsman Act is much too repugnant to the
60-day preventive suspension provided by Section 63
of the Local Government Code to even now maintain
its application. The two provisions govern differently.
In order to justify the preventive suspension of a
public official under Section 24 of R.A. No. 6770, the
evidence of guilt should be strong, and (a) the charge
against the officer or employee should involve
dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges
should warrant removal from the service; or (c) the
respondent's continued stay in office would prejudice
the case filed against him. The Ombudsman can
impose the 6-month preventive suspension to all
public officials, whether elective or appointive, who
are under investigation. Upon the other hand, in
imposing the shorter period of sixty (60) days of
preventive suspension prescribed in the Local
Government Code of 1991 on an elective local official
(at any time after the issues are joined), it would be
enough that (a) there is reasonable ground to believe
that the respondent has committed the act or acts
complained of, (b) the evidence of culpability is
strong, (c) the gravity of the offense so warrants, or
(d) the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence.
Respondent officials, nevertheless, claim that
petitioner committed grave abuse of discretion when
he caused the issuance of the preventive suspension
order without any hearing.
The contention is without merit. The records reveal
that petitioner issued the order of preventive
suspension after the filing (a) by respondent officials
of their opposition on the motion for preventive
suspension and (b) by Mayor Ouano of his
memorandum in compliance with the directive of
petitioner. Be that, as it may, we have heretofore
held that, not being in the nature of a penalty, a
preventive suspension can be decreed on an official
under investigation after charges are brought and
even before the charges are heard. Naturally, such
a preventivesuspension would occur prior to any
finding of guilt or innocence. In the early case

of Nera
vs. Garcia, 26 reiterated
cases, 27 we have said:

in

subsequent

In connection with the suspension


of petitioner before he could file his
answer
to the
administrative
complaint, suffice it to say that the
suspension was not a punishment
or penalty for the acts of
dishonesty and misconduct in
office, but only as a preventive
measure.
Suspension
is
a
preliminary
step
in
an
administrative investigation. If after
such investigation, the charges are
established
and
the
person
investigated is found guilty of acts
warranting his removal, then he is
removed or dismissed. This is the
penalty. There is, therefore, nothing
improper in suspending an officer
pending his investigation and
before the charges against him are
heard and be given an opportunity
to prove his innocence.
Moreover, respondent officials were, in point of fact,
put on preventive suspension only after petitioner
had found, in consonance with our ruling
in Buenaseda vs. Flavier, 28 that the evidence of guilt
was strong. Petitioner gave his justification for the
preventive suspension in this wise:
After a careful and honest scrutiny
of the evidence submitted on
record, at this stage, it is the
holding of this office that the
evidence of guilt against the
respondents in the instant case is
strong. There is no question that
the charge against the respondents
involves
dishonesty
or
gross
misconduct which would warrant
their removal from the service and
there is no gainsaying the fact that
the charge for falsification of
veritable documents
like city
ordinances
are
very
serious
charges that affect the very

foundations of duly established


representative
governments.
Finally, it is likewise the holding of
this office at this stage that the
continued
stay
in
office
of
respondents may prejudice the
judicious
investigation
and
resolution of the instant case. 29

the Supreme Court by filing a


petition for certiorari within ten
(10) days from receipt of the
written notice of the order,
directive or decision or denial of
the motion for reconsideration in
accordance with Rule 45 of the
Rules of Court. (Emphasis supplied)

Finally, it does appear, as so pointed out by the


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

All told, petitioner is plainly entitled to the relief


prayed for, and we must, accordingly; grant the
petition.

Sec. 14. Restrictions. No writ of


injunction shall be issued by any
court to delay an investigation
being
conducted
by
the
Ombudsman under this Act, unless
there is a prima facie evidence that
the
subject
matter
of
the
investigation
is
outside
the
jurisdiction of the Office of the
Ombudsman.

WHEREFORE, the questioned writ of preliminary


injunction of 21 October 1992 is ANNULLED and SET
ASIDE, and RTC Case No. MDE-14 is hereby ordered
DISMISSED. No costs.
SO ORDERED.

No court shall hear any appeal or


application for remedy against the
decision
or
findings
of
the
Ombudsman, except the Supreme
Court, on pure question of law.
Likewise noteworthy is Section 27 of the law
which prescribes a direct recourse to this
Court on matters involving orders arising
from administrative disciplinary cases
originating
from
the
Office
of
the
Ombudsman; thus:
Sec. 27. Effectivity and Finality of
Decisions. . . .
In all administrative disciplinary
cases,
orders,
directives,
or
decisions of the Office of the
Ombudsman may be appealed to

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


Petitioner,
- versus ROLSON RODRIGUEZ,
Respondent. July 23, 2010
x-----------------------------------------------DECISION

CARPIO, J.:
The Case
This is a petition for review [1] of the 8 May 2006
Decision[2] of the Court of Appeals in CA-G.R. SP No.
00528 setting aside for lack of jurisdiction the 21
September 2004 Decision[3] of the Ombudsman
(Visayas) in OMB-V-A-03-0511-H.
The Antecedent Facts
On 26 August 2003, the Ombudsman in Visayas
received a complaint[4] for abuse of authority,
dishonesty, oppression, misconduct in office, and
neglect of duty against Rolson Rodriguez, punong
barangay in Brgy. Sto. Rosario, Binalbagan, Negros
Occidental. On 1 September 2003, the sangguniang
bayan of Binalbagan, Negros Occidental, through
vice-mayor Jose G. Yulo, received a similar
complaint[5] against Rodriguez for abuse of authority,
dishonesty, oppression, misconduct in office, and
neglect of duty.
In its 8 September 2003 notice, [6] the municipal vicemayor required Rodriguez to submit his answer
within 15 days from receipt of the notice. On 23
September 2003, Rodriguez filed a motion to
dismiss[7] the case filed in the sangguniang bayan on
the ground that the allegations in the complaint were
without factual basis and did not constitute any
violation of law. In a compliance [8] dated 22 October
2003, Rodriguez alleged complainants violated the
rule against forum shopping.
Meanwhile, in its 10 September 2003 order, [9] the
Ombudsman required Rodriguez to file his answer.
Rodriguez filed on 24 October 2003 a motion to
dismiss[10] the case filed in the Ombudsman on the
grounds of litis pendentia and forum shopping. He
alleged that the sangguniang bayan had already
acquired jurisdiction over his person as early as 8
September 2003.
The municipal vice-mayor set the case for hearing on
3 October 2003.[11] Since complainants had no
counsel, the hearing was reset to a later date. When
the case was called again for hearing, complainants
counsel manifested that complainants would like to
withdraw the administrative complaint filed in
the sangguniang bayan. On 29 October 2003,
complainants filed a motion[12] to withdraw the
complaint lodged in the sangguniang bayan on
the ground that they wanted to prioritize the
complaint filed in the Ombudsman. Rodriguez filed a
comment[13] praying that the complaint be dismissed
on the ground of forum shopping, not on the ground
complainants
stated.
In
their
opposition,

[14]

complainants admitted they violated the rule


against forum shopping and claimed they filed the
complaint in the sangguniang bayan without the
assistance of counsel. In his 4 November 2003
Resolution,[15] the municipal vice-mayor dismissed
the case filed in the sangguniang bayan.
In its 29 January 2004 order, [16] the Ombudsman
directed both parties to file their respective verified
position papers. Rodriguez moved for reconsideration
of the order citing the pendency of his motion to
dismiss.[17] In its 11 March 2004 order,[18] the
Ombudsman stated that a motion to dismiss was a
prohibited pleading under Section 5 (g) Rule III of
Administrative Order No. 17. The Ombudsman
reiterated its order for Rodriguez to file his position
paper.
In his position paper, Rodriguez insisted that
the sangguniang bayan still continued to exercise
jurisdiction over the complaint filed against him. He
claimed he had not received any resolution or
decision
dismissing
the
complaint
filed
in
the sangguniang bayan. In reply,[19] complainants
maintained there was no more complaint pending in
thesangguniang bayan since the latter had granted
their motion to withdraw the complaint. In a
rejoinder,[20] Rodriguez averred that the sangguniang
bayan resolution dismissing the case filed against
him was not valid because only the vice-mayor
signed it.
The Ruling of the Ombudsman
In
its
21
September
2004
Decision,[21] the
Ombudsman found Rodriguez guilty of dishonesty
and oppression. It imposed on Rodriguez the penalty
of dismissal from the service with forfeiture of all
benefits, disqualification to hold public office, and
forfeiture of civil service eligibilities. Rodriguez filed a
motion for reconsideration.[22] In its 12 January 2005
Order,[23] the Ombudsman denied the motion for
reconsideration. In its 8 March 2005 Order, [24] the
Ombudsman directed the mayor of Binalbagan,
Negros Occidental to implement the penalty of
dismissal against Rodriguez.
Rodriguez filed in the Court of Appeals a petition for
review with prayer for the issuance of a temporary
restraining order.
The Ruling of the Court of Appeals
In its 8 May 2006 Decision, [25] the Court of Appeals
set aside for lack of jurisdiction the Decision of the
Ombudsman and directed the sangguniang bayan to
proceed with the hearing on the administrative case.
The appellate court reasoned that the sangguniang

bayan had acquired primary jurisdiction over the


person of Rodriguez to the exclusion of the
Ombudsman. The Court of Appeals relied on Section
4, Rule 46 of the Rules of Court, to wit:
Sec. 4. Jurisdiction over person of
respondent, how acquired. The
court shall acquire jurisdiction over
the person of the respondent by
the service on him of its order or
resolution indicating its initial
action on the petition or by his
voluntary submission to such
jurisdiction
The appellate court noted that the sangguniang
bayan served on Rodriguez a notice, requiring the
latter to file an answer, on 8 September 2003 while
the Ombudsman did so two days later or on 10
September 2003.
Petitioner Ombudsman contends that upon the filing
of a complaint before a body vested with jurisdiction,
that body has taken cognizance of the complaint.
Petitioner cites Blacks Law Dictionary in defining
what to take cognizance means to wit, to
acknowledge or exercise jurisdiction. Petitioner
points out it had taken cognizance of the complaint
against Rodriguez before a similar complaint was
filed in the sangguniang bayan against the same
respondent. Petitioner maintains summons or notices
do not operate to vest in the disciplining body
jurisdiction over the person of the respondent in an
administrative case. Petitioner concludes that
consistent with the rule on concurrent jurisdiction,
the Ombudsmans exercise of jurisdiction should be to
the exclusion of the sangguniang bayan.
Private respondent Rolson Rodriguez counters that
when a competent body has acquired jurisdiction
over a complaint and the person of the respondent,
other bodies are excluded from exercising jurisdiction
over the same complaint. He cites Article 124 of the
Implementing Rules and Regulations of Republic Act
No. 7160,[26] which provides that an elective official
may be removed from office by order of the proper
court or the disciplining authority whichever first
acquires jurisdiction to the exclusion of the other.
Private
respondent
insists
the sangguniang
bayan first acquired jurisdiction over the complaint
and his person. He argues jurisdiction over the
person of a respondent in an administrative
complaint is acquired by the service of summons or
other compulsory processes. Private respondent
stresses complainants violated the rule against forum
shopping when they filed identical complaints in two

disciplining
jurisdiction.

authorities

exercising

concurrent

The Issues
The issues submitted for resolution are (1) whether
complainants violated the rule against forum
shopping when they filed in the Ombudsman and
the sangguniang bayanidentical complaints against
Rodriguez; and (2) whether it was the sangguniang
bayan or the Ombudsman that first acquired
jurisdiction.
The Courts Ruling
The petition has merit.
Paragraph 1, Section
Constitution provides:

13

of

Article

XI

of

the

Sec. 13. The Ombudsman shall


have
the
following
powers,
functions, and duties:

employee applies only in cases cognizable by


the Sandiganbayan. In cases cognizable by regular
courts, the Ombudsman has concurrent jurisdiction
with other investigative agencies of government.
[27]
Republic Act No. 8249, otherwise known as An Act
Further
Defining
the
Jurisdiction
of
the Sandiganbayan, limits the cases that are
cognizable by the Sandiganbayan to public officials
occupying positions corresponding to salary grade 27
and higher. The Sandiganbayanhas no jurisdiction
over private respondent who, as punong barangay, is
occupying a position corresponding to salary grade
14 under Republic Act No. 6758, otherwise known as
the Compensation and Position Classification Act of
1989.[28]
Under Republic Act No. 7160, otherwise known as the
Local
Government
Code,
the
sangguniang
panlungsod or sangguniang bayan has disciplinary
authority over any elective barangay official, to wit:

(1) Investigate on its own, or on


complaint by any person, any
act or omission of any public
official, employee, office, or
agency, when such act or
omission appears to be illegal,
unjust, improper, or inefficient.

SEC. 61. Form and Filing of


Administrative
Complaints.
A
verified complaint against any
erring elective official shall be
prepared as follows:

Section 15 of Republic Act No. 6770, otherwise


known as the Ombudsman Act of 1989, states:

(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.

Sec. 15. Powers, Functions, and


Duties. The Ombudsman shall have
the following powers, functions,
and duties:
(1) Investigate and prosecute on
its own or on complaint by any
person, any act or omission of
any public officer or employee,
office or agency, when such
act or omission appears to be
illegal, unjust, improper, or
inefficient. It has primary
jurisdiction
over
cases
cognizable
by
the Sandiganbayan and, in the
exercise
of
this
primary
jurisdiction, it may take over,
at any stage, from any
investigatory
agency
of
Government,
the
investigations of such cases.
The primary jurisdiction of the Ombudsman to
investigate any act or omission of a public officer or

xxxx

Clearly, the Ombudsman has concurrent jurisdiction


with the sangguniang bayan over administrative
cases against elective barangay officials occupying
positions below salary grade 27, such as private
respondent in this case.
The facts in the present case are analogous to those
in Laxina, Sr. v. Ombudsman,[29] which likewise
involved identical administrative complaints filed in
both the Ombudsman and the sangguniang
panlungsod against a punong barangay for grave
misconduct. The Court held therein that the rule
against forum shopping applied only to judicial cases
or proceedings, not to administrative cases. [30] Thus,
even if complainants filed in the Ombudsman and
the sangguniang bayan identical complaints against
private respondent, they did not violate the rule
against forum shopping because their complaint was
in the nature of an administrative case.

In administrative cases involving the concurrent


jurisdiction of two or more disciplining authorities,
the body in which the complaint is filed first, and
which opts to take cognizance of the case, acquires
jurisdiction to the exclusion of other tribunals
exercising concurrent jurisdiction.[31] In this case,
since the complaint was filed first in the
Ombudsman, and the Ombudsman opted to assume
jurisdiction over the complaint, the Ombudsmans
exercise of jurisdiction is to the exclusion of
the sangguniang
bayanexercising
concurrent
jurisdiction.
It is a hornbook rule that jurisdiction is a matter of
law. Jurisdiction, once acquired, is not lost upon the
instance of the parties but continues until the case is
terminated.[32] When herein complainants first filed
the complaint in the Ombudsman, jurisdiction was
already vested on the latter. Jurisdiction could no
longer be transferred to the sangguniang bayan by
virtue of a subsequent complaint filed by the same
complainants.
As a final note, under Section 60 of the Local
Government Code, the sangguniang bayan has no
power to remove an elective barangay official. Apart
from the Ombudsman, only a proper court may do so.
[33]
Unlike the sangguniang bayan, the powers of the
Ombudsman are not merely recommendatory. The
Ombudsman is clothed with authority to directly
remove[34] an erring public official other than
members of Congress and the Judiciary who may be
removed only by impeachment.[35]
WHEREFORE, we GRANT the petition. We SET
ASIDE the 8 May 2006 Decision of the Court of
Appeals in CA-G.R. SP No. 00528. We AFFIRM the 21
September 2004 Decision of the Ombudsman
(Visayas) in OMB-V-A-03-0511-H.
No pronouncement as to costs.
SO ORDERED.

On 15 June 1992, the Municipality of San


Nicolas, represented by Mayor Rodrigo, entered into
an
agreement
with
Philwood
Construction,
represented by Larry Lu, for the electrification of
Barangay Caboloan, San Nicolas, for the sum
of P486,386.18, requiring:

By Municipality

2. Installation of 24 rolls feeder lines with nos. 6, 8


and ten wires;

Cost of Actual

4. Construction of powerhouse with concrete


foundation double throw safety switches (double
pole, 250 amperes capacity of 220 V with fuse).
[1]

On 2 September 1992, Mejica, the Planning and


Development Coordinator of San Nicolas, prepared
an Accomplishment Report stating that the Caboloan
Power
Generation
project
was
97.5%
accomplished. Said report was supposedly approved
by mayor Rodrigo and confirmed by Larry Lu. On the
basis of said report, payment of P452,825.53 was
effected by the Municipal Treasurer, petitioner
Facundo, to Philwood Construction.

DECISION
KAPUNAN, J.:
Petitioners Conrado B. Rodrigo and Reynaldo G.
Mejica are the Mayor and Municipal Planning and
Development
Coordinator,
respectively,
of San
Nicolas, Pangasinan, while petitioner Alejandro A.
Facundo is the former Municipal Treasurer of the
same municipality.

Amount paid

1. Installation of the two (2) units diesel power


generator (20) KVA, 220 W, Battery start and
other accessories);

3. Installation of 40 units 4 x 4 wooden post with


accessories; and

[G.R. No. 125498. February 18, 1999]


CONRADO B. RODRIGO, JR., ALEJANDRO A.
FACUNDO
and
REYNALDO
G.
MEJICA, petitioners,
vs. THE
HONORABLE SANDIGANBAYAN (First
Division), OMBUDSMAN and PEOPLE OF
THE PHILIPPINES, respondents.

Ac

On 14 August 1993, petitioners received a


Notice of Disallowance dated 21 June 1993 from the
Provincial Auditor of Pangasinan, Atty. Agustin Chan,
Jr., who found that as per COA (Commission on Audit)
evaluation of the electrification project, only
60.0171% of the project (equivalent to P291,915.07)
was actually accomplished. Of the two units of
generator supposedly purchased, only one secondhand unit was delivered. The same generator broke
down after only two nights of operation. In addition,
instead of 40 wooden posts, only 27 were
installed. The powerhouse was only 65.635%
completed.The Provincial Auditor thus disallowed the
amount of P160,910.46.
The graph below serves to illustrate
conflicts between Mejicas report and the COAs:

the

P452,825.53

93

P291,915.07

60

P160,910.46

33

Accomplishment

Amount
Disallowed

In September 1993, petitioners requested the


Provincial
Auditor
to
lift
the
notice
of
disallowance[2] and
to
re-inspect
the
project.
[3]
Petitioners reiterated their plea in a letter to the
Provincial Auditor dated 3 November 1993,
[4]
attaching therewith a Certificate of Acceptance
and Completion[5] signed by Clemente Arquero, Jr.,
Barangay Captain of Caboloan, and Eusebio Doton,
President of the Cabaloan Electric Cooperative. The
Provincial Auditor, however, allegedly did not act on
petitioners requests.
On 10 January 1994, the Provincial Auditor filed
a criminal complaint for estafa before the
Ombudsman against petitioners. Likewise impleaded
were Larry Lu and Ramil Ang, President and General
Manager, and Project Engineer, respectively, of
Philwood Construction.
On 10 June 1995, Acting Ombudsman Francisco
Villa approved the filing of an information against
petitioners for violation of Section 3 (e) of Republic
Act No. 3019[6] before the Sandiganbayan.
On 28 July 1995, petitioners filed a motion for
reinvestigation
before
the Sandiganbayan. The Sandiganbayan granted said
motion in an Order dated 22 April 1996.
On 7 November 1995, the Office of the Special
Prosecutor issued a memorandum recommending
that
the
charges
against
petitioners
be
maintained. The
Ombudsman
approved
said
memorandum.

Petitioners
thereafter
filed
before
the Sandiganbayan a
motion
to
quash
the
information alleging, as grounds therefor that (1) the
facts alleged in the information did not constitute an
offense, and (2) the same information charged more
than one offense. Petitioners, however, did not
elaborate on these grounds. They instead faulted the
Provincial Auditor for instituting the complaint
against them notwithstanding the pendency of their
opposition to the notice of disallowance. They also
argued that the evidence against them did not
establish the element of damage nor the presence of
any conspiracy between them.
The Sandiganbayan denied said motion in an
Order dated 18 March 1996.
On 18 March 1996, the prosecution moved to
suspend
petitioners pendente
lite. Petitioners
opposed
the
motion
on
the
ground
that
the Sandiganbayan lacked jurisdiction over them. In
a
Resolution
dated
2
July
1996,
the Sandiganbayan ruled that it had jurisdiction over
petitioners
and
ordered
the
suspension
of
petitioners pendente lite.
Petitioners thus filed before this Court the
instant petition for certiorari under Rule 65, praying
that
the
Court
annul: (a)
the
order
of
the Sandiganbayan denying petitioners motion to
quash, and (b) the resolution of the same court
upholding its jurisdiction over petitioners. Petitioners
likewise prayed that this Court issue a temporary
restraining order to enjoin the Sandiganbayan from
proceeding with the case.

THE SANDIGANBAYAN HAS NO JURISDICTION TO


PROCEED AGAINST ALL THE PETITIONERS AND ALL
THE PROCEEDINGS THEREIN, PARTICULARLY THE
ORDER OF SUSPENSION FROM OFFICE PENDENTE
LITE, ARE NULL AND VOID AB INITIO.
III
THE
ONGOING
PROCEEDINGS
BEFORE
THE SANDIGANBAYAN IS A CLEAR VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE PETITIONERS
UNDER THE DUE PROCESS CLAUSEAS IT WAS
PRECEDED BY HASTY, MALICIOUS, SHAM AND HASTY
PRELIMINARY INVESTIGATION INEVITABLY EXPOSING
THEM TO A PROLONGED ANXIETY, AGGRAVATION,
EXPENSES, AND HUMILIATION OF A PUBLIC TRIAL.
IV
THE
PRECIPITATE SANDIGANBAYAN ORDER
OF
SUSPENSION IS A LEGAL ERROR AS THE SAME
EVIDENTLY THE LACK OF THE REQUIRED COLD
NEUTRALITY OF AN IMPARTIAL TRIBUNAL VIOLATING
PETITIONERS CONSTITUTIONAL RIGHTS UNDER
THE DUE PROCESS CLAUSE AND BILL OF RIGHTS.[7]

On 28 August 1998, the court resolved to issue


the temporary restraining order prayed for.

The first ground raises two issues: (1) whether


petitioners right to due process was violated by the
filing of the complaint against them by the Provincial
Auditor, and (2) whether the Ombudsman committed
grave abuse of discretion in filing the information
against petitioners. The second questions the
jurisdiction
of
the Sandiganbayan over
petitioners. The third and fourth grounds are related
to the first and are subsumed thereunder.

Petitioners allege the following grounds in


support of their petition:

After a meticulous scrutiny of petitioners


arguments, we find the petition devoid of merit.

THE SANDIGANBAYAN ERRED


IN
ALLOWING
THE LITIGATION OF THE CRIMINAL INFORMATION
FOR CONSPIRACY IN VIOLATING SECTION 3(E) OF THE
ANTI- GRAFT ACT (R.A.3019) WHEN THE NOTICE
OF DISALLOWANCE
STILL
PENDS
WITH
THE
PROVINCIAL AUDITOR UNDER PETITIONER PROTEST
SUPPORTED BY CERTIFICATE OF COMPLETION AND
ACCEPTANCE OF THE REQUIRED ELEMENT OF
'CAUSING UNDUE INJURY TO ANY PARTY, INCLUDING
THE GOVERNMENT AND GROSS NEGLIGENCE.

Petitioners contend that the institution by the


Provincial Auditor of the complaint despite the
pendency of their opposition to the notice of
disallowance violates their right to due process. They
submit that the issuance of a notice of disallowance
against (them) compels the provincial auditor to
either accept a settlement or adjudicate and decide
on the written explanation for the purpose of
lifting/settling the suspension or extending the time
to answer beyond the ninety (90) day period prior to
its conversion into a disallowance.[8]

II

The italicized portion above is an excerpt from


Section 44.6.4 of the State Audit Manual, which
states in full:

Sec. 44.6.4. Auditors Responsibility re Evaluation of


Disallowance. It shall be the responsibility of the
auditor to exercise professional judgment in
evaluating, on the basis of the facts and
circumstances of each case as well as the pertinent
provisions of applicable laws, rules and regulations,
the grounds for a charge or suspension/disallowance
of an account or transaction.
It shall be the responsibility of the auditor to exercise
sound judgment in evaluating the written explanation
of
the
accountable/responsible/liable
officer
concerned for the purpose of lifting the suspension or
extending the time to answer beyond the ninety (90)
day period prior to its conversion into a
disallowance. (Underscoring supplied.)
The aforequoted provision should be read in
conjunction with Section 82 of the State Audit Code,
[9]
which states that:
(a) charge of suspension which is not
satisfactorily explained within ninety days after
receipt or notice by the accountable officer
concerned shall become a disallowance, unless
the Commission or auditor concerned shall, in
writing and for good cause shown, extend the
time for answer beyond ninety days.
At this point, it may be useful to distinguish
between
a
disallowance
and
a
suspension. A disallowance is the disapproval of a
credit or credits to an account/accountable officers
accountability due to non-compliance with law or
regulations.[10] Thus, the auditor may disallow an
expenditure/transaction
which
is
unlawful
or
improper.[11]
A suspension, on the other hand, is the
deferment
of
action
to
debit/credit
the
account/accountable officers accountability pending
compliance with certain requirements.[12] A notice of
suspension is issued on transactions or accounts
which could otherwise have been settled except for
some requirements, like lack of supporting
documents or certain signatures. It is also issued on
transactions or accounts the legality/propriety of
which the auditor doubts but which he may later
allow after satisfactory or valid justification is
submitted by the parties concerned.[13]
As stated in Section 82, supra, however, the
suspension shall become a disallowance if the charge
of suspension is not satisfactorily explained within
ninety days after receipt or notice by the accountable
officer concerned." The ninety-day period within

which the accountable officer may answer the charge


of suspension may nevertheless be extended by the
Commission or the auditor for good cause shown.
Clearly, petitioners misinterpreted Section
44.6.4. First,
petitioners
were
not
charged
with suspension but disallowance. Second,
the
written explanation referred to in said section is for
the purpose of lifting the suspension or extending the
time to answer beyond the ninety (90) day period
prior to its conversion into a disallowance, not for
contesting a disallowance, as petitioners wrongfully
assert. Section 44.6.4., therefore, finds no application
in this case.
On the other hand, respondents correctly
invoke Sections 55 and 56 of Commission on Audit
Circular No. 85-156-B, which respectively provide:
SECTION
55.
ACTIVITIES

REPORTING

FRAUD/UNLAWFUL

If after evaluation of the findings, the auditor is


convinced that the evidence sufficiently discloses the
fraud and other unlawful activities and identifies the
perpetrators thereof, he shall prepare the sworn
statements of the examining witnesses and/or other
witnesses
and
make
a
report
to
the
Manager/Regional Director concerned, attaching
thereto copies of the pertinent affidavits and other
supporting documents.
SECTION 56. INSTITUTION OF CRIMINAL ACTION
If criminal prosecution is warranted, the Regional
Director/Manager concerned with respect to National
Government
Agencies/government
Owned
or
Controlled Corporations or Provincial/City Auditors
with respect to local government units shall prepare
a letter-complaint and file the same with the
Tanodbayan or the local deputized Tanodbayan
prosecutor within ten (10) days from receipt of the
report from the examining auditor, attaching thereto
copies of the sworn statements or affidavits of
witnesses and other pertinent documents.
Section 56 imposes upon the Provincial Auditor
the duty to file a complaint before the Tanodbayan
(now the Ombudsman) when, from the evidence
obtained during the audit, he is convinced that
criminal prosecution is warranted. The Provincial
Auditor need not resolve the opposition to the notice
of disallowance and the motion for re-inspection
pending in his office before he institutes such
complaint so long as there are sufficient grounds to

support the same. The right to due process of the


respondents to the complaint, insofar as the criminal
aspect of the case is concerned, is not impaired by
such institution. The respondents will still have the
opportunity to confront the accusations contained in
the
complaint
during
the
preliminary
investigation. They may still raise the same defenses
contained in their motion to lift the disallowance, as
well as other defenses, in the preliminary
investigation. Should the Provincial Auditor later
reverse himself and grant respondents motions, or
should the COA, or this Court, subsequently absolve
them from liability during the pendency of the
preliminary investigation, the respondents may ask
the prosecuting officer to take cognizance of such
decision. The prosecuting officer may then accord
such decision its proper weight.
It bears stressing that the exoneration of
respondents in the audit investigation does not mean
the automatic dismissal of the complaint against
them. The preliminary investigation, after all, is
independent from the investigation conducted by the
COA, their purposes distinct from each other. The
first involves the determination of the fact of the
commission of a crime; the second relates to the
administrative aspect of the expenditure of public
funds.[14]
Accordingly, we hold that the Ombudsman did
not err in entertaining the complaint filed by the
Provincial
Auditor
against
petitioners,
nor
the Sandiganbayan in allowing trial to proceed,
despite the pendency of petitioners motions before
the auditor.
II
Petitioners argue that their opposition to the
disallowance, supported as it is by a certificate of
acceptance and completion, would betray the
absence of the elements of evident bad faith or
negligence, and damage. They likewise claim that
the evidence does not establish conspiracy among
them.
The presence or absence of the elements of the
crime, however, is evidentiary in nature and is a
matter of defense, the truth of which can be best
passed upon after a full-blown trial on the merits.
[15]
The same applies to the alleged absence of any
conspiracy between the accused.
This Court, moreover, has maintained a
consistent policy of non-interference in the
determination of the Ombudsman regarding the
existence of probable cause, provided there is no
grave abuse in the exercise of such discretion. [16] In a
recent decision,[17] this Court, quoting Young vs.

Office of the Ombudsman,[18] stated the rationale for


this rule:
... 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 court 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.
Petitioners have failed to establish any such
abuse on the part of the Ombudsman.
III
Petitioners next question the jurisdiction of
the Sandiganbayan. They
contend
that
Mayor
Rodrigo occupies a position of Grade 24 and is,
therefore, beyond the original and exclusive
jurisdiction of theSandiganbayan.
Before the passage of Republic Act No.
7975[19] on 30 March 1995, the pertinent portions of
section 4 of Presidential Decree No. 1606, [20] as
amended by Presidential Decree No. 1861, [21] read as
follows:
SEC.
exercise:

4. Jurisdiction. The Sandiganbayan shall

(a) Exclusive original jurisdiction in all cases


involving:
(1) Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public
officers and employees in relation to their office,
including those employed in government-owned or
controlled
corporations,
whether
simple
or
complexed with other crimes, where the penalty
prescribed
by
law
is
higher
than prision
correccional or imprisonment for six (6) years, or a
fine of P6,000.00; PROVIDED, HOWEVER, that
offenses or felonies mentioned in this paragraph

where the penalty prescribed by law does not


exceed prision correccional or imprisonment for six
(6) years or a fine of P6,000.00 shall be tried by the
proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial Court.
xxx.
Section 2 of R.A. No. 7975 subsequently
redefined the jurisdiction of the Anti-Graft Court such
that the pertinent portions of Section 4 of P.D. No.
1606 now reads:
Sec.
4. Jurisdiction.
-the Sandiganbayan shall
exercise original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code, where
one or more of the principal accused are officials
occupying the following positions in the government,
whether in a permanent, acting or interim capacity,
at the time of the commission of the offense:
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as grade 27 and higher, of the
Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of
the sangguniang
panlalawigan and
provincial
treasurers, assessors, engineers, and other provincial
department heads;
(b) City
mayors,
vice-mayors,
members
of
the sangguniang
panlungsod,
city
treasurers,
assessors, engineers, and other city department
heads.
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) PNP chief superintendent and PNP officers of
higher rank;
(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the Office
of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of


government-owned or controlled corporations, state
universities
or
educational
institutions
or
foundations;
(2) Members of Congress and officials thereof
classified as Grade 27 and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of
the Constitution; and
(5) All other national and local officials classified as
Grade 27 and higher under the Compensation and
Position Classification Act of 1989.
b. Other offenses or felonies committed by the public
officials and employees mentioned in subsection (a)
of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and
14-A.
In cases where none of the principal accused are
occupying positions corresponding to salary grade 27
or higher, as prescribed in the said Republic Act No.
6758, or PNP officers occupying the rank of
superintendent or higher, or their equivalent,
exclusive jurisdiction thereof shall be vested in the
proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court, and Municipal Circuit Trial
Court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas
Pambansa Blg. 129.
xxx
Then Associate, now Chief Justice, Hilario
Davide explained the effects of these amendments
in People vs. Magallanes:[22]
As a consequence of these amendments,
the Sandiganbayan partly lost its exclusive original
jurisdiction in cases involving violations of R.A. No.
3019, as amended,[23] as amended; R.A. No. 1379,
[24]
and Chapter II, Section 2, Title VII of the Revised
Penal Code,[25] it retains only cases where the
accused are those enumerated in subsection a,
Section 4 above and, generally, national and local

officials classified as Grade 27 and higher under the


Compensation and Position Classification Act of 1989
(R.A. No. 6758). Moreover, its jurisdiction over other
offenses or felonies committed by public officials and
employees in relation to their office is no longer
determined by the prescribed penalty, viz., that
which
is
higher
than prision
correccional or
imprisonment for six years or a fine of P6,000.00; it is
enough that they are committed by those public
officials
and
employees
enumerated
in
subsection a, Section 4 above. However, it retains its
exclusive original jurisdiction over civil and criminal
cases filed pursuant to or in connection with E.O.
Nos. 1,[26] 2,[27] 14,[28] and 14-A.[29]
The apparent intendment of these amendments
is to ease the dockets of the Sandiganbayan and to
allow the Anti-Graft Court to focus its efforts on the
trial of those occupying higher positions in
government, the proverbial big fish. Section 4, as
amended, freed the Sandiganbayan from the task of
trying cases involving lower-ranking government
officials, imposing such duty upon the regular courts
instead. The present structure is also intended to
benefit these officials of lower rank, especially those
residing outside Metro Manila, charged with crimes
related to their office, who can ill-afford the expenses
of a trial in Metro Manila. As the Explanatory Note of
House Bill No. 9825[30] states:
One is given the impression that only lowly
government workers or the so-called small fry are
expediently
tried
and
convicted
by
the Sandiganbayan. The reason for this is that at
present, the Sandiganbayanhas the exclusive and
original jurisdiction over graft cases committed by all
officials and employees of the government,
irrespective of rank and position, from the lowestpaid janitor to the highly-placed government
official. This jurisdiction of the Sandiganbayan must
be modified in such a way that only those occupying
high positions in the government and the military
(the big fishes) may fall under its exclusive and
original jurisdiction. In this was, the Sandiganbayan
can devote its time to big time cases involving the
big fishes in the government. The regular courts will
be vested with the jurisdiction of cases involving
less-ranking officials (those occupying positions
corresponding to salary grade twenty-seven (27) and
below and PNP members with a rank lower than
Senior Superintendent. This set-up will prove more
convenient to people in the provinces. They will no
longer have to travel to Manila to file their complaint
or to defend themselves. They can already file their
complaint or their defense before the Regional Trial
Court or the Municipal Trial Court in their respective
localities, as the case may be.

To distinguish the big fish from the small fry,


Congress deemed the 27th Grade as the demarcation
between those who should come under the
jurisdiction of the Sandiganbayan and those within
the regular courts. (While H.B. No. 9825 originally
intended only officials of Grade 28 and above as
within the exclusive and original jurisdiction of the
Sandiganbayan, the resulting law included officials of
Grade 27.) Thus, officials occupying positions of
Grade 27 and above, charged with crimes referred to
in Section 4 a. and b., are within the original and
exclusive jurisdiction of the Sandiganbayan; those
below come under the jurisdiction of the regular
courts.
Although some positions of Grade 27 and above
are stated by name in Section 4 a., the position of
Municipal Mayor is not among them. Nevertheless,
Congress provided a catchall in Section 4 a. (5), thus:
(5) All other national and local officials classified as
Grade 27 and higher under the Compensation and
Position Classification Act of 1989.
Such a catchall is necessary, for it would be
impractical, if not impossible, for Congress to list
down each position created or will be created
pertaining to Grades 27 and above.
At present, Volume III of the 1997 edition of the
Index of Occupational Services, Position Titles and
Salary Grades, which was prepared by the
Department of Budget and Management (DBM)
pursuant to Republic Act No. 6758, [31] otherwise
known
as
the
Compensation
and
Position
Classification Act of 1989, lists the following positions
under Salary Grade 27, including the position of
Municipal Mayor I:
Assistant Commissioner of Internal Revenue
Assistant Regional Cabinet Secretary
Assistant Regional Executive Secretary
Board Member I
Chairman, Police Regional Appellate Board
Chief of Mission, Class II
City Government Department Head III
City Trial Court Judge
Clerk of the Commission
Commission Member I
Court Attorney VI
Court of Appeals Reporter II
Deputy Administrator I
Deputy Commissioner I
Deputy Executive Director III
Deputy Insurance Commissioner
Director III
Executive Clerk of Court II

Executive Director II
Government Corporate Attorney III
Graft Investigation Officer II
Municipal Mayor I
Professor IV
Project Manager III
Prosecutor II
Provincial Agrarian Reform Adjudicator
Public Attorney IV
Regional Treasurer
Register of Deeds IV
Sangguniang Panlalawigan Member
Sangguniang Panlungsod Member II
Scientist II
Solicitor II
Special Prosecution Officer II
State Counsel IV
SUC President I
SUC Vice-President III

The Congress shall provide for the standardization of


compensation
of
government
officials
and
employees, including those in government-owned or
controlled corporation with original charters, taking
into account the nature of the responsibilities
pertaining to, and the qualifications required for their
positions.
This provision is not unique to the 1987
Constitution. The 1973 Constitution, in Section 6,
Article XII thereof, contains a very similar provision
pursuant to which then President Marcos, in the
exercise of his legislative powers, issued Presidential
Decree No. 985.[32]

Earlier, in the 1989 version of the same Index, the


Municipal Mayor was also assigned a Salary Grade of
27. It appears, therefore, that petitioner Mayor
comes within the exclusive and original jurisdiction of
the Sandiganbayan.
Petitioners, however, claim that at the time of
the commission of the alleged crime on or about 2
September 1992, Mayor Rodrigo, the highest public
ranking public official impleaded in this case, was
receiving a monthly salary of P10,441.00. Such
amount 6758 is supposedly equivalent to a fourth
step increment in Grade 24 under the Salary
Schedule prescribed in Section 7 of R.A. No. 6758: *
SEC. 7. Salary Schedule. The Department of Budget
and Management is hereby directed to implement
the Salary Schedule prescribed below:
Salary Schedule
Grade
Xxx
24
Xxx

1st

To give life to this policy, as well as the


constitutional prescription to (take) into account the
nature of the responsibilities pertaining to, and the
qualifications
required
for
the
positions
of
government officials and employees, Congress
adopted the scheme employed in P.D. No. 985 for
classifying positions with comparable responsibilities
and qualifications for the purpose of according such
positions similar salaries. This scheme is known as
the Grade, defined in P.D. No. 985 as:
Includ[ing] all classes of positions which, although
different with respect to kind or subject matter of
work, are sufficiently equivalent as to level of
difficulty and responsibilities and level of qualification
requirements of the work to warrant the inclusion of
such classes of positions within one range of basic
compensation.[33]

10,135

Petitioners conclude that Mayor Rodrigo, at the time


of the commission of the alleged crime, was
occupying a Grade 24 position and, thus, not within
the
Sandiganbayans
original
and
exclusive
jurisdiction, as defined in Section 2 of R.A. No. 7975.
This is a simplistic, and altogether incorrect,
interpretation of the law.
Section 5, Article IX-C of the Constitution
provides that:

However, with the advent of the new


Constitution, and in compliance therewith, Congress
enacted R.A. No. 6758. Section 2 thereof declares it
the policy of the State to provide equal pay for
substantially equal work and to base differences in
pay upon substantive differences in duties and
responsibilities, and qualification requirements of the
positions."

The Grade is therefore a means of grouping


positions sufficiently equivalent as to level of
difficulty and responsibilities and level of qualification
requirements of the work so that they may be
lumped together in one range of basic compensation.
Thus, Congress, under Section 8 of R.A. No.
6758, fixed the Salary Grades[34] of officials holding
constitutional positions, as follows:
SEC. 8. Salaries of Constitutional Officials and their
Equivalent. Pursuant to Section 17, Article XVIII of the
Constitution, the salary of the following officials shall

be in accordance with the Salary Grades indicated


hereunder:
S
a
l
a
r
y
G
r
a
d
e
Pr 3
es 3
id
en
t
of
th
e
Ph
ili
pp
in
es
Vi 3
ce 2
Pr
es
id
en
t
of
th
e
Ph
ili
pp
in
es
Pr 3
es 2
id
en
t
of
th
e
Se
na
te
Sp3

ea 2
ke
r
of
th
e
H
ou
se
of
Re
pr
es
en
ta
tiv
es
Ch3
ief 2
Ju
sti
ce
of
th
e
Su
pr
e
m
e
Co
ur
t
Se 3
na 1
to
r
M 3
e 1
m
be
r
of
th
e
H
ou
se
of
Re
pr
es
en
ta
tiv
es
As 3

so 1
ci
at
e
Ju
sti
ce
s
of
th
e
Su
pr
e
m
e
Co
ur
t
Ch
air 3
m1
an
of
a
Co
ns
tit
uti
on
al
Co
m
mi
ssi
on
un
de
r
Ar
tic
le
IX,
19
87
Co
ns
tit
uti
on
M
e 3
m0
be
r
of
a

Co
ns
tit
uti
on
al
Co
m
mi
ssi
on
un
de
r
Ar
tic
le
IX,
19
87
Co
ns
tit
uti
on

The Department of Budget and Management is


hereby authorized to determine the officials who are
of equivalent rank to the foregoing Officials, where
applicable, and may be assigned the same Salary
Grades based on the following guidelines:
xxx
As indicated in the aforequoted section,
Congress delegated the rest of this tedious task (of
fixing Salary Grades) to the DBM, subject to the
standards contained in R.A. No. 6758, by authorizing
the DBM to determine the officials who are of
equivalent rank to the foregoing officials, where
applicable, and to assign them the same Salary
Grades subject to a set of guidelines found in said
section.[35]
For positions below those mentioned under
Section 8, Section 9 directs the DBM to prepare the
Index of Occupational Services guided by (a) the
Benchmark Position prescribed in Section 9, [36] and
(b) the following factors:
(1) the education and experience required to
perform the duties and responsibilities of
the position;
(2) nature and complexity of the work to be
performed;

(3) the kind of supervision received;


(4) mental and/or physical strain required in the
completion of the work;

SEC. 19. Funding Source. The funding sources for the


amounts necessary to implement this Act shall be as
follows:

(5) nature and extent of internal and external


relationships;

(a) x x x

(6) kind of supervision exercised;

(b) For local government units, the amount shall be


charged against their respective funds. Local
government units which do not have adequate or
sufficient funds shall only partially implement the
established rates as may be approved by the Joint
Commission under Section 8 of Presidential Decree
No. 1188: Provided, That any partial implementation
shall be uniform and proportionate for all positions in
each local government unit: Provided further, That
savings
from
National
Assistance
to
Local
Government Units (NALGU) funds may be used for
this purpose.

(7) decision-making responsibility;


(8) responsibility for accuracy of records and
reports;
(9) accountability for
equipment; and

funds,

properties

and

(10) hardship, hazard and personal risk involved


in the job.
Pursuant to such authority, the DBM drafted the
1989 Index of Occupational Services, Position Titles
and Salary Grades, later revised in 1997. In both
versions, the position of Municipal Mayor was
assigned a Salary Grade 27.
That petitioner received a salary less than that
prescribed for such Grade is explained by Sections 10
and 19 (b) of R.A. No. 6758, which respectively
provide:
SEC. 10. Local Government Units (LGUs). -- The rates
of pay in LGUs shall be determined on the basis of
the class and financial capability of each
LGU: Provided, That such rates of pay shall not
exceed the following percentages of the rates in the
salary schedule prescribed under Section 7 hereof:

For
For
Provinces/ Municipa
Cities
lities
Special 100%
Cities
1stClas 100%
90%
s
2ndClas 95%
85%
s
3rdClas 90%
80%
s
4thClas 85%
75%
s
5thClas 80%
70%
s
6thClas 75%
65%
s

x x x. (Underscoring supplied.)
Thus, a local government officials actual salary
may be less than what the Salary Schedule under
Section 7 prescribes, depending on the class and
financial capability of his or her respective local
government unit. This circumstance, however, has no
bearing on such officials Grade. As the foregoing
discussion
shows, on
officials
salary
is
determined by the Grade accorded his position,
andultimately by the nature of his position the
level of difficulty and responsibilities and level of
qualification requirements of the work. To give
credence to petitioners argument that Mayor
Rodrigos salary determines his Grade would be to
misconstrue the provisions of R.A. No. 6758, and
ignore the constitutional and statutory policies
behind said law.
Petitioner mayors position having been
classified as Grade 27 in accordance with R.A. No.
6758, and having been charged with violation of
Section 3 (e) of R.A. No. 3019, petitioner is subject to
the jurisdiction of the Sandiganbayan, as defined by
Section 4 a. of P.D. No. 1606, as amended by Section
2 of R.A. No. 7975. By virtue of the same Section 4
a., as amended, his co-accused are also subject to
the Anti-Graft Courts jurisdiction.
WHEREFORE,
the
petition
is
hereby DISMISSED and the Temporary Restraining
Order issued by this Court on 28 August
1996 LIFTED.
SO ORDERED.

[G.R. Nos. 122297-98. January 19, 2000]


CRESCENTE
Y.
LLORENTE,
JR., petitioner,
vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
PARDO, J.:
The case before the Court is a special civil action
for certiorari[1] assailing the jurisdiction of the
Sandiganbayan over the criminal cases against then
municipal mayor Crescente Y. Llorente, Jr. for
violations of Republic Act No. 3019, as amended.
Petitioner Crescente Y. Llorente, Jr. was elected
municipal mayor of Sindangan, Zamboanga in 1988
and 1992. On May 8, 1995, he was a candidate for
congressman, second district of Zamboanga del
Norte, and was duly elected.
On August 6, 1993, the Office of the Special
Prosecutor[2] filed with the Sandiganbayan an
information[3] against Crescente Y. Llorente, Jr.,
municipal mayor of Sindangan, Zamboanga del
Norte, P/Sgt. Juanito Caboverde and Jose Dy for
violation of Section 3 (e), Republic Act No. 3019, as
amended, committed as follows:
"That on or about June 12, 1989, in the
Municipality of Sindangan, Zamboanga del
Norte, and within the jurisdiction of this
Honorable Court, accused Crescente Y.

Llorente, Jr., Municipal Mayor of Sindangan,


Zamboanga del Norte and P/Sgt. Juanito
Cadoverde of the defunct Integrated
National Police and as such public officers
and the other accused Jose Dy, a private
individual, conspiring with each other and
acting with evident bad faith, did then and
there, willfully, unlawfully and criminally
seized (sic) 930 sawn knockdown wooden
boxes owned by Godofredo M. Diamante
without any search and seizure warrant and
without issuing any receipt of seizure
thereby causing undue damage and injury
to said Godofredo M. Diamante and this
offense was committed in relation to the
office of the said public officers.

resawmill/box factory of R. F. Diamante


and
family,
without
sufficient
justification, after due demand and
payment of license fees were made,
said refusal to grant Mayors permit
being not only personal but for the
purpose of giving undue advantage to
similar businesses in town and as an act
of discriminating against the interest of
the complainant to the latters damage
and prejudice.
"CONTRARY TO LAW.

"(s/t) DANIEL B. JOVACON,


JR.

"Manila, August 6, 1993.

Special Prosecution Officer


III
On February 2, 1994, the three accused were
arraigned before the Sandiganbayan and pleaded not
guilty. Nex old
On
March
31,
1995,
the
Office
of
the
Ombudsman[5] filed with the Sandiganbayan another
information[6] against petitioner for violation of
Section 3 (f), Republic Act No. 3019, as amended,
committed as follows:
"That on or about July 5, 1993, and for
sometime
subsequent
thereto,
in
Sindangan, Zamboanga del Norte,
Philippines, and within the jurisdiction
of this Honorable Court, the abovenamed accused, a public officer, being
then the Municipal Mayor of Sindangan,
Zamboanga del Norte, with grave abuse
of authority, did then and there wilfully,
unlawfully and criminally refuse to issue
Mayors permit to the ice plant and

"(a) Provincial governors, vice governors,


members
of
the sangguniang
panlalawigan, and provincial treasurers,
assessors, engineers, and other provincial
department heads;
"(b) City mayors, vice mayors, members of
the sangguniang
panglungsod,
city
treasurers, assessors, engineers, and other
city department heads;

"Manila, Philippines, March 31, 1995

"CONTRARY TO LAW.

s/t) GUALBERTO J. DE LA
LLANA

"27" and higher, of the Compensation and


Position Classification Act of 1989 (Republic
Act No. 6758), specifically including:

Special Prosecution Officer


I
The trial of both criminal
Sandiganbayan has not begun.

cases

before

"(c) Officials of the diplomatic service


occupying the position of consul and
higher; Maniks
"(d) Philippine army and air force colonels,
naval captains, and all other officials of
higher rank;

the

On May 16, 1995, Congress enacted Republic Act No.


7975,[8] amending Section 4 of Presidential Decree
No. 1606,[9] providing: Mani kx
"SEC. 4. Jurisdiction The Sandiganbayan
shall exercise original jurisdiction in cases
involving:
"a. Violations of Republic Act No. 3019, as
amended, otherwise known as the AntiGraft and Corrupt Practices Act, Republic
Act 1379, and Chapter II, Section 2, Title VII
of the Revised Penal Code, where one or
more of the principal accused are officials
occupying the following positions in the
government, whether in a permanent,
acting or interim capacity, at the time of
the commission of the offense:
"(1) Officials of the executive branch
occupying the positions of regional director
or higher, otherwise classified as Grade

"(e) PNP chief superintendent and PNP


officers of higher rank;
"(f) City and provincial prosecutors and
their
assistants,
and
officials
and
prosecutors
in
the
Office
of
the
Ombudsman and special prosecutor;
"(g) Presidents, directors, or trustees, or
managers
of
government-owned
or
controlled corporations, state universities
or educational institutions of foundations.
"(2) Members of Congress and officials
thereof classified as Grade "27" and up
under the Compensation and Position
Classification Act of 1989;
"(3) Members of the judiciary without
prejudice to the provisions of the
Constitution;
"(4)
Chairmen
and
members
of
Constitutional
Commissions,
without

prejudice to the
Constitution; and

provisions

of

the

Occupational Services prepared by the Department


of Budget and Management (DBM).

"(5) All other national and local officials


classified as Grade "27" and higher under
the
Compensation
and
Position
Classification Act of 1989.

On September 7, 1995, the Sandiganbayan, First


Division[11] denied the motion to refer Criminal Case
No. 22655 to the Regional Trial Court. On October 10,
1995, the Sandiganbayan denied petitioners motion
for reconsideration.[12]

"b. Other offenses or felonies committed


by the public officials and employees
mentioned in subsection (a) of this section
in relation to their office.
"c. Civil and criminal cases filed pursuant
to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A.
"In cases where none of the principal
accused
are
occupying
positions
corresponding to salary grade "27" or
higher, as prescribed in the said Republic
Act No. 6758, or PNP officers occupying the
rank of superintendent or higher, or their
equivalent, exclusive jurisdiction thereof
shall be vested in the proper Regional Trial
Court, Metropolitan Trial Court, Municipal
Trial Court, and Municipal Circuit Trial
Court, as the case may be, pursuant to
their respective jurisdiction as provided in
Batas Pambansa Blg. 129."[10] Manikan

On September 14, 1995, Sandiganbayan, Third


Division[13] also denied the motion to transfer
Criminal Case No. 19763 to the Regional Trial Court.
Hence, petitioner filed these petitions for certiorari.[14]
On December 27, 1995, the Court consolidated the
two cases.[15]
On February 23, 1997, Congress enacted Republic
Act No. 8249, an act redefining the jurisdiction of
Sandiganbayan.[16]
On September 1, 1999, we gave due course to the
petitions.[17] Ncm
The issue raised in these two cases is whether or not
Republic Act No. 7975 divested the Sandiganbayan of
its jurisdiction over violations of Republic Act No.
3019, as amended, against municipal mayors.

On July 10, 1995, petitioner filed with the


Sandiganbayan, Third Division, a motion to dismiss or
transfer Criminal Case No. 19763 to the Regional Trial
Court, Sindangan, Zamboanga.

We have resolved this issue in recent cases ruling


that the Sandiganbayan has jurisdiction over
violations of Republic Act No. 3019, as amended,
against municipal mayors.[18]

On the same date, petitioner filed with the


Sandiganbayan, First Division, a motion to refer
Criminal Case No. 22655 to the Regional Trial Court,
Sindangan, Zamboanga.

There is no merit to petitioners averment that the


salary received by a public official dictates his salary
grade. "On the contrary, it is the officials grade that
determines his or her salary, not the other way
around."[19] "To determine whether the official is
within
the
exclusive
jurisdiction
of
the
Sandiganbayan, therefore, reference should be made
to Republic Act No. 6758 and the Index of
Occupational Services, Position Titles and Salary
Grades. An officials grade is not a matter of proof,
but a matter of law which the court must take judicial
notice."[20]

Petitioner averred that the enactment of Republic Act


No. 7975 divested the Sandiganbayan of its
jurisdiction over criminal cases against municipal
mayors for violations of Republic Act No. 3019, as
amended, who receive salary less than that
corresponding to Grade 27, pursuant to the Index of

Section 444 (d) of the Local Government Code


provides that "the municipal mayor shall receive a
minimum monthly compensation corresponding to
Salary Grade twenty-seven (27) as prescribed under
Republic Act No. 6758 and the implementing
guidelines issued pursuant thereto." Additionally,
both the 1989 and 1997 versions of the Index of
Occupational Services, Position Titles and Salary
Grades list the municipal mayor under Salary Grade
27.[21] Consequently, the cases against petitioner as
municipal mayor for violations of Republic Act No.
3019, as amended, are within the exclusive
jurisdiction of the Sandiganbayan.
WHEREFORE, we hereby DISMISS the consolidated
petitions at bar, for lack of merit.
No costs.
SO ORDERED.

G.R. No. 123169 November 4, 1996


DANILO
E.
PARAS, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong
Barangay of Pula, Cabanatuan City who won during
the last regular barangay election in 1994. A petition
for his recall as Punong Barangay was filed by the
registered voters of the barangay. Acting on the
petition for recall, public respondent Commission on
Elections (COMELEC) resolved to approve the
petition, scheduled the petition signing on October
14, 1995, and set the recall election on November
13,
1995. 1 At least 29.30% of the registered voters

signed the petition, well above the 25% requirement


provided by law. The COMELEC, however, deferred
the recall election in view of petitioner's opposition.
On December 6, 1995, the COMELEC set anew the
recall election, this time on December 16, 1995. To
prevent the holding of the recall election, petitioner
filed before the Regional Trial Court of Cabanatuan
City a petition for injunction, docketed as SP Civil
Action No. 2254-AF, with the trial court issuing a
temporary restraining order. After conducting a
summary hearing, the trial court lifted the restraining
order, dismissed the petition and required petitioner
and his counsel to explain why they should not be
cited for contempt for misrepresenting that the
barangay recall election was without COMELEC
approval. 2

The subject provision of the Local Government Code


provides:

In a resolution dated January 5, 1996, the COMELEC,


for the third time, re-scheduled the recall election an
January 13, 1996; hence, the instant petition
for certiorari with urgent prayer for injunction. On
January 12, 1996, the Court issued a temporary
restraining order and required the Office of the
Solicitor General, in behalf of public respondent, to
comment on the petition. In view of the Office of the
Solicitor General's manifestation maintaining an
opinion adverse to that of the COMELEC, the latter
through its law department filed the required
comment. Petitioner thereafter filed a reply. 3

It is a rule in statutory construction that every part of


the statute must be interpreted with reference to the
context,i.e., that every part of the statute must be
considered together with the other parts, and kept
subservient to the general intent of the whole
enactment. 4 The evident intent of Section 74 is to
subject an elective local official to recall election
once during his term of office. Paragraph (b)
construed together with paragraph (a) merely
designates the period when such elective local
official may be subject of a recall election, that is,
during the second year of his term of office. Thus,
subscribing to petitioner's interpretation of the
phrase regular local election to include the SK
election will unduly circumscribe the novel provision
of the Local Government Code on recall, a mode of
removal of public officers by initiation of the people
before the end of his term. And if the SK election
which is set by R.A No. 7808 to be held every three
years from May 1996 were to be deemed within the
purview of the phrase "regular local election", as
erroneously insisted by petitioner, then no recall
election can be conducted rendering inutile the recall
provision of the Local Government Code.

Petitioner's argument is simple and to the point.


Citing Section 74 (b) of Republic Act No. 7160,
otherwise known as the Local Government Code,
which states that "no recall shall take place within
one (1) year from the date of the official's
assumption to office or one (1) year immediately
preceding a regular local election", petitioner insists
that the scheduled January 13, 1996 recall election is
now barred as the Sangguniang Kabataan (SK)
election was set by Republic Act No. 7808 on the first
Monday of May 1996, and every three years
thereafter.
In
support
thereof,
petitioner
cites Associated Labor Union v. Letrondo-Montejo,
237 SCRA 621, where the Court considered the SK
election as a regular local election. Petitioner
maintains that as the SK election is a regular local
election, hence no recall election can be had for
barely four months separate the SK election from the
recall election. We do not agree.

Sec. 74. Limitations on Recall. (a) Any


elective local official may be the subject
of a recall election only once during his
term of office for loss of confidence.
(b) No recall shall take place within one
(1) year from the date of the official's
assumption to office or one (1) year
immediately preceding a regular local
election.
[Emphasis added]

In the interpretation of a statute, the Court should


start with the assumption that the legislature
intended to enact an effective law, and the
legislature is not presumed to have done a vain thing
in the enactment of a statute. 5 An interpretation
should, if possible, be avoided under which a statute
or provision being construed is defeated, or as

otherwise
expressed,
nullified,
destroyed,
emasculated, repealed, explained away, or rendered
insignificant, meaningless, inoperative or nugatory. 6

office held by the local elective official sought to be


recalled will be contested and be filled by the
electorate.

It is likewise a basic precept in statutory construction


that a statute should be interpreted in harmony with
the Constitution. 7 Thus, the interpretation of Section
74 of the Local Government Code, specifically
paragraph (b) thereof, should not be in conflict with
the Constitutional mandate of Section 3 of Article X
of the Constitution to "enact a local government code
which shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization with effective
mechanism of recall, initiative, and referendum . . . ."

Nevertheless, recall at this time is no longer possible


because of the limitation stated under Section 74 (b)
of the Code considering that the next regular election
involving the barangay office concerned is barely
seven (7) months away, the same having been
scheduled on May 1997. 9

COMELEC
from
implementing
Resolution No. 96-2951.

and

enforcing

The facts of this case are not disputed.

Moreover, petitioner's too literal interpretation of the


law leads to absurdity which we cannot countenance.
Thus, in a case, the Court made the following
admonition:
We admonish against a too-literal
reading of the law as this is apt to
constrict rather than fulfill its purpose
and defeat the intention of its
authors. That intention is usually
found not in "the letter that killeth
but in the spirit that vivifieth". . . 8
The spirit, rather than the letter of a law
determines its construction; hence, a
statute, as in this case, must be read
according to its spirit and intent.
Finally, recall election is potentially disruptive of the
normal working of the local government unit
necessitating additional expenses, hence the
prohibition against the conduct of recall election one
year immediately preceding the regular local
election. The proscription is due to the proximity of
the next regular election for the office of the local
elective official concerned. The electorate could
choose the official's replacement in the said election
who certainly has a longer tenure in office than a
successor elected through a recall election. It would,
therefore, be more in keeping with the intent of the
recall provision of the Code to construe regular local
election as one referring to an election where the

ACCORDINGLY, the petition is hereby dismissed for


having become moot and academic. The temporary
restraining order issued by the Court on January 12,
1996, enjoining the recall election should be as it is
hereby made permanent.
SO ORDERED.

G.R. No. 126576 March 5, 1997


MAYOR RICARDO M. ANGOBUNG, petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, and
ATTY. AURORA S. DE ALBAN, respondents.

Petitioner won as the duly elected Mayor of the


Municipality of Tumauini, Isabela in the local elections
of 1995. He garnered 55% of all the votes cast.
Private respondent de Alban was also a candidate in
said elections.
Sometime in early September, 1996, private
respondent filed with the Local Election Registrar of
Tumauini, Isabela, a Petition for Recall 3 against
petitioner. On September 12, 1996, petitioner
received a copy of this petition. Subsequently said
petition was forwarded to the Regional Office in
Tuguegarao, Cagayan and then to the main office of
COMELEC in Manila, for approval.
Acting on the petition, Deputy Executive Director for
Operations Pio Jose Joson submitted to the
COMELEC En Banc, a Memorandum 4 dated October
8, 1996 recommending approval of the petition for
recall filed by private respondent and its signing by
other qualified voters in order to garner at least 25%
of the total number of registered voters as required
by Section 69(d) of the Local Government Code of
1991.

HERMOSISIMA, JR., J.:


Before us on certiorari is a petition seeking to annul
and set aside Resolution No. 96-2951 1 dated October
15, 1996 issued by public respondent Commission on
Elections (COMELEC) which (1) approved the Petition
for Recall filed and signed by only one registered
voter herein private respondent Ma. Aurora
Siccuan de Alban, against petitioner incumbent
Mayor Ricardo Angobung; (2) set the further signing
of said petition by the rest of the registered voters of
Tumauini, Isabela on November 9, 1996; and (3) in
case the said petition is signed by at least 25% of the
total number of registered votes in Tumauini, Isabela,
scheduled the recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary
Restraining Order 2 enjoining public respondent

In turn acting on the abovementioned Memorandum


of Deputy Executive Director Joson, the COMELEC en
bancissued the herein assailed Resolution No. 962951.
Petitioner now attacks the aforementioned resolution
as being unconstitutional and therefore invalid, on
two main grounds: (1) that the resolution approved
the Petition for Recall albeit same was signed by just
one person in violation of the statutory 25%
minimum requirement as to the number of
signatures supporting any petition for recall; and (2)
that the resolution scheduled the recall election
within one (1) year from the May 12, 1997 Barangay
Elections.
In at least three (3) urgent motions, private
respondent has sought the lifting of the Temporary

Restraining Order issued last October 25, 1996 on


the twin grounds (1) that the issue of the one-year
bar on recall elections has been resolved in the case
of Paras v. COMELEC 5, promulgated on November 4,
1996; and (2) that the procedure prescribed by
Resolution No. 96-2951 involving petition signing
upon initiation of even just one person, is no different
from that provided for in COMELEC Resolution No.
2272 which was upheld as constitutional in the 1991
cases of Sanchez, et al.v. COMELEC 6 and Evardone
v. COMELEC 7.
Private respondent is correct in saying that in the
light of our pronouncement in Paras v. COMELEC 8,
the recall election scheduled on December 2, 1996 in
the instant case cannot be said to be barred by the
May 12, 1997 Barangay Elections. In construing the
meaning of the term, "regular local election" in
Section 74 of the Local Government Code of 1991
which provides that "no recall shall take place within
one (1) year . . . immediately preceding a regular
local election," we ruled that for the time bar to
apply, the approaching regular local election must be
one where the position of the official to be recalled, is
to be actually contested and filled by the electorate.
Thus, in the instant case where the time bar is being
invoked by petitioner mayor in view of the
approaching Barangay Elections in May 1997, there
can be no application of the one year bar, hence no
invalidity may be ascribed to Resolution No. 96-2951
on this ground.
We, however, find petitioner's second ground to be
impressed with merit.
Before the enactment of the 1991 Local Government
Code, the recall of public officials voted for in popular
elections, was governed by Sections 54 to 59 of
Batas Pambansa Blg. 337, otherwise known as the
Local Government Code of 1983. Pursuant to Section
59 thereof, which states that "the Commission on
Elections shall conduct and supervise the process of
and election on recall . . . and, in pursuance thereof,
promulgate the necessary rules and regulations," the
COMELEC promulgated Resolution No. 2272 Sections
4 and 5 of which provide as follows:
Sec. 4. How instituted. The recall of an
elective provincial, city or municipal

official shall be commenced by the filing


of a duly verified notice of recall
containing the address and precinct
number of the voter filing the notice, and
the name of the official sought to be
recalled, his position, and the ground(s)
for the recall. Each notice shall refer to
only one official.
The notice shall be filed in triplicate with
the local Election Registrar if the recall
involves a city or municipal official, or
with the Provincial Election Supervisor if it
involves a provincial official, one copy of
which shall be posted upon receipt
thereof on the bulletin board in the
city/municipal hall.
If the recall involves a provincial official,
two additional copies of the notice shall
also be furnished by the voter filing the
notice to the Election Registrar of each
city and municipality in the province, one
copy of which shall be posted upon
receipt thereof on the bulletin board in the
city/municipal hall.
In every case, the voter filing the notice of
recall shall furnish a copy thereof to the
official sought to be recalled, the
Commission on Elections in Manila and
the Election Records and Statistics
Department of the Commission.
Sec. 5. Schedule and place of signing of
the petition. The Election Registrar
shall submit to the Commission on
Elections, not later than ten days from
filing of the notice of recall, the schedule
of the signing of the petition to recall for
approval and funding . . . 9
In the case of Sanchez v. COMELEC 10, petitioners
therein contended that the aforegoing "Resolution
No. 2272 is unconstitutional there being no
legislative enactment yet on [the] mechanism of
recall as mandated under Sec. 3, Art. X of the
Constitution". 11 It is true, as private respondent

asseverates, that we upheld the constitutionality of


Resolution No. 2272, but not because we found
nothing constitutionally infirm about the procedure of
allowing the initiatory recall petition to be filed by
only one person. The issue in Sanchez was not this
questioned procedure but the legal basis for the
exercise by the COMELEC of its rule-making power in
the alleged absence of a grant of such power by an
enabling statute on recall. Thus we ruled:
While it is true that Sec. 3, Art. X of the
Constitution mandates the Congress to
enact a local government code providing
among others for an effective mechanism
of recall, nothing in said provision could
be inferred the repeal of BP 337, the local
government code existing prior to the
adoption of the 1987 Constitution. Sec. 3,
Art. X of the Constitution merely provides
that the local government code to be
enacted by Congress shall be "more
responsive" than the one existing at
present. Until such time that a more
responsive and effective local government
code is enacted, the present code shall
remain in full force and effect. Thus,
under Sec. 3, Art. XVIII, (a)ll existing laws,
decrees, executive orders, proclamations,
letters of instructions and other executive
issuances not inconsistent with this
Constitution shall remain operative until
amended, repealed, or revoked.
Considering that the present local
government code (BP 337) is still in effect,
respondent COMELEC's promulgation of
Resolution No. 2272 is therefore valid and
constitutional, the same having been
issued pursuant to Sec. 59 of BP 337. It
reads:
Sec. 59. Supervision by the Commission
on Elections. The Commission on
Elections shall conduct and supervise the
process of and election on recall . . . and,
in pursuance thereof, promulgate the
necessary rules and regulations. 12

We reiterated the foregoing ruling in the case


of Evardone
v.
COMELEC 13 in this wise:
Article XVIII, Section 3 of the 1987
Constitution expressly provides
that
all
existing
laws
not
inconsistent
with
the
1987
Constitution shall remain operative,
until
amended,
repealed
or
revoked. Republic Act No. 7160
providing for the Local Government
Code of 1991, approved by the
President on 10 October 1991,
specifically repeals B.P. Blg. 337 as
provided in Sec. 534, Title Four of
said Act. But the Local Government
Code of 1991 will take effect only
on 1 January 1992 and therefore
the old Local Government Code
(B.P. Blg. 337) is still the law
applicable to the present case.
xxx xxx xxx
Chapter (Sections 54 to 59) of B.P.
Blg.
337
provides
for
the
mechanism for recall of local
elective
officials.
Section
59
expressly
authorizes
the
respondent COMELEC to conduct
and supervise the process of and
election on recall and in the
exercise
of
such
powers,
promulgate the necessary rules
and regulations. . . . Thus, pursuant
to the rule-making power vested in
respondent
COMELEC,
it
promulgated Resolution No. 2272
on 23 May 1990.
We therefore rule that Resolution
No.
2272
promulgated
by
respondent COMELEC is valid and
constitutional. Consequently, the
respondent COMELEC had the
authority to approve the petition
for recall and set the date for the
signing of said petition. 14

In Sanchez and Evardone, the COMELEC-prescribed


procedure of (1) allowing the recall petition to be
filed by at least one person or by less than 25% of
the total number of registered voters and then (2)
inviting voters to sign said petition on a date set for
that purpose, was never put to issue. As this is the
crux of the present constitutional challenge, the
proper time has come for this court to issue a
definitive ruling on the matter.
Apropos for starters is the following chronicle of the
evolution of the mechanism of recall as a mode of
removing a public officer by direct action of the
people, essayed in the case of Garcia v. COMELEC 15:
Recall is a mode of removal of a
public officer by the people before
the end of his term of office. The
people's prerogative to remove a
public officer is an incident of their
sovereign power and in the
absence of constitutional restraint,
the power is implied in all
governmental operations. Such
power has been held to be
indispensable
for
the
proper
administration of public affairs. Not
undeservedly, it is frequently
described as a fundamental right of
the people in a representative
democracy.
Recall as a mode of removal of
elective local officials made its
maiden appearance in section 2 of
Article
XI
entitled
Local
Government, viz.:
Sec.
2.
The
Batasang
Pambansa
shall
enact
a
local
government code
which may not
thereafter
be
amended except
by
a majority
vote of all its
Members,

defining a more
responsive
and
accountable local
government
structure with an
effective system
of recall . . .
The Batasang Pambansa then
enacted BP 337 entitled, "The Local
Government Code of 1983. Section
54 of its Chapter 3 provided only
one mode of initiating the recall
elections
of
local
election
officials, i.e., by petition of at least
twenty-five percent (25%) of the
total number of registered voters in
the
local
government
unit
concerned . . . .
Our legal history does not reveal
any instance when this power of
recall as provided by BP 337 was
exercised by our people.
In February, 1986, however, our
people more than exercised their
right of recall for they resorted to
revolution and they booted out of
office the highest elective officials
of the land. The successful use of
people power to remove public
officials who have forfeited the
trust of the electorate led to its firm
institutionalization of the 1987
Constitution.
Its
Article
XIII
expressly recognized the Role and
Rights
of
People's
Organizations . . . .
Section 3 of its Article X also
reiterated
the
mandate
for
Congress
to
enact
a
local
government code which "shall
provide for a more responsive and
accountable
local
government
structure instituted through a
system of decentralization with
effective mechanisms of recall,

initiative and referendum . . . . In


response to this constitutional call,
Congress
enacted
R.A. 7160,
otherwise known as the Local
Government Code of 1991, which
took effect on January 1, 1992." 16
Section 69 (d) of the Local Government Code of 1991
expressly provides that "recall of any elective . . .
municipal . . . official may also be validly initiated
upon petition of at least twenty-five percent (25%) of
the total number of registered voters in the local
government unit concerned during the election in
which the local official sought to be recalled was
elected". The law is plain and unequivocal as to what
initiates recall proceedings: only a petition of at least
25% of the total number of registered voters, may
validly initiate recall proceedings. We take careful
note of the phrase, "petition of at least twenty-five
percent (25%)" and point out that the law does not
state that the petition must be signed by at least
25% of the registered voters; rather, the petition
must be "of" or by, at least 25% of the registered
voters, i.e., the petition must be filed, not by one
person only, but by at least 25% of the total number
of registered voters. This is understandable, since the
signing of the petition is statutorily required to be
undertaken "before the election registrar or his
representative, and in the presence of a
representative of the official sought to be recalled,
and in a public place in the . . . municipality . . . " 17.
Hence, while the initiatory recall petition may not yet
contain the signatures of at least 25% of the total
number of registered voters, the petition must
contain the names of at least 25% of the total
number of registered voters in whose behalf only one
person may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the
recall petition by a number of people less than the
foregoing 25% statutory requirement, much less, the
filing thereof by just one person, as in the instant
case, since this is indubitably violative of clear and
categorical provisions of subsisting law.
Our legislators did not peg the voter requirement at
25% out of caprice or in a vacuum. They knew that
this is the requirement under a majority of the
constitutions and recall statutes in various American

states to the same extent that they were aware of


the rationale therefor. While recall was intended to
be an effective and speedy remedy to remove an
official who is not giving satisfaction to the electorate
regardless of whether or not he is discharging his full
duty to the best of his ability and as his conscience
dictates 18 it is a power granted to the people who, in
concert, desire to change their leaders for reasons
only they, as a collective, can justify. In other words,
recall must be pursued by the people, not just by one
disgruntled loser in the elections or a small
percentage of disenchanted electors. Otherwise, its
purposes as a direct remedy of the people shall be
defeated by the ill motives of a few among them
whose selfish resort to recall would destabilize the
community and seriously disrupt the running of
government.
A scrutiny of the rationale underlying the time bar
provisions and the percentage of minimum voter
requirement
in
American
recall
statutes,
unmistakably reveals the vigilance of lawmakers
against the abuse of the power of recall. For
instance, the Supreme Court of Illinois held in the
case of In Re Bower 19 that:
[t]he only logical reason which we
can ascribe for requiring the
electors to wait one year before
petitioning for a recall election is to
prevent premature action on their
part in voting to remove a newly
elected official before having had
sufficient time to evaluate the
soundness of his political policies
and decisions. We view the
statutory provision requiring the
number of petition signers to equal
at least 45% of the total votes case
in the last general election for
mayor as a further attempt to
insure that an official will not have
to defend his policies against
frivolous attacks launched by a
small percentage of disenchanted
electors. 20
Along the same lines, the Supreme Court of Colorado
held in the case of Bernzen, v. City of Boulder 21 that:

[t]he framers, by requiring that a


recall
petition
contain
the
signatures of at least 25% of all
votes cast in the last election for all
candidates for the position which
the person sought to be recalled
occupies, assured that a recall
election will not be held in
response to the wishes of a small
and
unrepresentative
minority.
However, once at least 25% of the
electorate have expressed their
dissatisfaction, the constitution
reserves the recall power to the will
of the electorate. 22
And in the case of Wallace v. Tripp 23, the Supreme
Court of Michigan echoed the foregoing posturings in
this wise:
Much of what has been said to justify a
limit upon recall clearly not provided or
contemplated by the Constitution has
revealed fears about an irresponsible
electorate . . . . A much cited Nebraska
case pertaining to a Nebraska recall
statute provides some answers which are
equally applicable to the Michigan
constitutional right of recall:
. . . Doubtless the provision
requiring 30 per cent of the
electors to sign the petition
before
the
council
[is]
compelled
to
act
was
designed to avoid such a
contingency. The Legislature
apparently assumed that
nearly one-third of the
electorate would not entail
upon the taxpayers the cost
of an election unless the
charges
made
approved
themselves
to
their
understanding
and
they
were seriously dissatisfied
with the services of the
incumbent of the office. 24

In the instant case, this court is confronted with a


procedure that is unabashedly repugnant to the
applicable law and no less such to the spirit
underlying that law. Private respondent who is a
lawyer, knows that Section 69 (d) of the Local
Government Code plainly provides that recall is
validly initiated by a petition of 25% of the total
number of registered voters. Notwithstanding such
awareness, private respondent proceeded to file the
petition for recall with only herself as the filer and
initiator. She claims in her petition that she has,
together with many others in Tumauini, Isabela, lost
confidence in the leadership of petitioner. But the
petition does not bear the names of all these other
citizens of Tumauini who have reportedly also
become anxious to oust petitioner from the post of
mayor. There is no doubt that private respondent is
truly earnest in her cause, and the very fact that she
affixed her name in the petition shows that she
claims responsibility for the seeming affront to
petitioner's continuance in office. But the same
cannot be said of all the other people whom private
respondent claims to have sentiments similar to
hers. While the people are vested with the power to
recall their elected officials, the same power is
accompanied by the concomitant responsibility to
see through all the consequences of the exercise of
such power, including rising above anonymity,
confronting the official sought to be recalled, his
family, his friends, and his supporters, and seeing the
recall election to its ultimate end. The procedure of
allowing just one person to file the initiatory recall
petition and then setting a date for the signing of the
petition, which amounts to inviting and courting the
public which may have not, in the first place, even
entertained any displeasure in the performance of
the official sought to be recalled, is not only violative
of statutory law but also tainted with an attempt to
go around the law. We can not and must not, under
any and
all circumstances, countenance a
circumvention of the explicit 25% minimum voter
requirement in the initiation of the recall process.
WHEREFORE, premises considered, the PETITION
FOR CERTIORARI is hereby GRANTED. COMELEC
Resolution No. 96-2951 is hereby DECLARED NULL
and VOID and accordingly SET ASIDE.

The RESTRAINING ORDER heretofore issued is hereby


made permanent.

Pasay City pursuant to the aforecited resolution of


the COMELEC.

Costs against private respondent.

The facts are as follows:

SO ORDERED.

Jovito O. Claudio, petitioner in G.R. No. 140560, was


the duly elected mayor of Pasay City in the May 11,
1998 elections. He assumed office on July 1, 1998.

[G.R. No. 140560. May 4, 2000]

Sometime during the second week of May 1999, the


chairs of several barangays in Pasay City gathered to
discuss the possibility of filing a petition for recall
against Mayor Claudio for loss of confidence. On May
19, 1999, at the residence of barangay chair
Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City,
several barangay chairs formed an ad hoc committee
for the purpose of convening the PRA. Richard
Advincula, private respondent in G.R. No. 140560 and
petitioner in G.R. No. 140714, was designated chair.

JOVITO
O.
CLAUDIO, petitioner, vs. COMMISSION
ON
ELECTIONS, DEPARTMENT OF BUDGET AND
MANAGEMENT, COMMISSION ON AUDIT and
RICHARD ADVINCULA, respondents.
[G.R. No. 140714. May 4, 2000]
PREPARATORY RECALL ASSEMBLY OF PASAY
CITY, herein represented by its Chairman,
RICHARD
ADVINCULA, petitioner, vs. THE
COMMISSION ON ELECTIONS, DEPARTMENT OF
BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT
and
HON.
JOVITO
O.
CLAUDIO, respondents.
DECISION
MENDOZA, J.: Calrky
These are petitions arising from the proceedings
initiated by the Preparatory Recall Assembly of Pasay
City (PRA) in the Commission on Elections in E.M. No.
99-005
entitled
IN
THE
MATTER
OF
THE
PREPARATORY RECALL ASSEMBLY RESOLUTION NO.
01, S-1999 ADOPTED ON 29 MAY 1999 FOR THE
RECALL OF MAYOR JOVITO CLAUDIO OF PASAY CITY.
G.R. No. 140560 is a petition for certiorari and
prohibition, seeking the nullification of the resolution,
[1]
dated October 18, 1999, of the COMELEC giving
due course to the petition for the recall of petitioner
Jovito O. Claudio as mayor of Pasay City. On the other
hand,
G.R.
No.
140714
is
a
petition
for mandamus filed by the PRA, represented by its
Chair, Richard Advincula, to compel the COMELEC to
set the date for the holding of recall elections in

On May 29, 1999, 1,073 members of the PRA


composed of barangay chairs, kagawads, and
sangguniang kabataan chairs of Pasay City, adopted
Resolution No. 01, S-1999, entitled RESOLUTION TO
INITIATE THE RECALL OF JOVITO O. CLAUDIO AS
MAYOR OF PASAY CITY FOR LOSS OF CONFIDENCE. In
a letter dated June 29, 1999, Advincula, as chair of
the PRA, invited the Mayor, Vice-Mayor, Station
Commander, and thirteen (13) Councilors of Pasay
City to witness the formal submission to the Office of
the Election Officer on July 2, 1999 of the petition for
recall. Mesm
As scheduled, the petition for recall was filed on July
2, 1999, accompanied by an affidavit of service of
the petition on the Office of the City Mayor. Pursuant
to the rules of the COMELEC, copies of the petition
were posted on the bulletin boards of the local
COMELEC office, the City Hall, the Police Department,
the public market at Libertad St. and Taft Avenue,
and at the entrance of the Sta. Clara Church on P.
Burgos St., all in Pasay City. Subsequently, a
verification of the authenticity of the signatures on
the resolution was conducted by Ligaya Salayon, the
election officer for Pasay City designated by the
COMELEC.

Oppositions to the petition were filed by petitioner


Jovito O. Claudio, Rev. Ronald Langub, and Roberto L.
Angeles, alleging procedural and substantive defects
in the petition, to wit: (1) the signatures affixed to
the resolution were actually meant to show
attendance at the PRA meeting; (2) most of the
signatories were only representatives of the parties
concerned who were sent there merely to observe
the proceedings; (3) the convening of the PRA took
place within the one-year prohibited period; (4) the
election case,[2] filed by Wenceslao Trinidad in this
Court, seeking the annulment of the proclamation of
petitioner Claudio as mayor of Pasay City, should first
be decided before recall proceedings against
petitioner could be filed; and (5) the recall resolution
failed to obtain the majority of all the members of
the PRA, considering that 10 were actually double
entries, 14 were not duly accredited members of the
barangays, 40 sangguniang kabataan officials had
withdrawn their support, and 60 barangay chairs
executed affidavits of retraction. Slx
In its resolution of October 18, 1999, the COMELEC
granted the petition for recall and dismissed the
oppositions against it. On the issue of whether the
PRA was constituted by a majority of its members,
the COMELEC held that the 1,073 members who
attended the May 29, 1999 meeting were more than
necessary to constitute the PRA, considering that its
records showed the total membership of the PRA was
1,790, while the statistics of the Department of
Interior and Local Government (DILG) showed that
the total membership of the PRA was 1,876. In either
case, since only a majority is required to constitute
the PRA, clearly, a majority had been obtained in
support of the recall resolution. Based on the
verification made by election officer Ligaya Salayon,
the COMELEC found the signatures of 958 members
of the PRA sufficient. On whether the pendency of
the case questioning the proclamation of petitioner
was a prejudicial question which must first be
decided before any recall election could be held, the
COMELEC ruled that it was not and that petitioner
was merely using the pendency of the case to delay
the recall proceedings. Finally, on whether the
petition for recall violated the bar on recall within one
year from the elective official's assumption of office,
the COMELEC ruled in the negative, holding that
recall is a process which starts with the filing of the
petition for recall. Since the petition was filed on July

2, 1999, exactly one year and a day after petitioner


Claudio's assumption of office, it was held that the
petition was filed on time.
Hence, these petitions. Oral arguments were held in
these cases in Baguio City on April 4, 2000, after
which the Court, by the vote of 8 to 6 of its members,
[3]
resolved to dismiss the petition in G.R. No. 140560
for lack of showing that the COMELEC committed a
grave abuse of discretion. On the other hand, the
Court unanimously dismissed the petition in G.R. No.
140714 on the ground that the issue raised therein
had become moot and academic.
We now proceed to explain the grounds for our
resolution.
In its Resolution No. 3121, dated March 9, 2000, the
COMELEC set the date of the recall elections in Pasay
City on April 15, 2000. Consequently, the petition
for mandamus in G.R. No. 140714 to compel the
COMELEC to fix a date for the recall elections in
Pasay City is no longer tenable. We are thus left with
only petitioner Claudio's action for certiorari and
prohibition.
The bone of contention in this case is 74 of the Local
Government Code (LCG)[4] which provides: Scslx
Limitations on Recall. - (a) Any elective
local official may be the subject of a
recall election only once during his term
of office for loss of confidence.
(b) No recall shall take place within one
(1) year from the date of the official's
assumption to office or one (1) year
immediately preceding a regular local
election.
As defined at the hearing of these cases on April 4,
2000, the issues are:
WHETHER, under Section 74 of the Local
Government Code of 1991 (R.A. No. 7160)
...

A. The word "recall" in paragraph (b)


covers a process which includes the
convening of the Preparatory Recall
Assembly and its approval of the recall
resolution.
B. The term "regular local election" in the
last clause of paragraph (b) includes the
election period for that regular election or
simply the date of such election.
(1)
On Whether the Word "Recall" in Paragraph (b)
of 74 of the Local Government Code Includes
the Convening of the Preparatory Recall
Assembly and the Filing by it of a Recall
Resolution
Petitioner contends that the term "recall" in 74(b)
refers to a process, in contrast to the term "recall
election" found in 74(a), which obviously refers to an
election. He claims that "when several barangay
chairmen met and convened on May 19, 1999 and
unanimously resolved to initiate the recall, followed
by the taking of votes by the PRA on May 29, 1999
for the purpose of adopting a resolution to initiate
the recall of Jovito Claudio as Mayor of Pasay City for
loss of confidence, the process of recall began" and,
since May 29, 1999 was less than a year after he had
assumed office, the PRA was illegally convened and
all proceedings held thereafter, including the filing of
the recall petition on July 2, 1999, were null and
void. Slxsc
The COMELEC, on the other hand, maintains that the
process of recall starts with the filing of the petition
for recall and ends with the conduct of the recall
election, and that, since the petition for recall in this
case was filed on July 2, 1999, exactly one year and a
day after petitioner's assumption of office, the recall
was validly initiated outside the one-year prohibited
period.
Both petitioner Claudio and the COMELEC thus agree
that the term "recall" as used in 74 refers to a
process. They disagree only as to when the process

starts for purposes of the one-year limitation in


paragraph (b) of 74.
We can agree that recall is a process which begins
with the convening of the preparatory, recall
assembly or the gathering of the signatures at least
25% of the registered voters of a local government
unit, and then proceeds to the filing of a recall
resolution or petition with the COMELEC, the
verification of such resolution or petition, the fixing of
the date of the recall election, and the holding of the
election on the scheduled date. [5] However, as used
in paragraph (b) of 74, "recall" refers to the election
itself by means of which voters decide whether they
should retain their local official or elect his
replacement. Several reasons can be cited in support
of this conclusion.
First, 74 deals with restrictions on the power of recall.
It is in fact entitled "Limitations on Recall." On the
other hand, 69 provides that "the power of recall
...shall be exercised by the registered voters of a
local government unit to which the local elective
official belongs." Since the power vested on the
electorate is not the power to initiate recall
proceedings[6] but the power to elect an official into
office, the limitations in 74 cannot be deemed to
apply to the entire recall proceedings. In other words,
the term "recall" in paragraph (b) refers only to the
recall election, excluding the convening of the PRA
and the filing of a petition for recall with the
COMELEC, or the gathering of the signatures of at
least 25 % of the voters for a petition for recall.
Thus, there may be several PRAs held (as in the case
of Bataan Province in 1993) or petitions for recall
filed with the COMELEC - there is no legal limit on the
number of times such processes may be resorted to.
These are merely preliminary steps for the purpose
of initiating a recall. The limitations in 74 apply only
to the exercise of the power of recall which is vested
in the registered voters. It is this - and not merely,
the preliminary steps required to be taken to initiate
a recall - which paragraph (b) of 74 seeks to limit by
providing that no recall shall take place within one
year from the date of assumption of office of an
elective local official.

Indeed, this is the thrust of the ruling in Garcia v.


COMELEC[7] where two objections were raised against
the legality of PRAs: (1) that even the power to
initiate recall proceedings is the sole prerogative of
the electorate which cannot be delegated to PRAs,
and (2) that by vesting this power in a PRA, the law in
effect unconstitutionally authorizes it to shorten the
term of office of incumbent elective local officials.
Both objections were dismissed on the ground that
the holding of a PRA is not the recall itself. With
respect to the first objection, it was held that it is the
power to recall and not the power to initiate recall
that the Constitution gave to the people. With
respect to the second objection, it was held that a
recall resolution "merely sets the stage for the official
concerned before the tribunal of the people so he can
justify why he should be allowed to continue in office.
[But until] the people render their sovereign
judgment, the official concerned remains in office . . .
." Sdaadsc
If these preliminary proceedings do not produce a
decision by the electorate on whether the local
official concerned continues to enjoy the confidence
of the people, then, the prohibition in paragraph (b)
against the holding of a recall, except one year after
the official's assumption of office, cannot apply to
such proceedings.
The second reason why the term "recall" in
paragraph (b) refers to recall election is to be found
in the purpose of the limitation itself. There are two
limitations in paragraph (b) on the holding of recalls:
(1) that no recall shall take place within one year
from the date of assumption of office of the official
concerned, and (2) that no recall shall take place
within one year immediately preceding a regular
local election.
The purpose of the first limitation is to provide a
reasonable basis for judging the performance of an
elective local official. In the Bower case[8] cited by
this Court in Angobung v. COMELEC,[9] it was held
that "The only logical reason which we can ascribe
for requiring the electors to wait one year
before petitioning for a recall election is to prevent
premature action on their part in voting to remove a
newly elected official before having had sufficient
time to evaluate the soundness of his policies and

decisions." The one-year limitation was reckoned as


of the filing of a petition for recall because the
Municipal Code involved in that case expressly
provided that "no removal petition shall be filed
against any officer or until he has actually held office
for at least twelve months." But however the period
of prohibition is determined, the principle announced
is that the purpose of the limitation is to provide a
reasonable basis for evaluating the performance of
an elective local official. Hence, in this case, as long
as the election is held outside the one-year period,
the preliminary proceedings to initiate a recall can be
held even before the end of the first year in office of
a local official.
It cannot be argued that to allow recall proceedings
to be initiated before the official concerned has been
in office for one-year would be to allow him to be
judged without sufficient basis. As already stated, it
is not the holding of PRA nor the adoption of recall
resolutions that produces a judgment on the
performance of the official concerned; it is the vote
of the electorate in the Election that does. Therefore,
as long as the recall election is not held before the
official concerned has completed one year in office,
he will not be judged on his performance
prematurely.Rtcspped
Third, to construe the term "recall" in paragraph (b)
as including the convening of the PRA for the purpose
of discussing the performance in office of elective
local officials would be to unduly restrict the
constitutional right of speech and of assembly of its
members. The people cannot just be asked on the
day of the election to decide on the performance of
their officials. The crystallization and formation of an
informed public opinion takes time. To hold,
therefore, that the first limitation in paragraph (b)
includes the holding of assemblies for the exchange
of ideas and opinions among citizens is to unduly
curtail one of the most cherished rights in a free
society. Indeed, it is wrong to assume that such
assemblies will always eventuate in a recall election.
To the contrary, they may result in the expression of
confidence in the incumbent.
Our esteemed colleague Justice Puno says in his
dissent that the purpose of the one-year period in
paragraph (b) is to provide the local official

concerned a "period of repose" during which "[his]


attention should not be distracted by any
impediment, especially by disturbance due to
political partisanship." Unfortunately, the law cannot
really provide for a period of honeymoon or
moratorium in politics. From the day an elective
official assumes office, his acts become subject to
scrutiny and criticism, and it is not always easy to
determine when criticism of his performance is
politically motivated and when it is not. The only
safeguard against the baneful and enervating effects
of partisan politics is the good sense and self
restraint of the people and its leaders against such
shortcomings of our political system. A respite from
partisan politics may, have the incidental effect of
providing respite from partisanship, but that is not
really the purpose of the limitation on recall under
the law. The limitation is only intended to provide a
sufficient basis for evaluating and judging the
performance of an elected local official.
In any event, it is argued that the judgments of PRAs
are not "as politically unassailable as recalls initiated
directly by the people." Justice Puno cites the
"embarrassing repudiation by the people of
[Kaloocan City's] Preparatory Recall Assembly" when,
instead of ousting Mayor Rey Malonzo, they reelected
him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in
the ensuing election the local official whose recall is
sought is actually reelected. Laws converting
municipalities into cities and providing for the
holding of plebiscites during which the question of
cityhood is submitted to the people for their approval
are not always approved by the people. Yet, no one
can say that Congress is not a good judge of the will
of the voters in the locality. In the case of recall
elections in Kaloocan City, had it been shown that
the PRA was resorted to only because those behind
the move to oust the incumbent mayor failed to
obtain the signatures of 25% of the voters of that city
to a petition for his recall, there may be some
plausibility for the claim that PRAs are not as good a
gauge of the people's will as are the 25 % of the
voters.

Indeed, recalls initiated directly by 25% of the


registered voters of a local government unit cannot
be more representative of the sentiments of the
people than those initiated by PRAs whose members
represent the entire electorate in the local
government unit. Voters who directly initiate recalls
are just as vulnerable to political maneuverings or
manipulations as are those composing PRAs. Korte
The other point regarding Justice Punos claim is that
the question here is not whether recalls initiated by
25% of the voters are better. The issue is whether
the one-year period of limitation in paragraph (b)
includes the convening of the PRA. Given that
question, will convening the PRA outside this period
make it any more representative of the people, as
the petition filed by 25 % of the registered voters is
claimed to be?

On Whether the Phrase "Regular Local


Election" in the Same Paragraph (b) of 74 of
the Local Government Code includes the
Election Period for that Regular Election or
Simply the Date of Such Election
Petitioner contends, however, that the date set by
the COMELEC for the recall election is within the
second period of prohibition in paragraph (b). He
argues that the phrase "regular local elections" in
paragraph (b) does not only mean "the day of the
regular local election" which, for the year 2001 is
May 14, but the election period as well, which is
normally at least forty five (45) days immediately
before the day of the election. Hence, he contends
that beginning March 30, 2000, no recall election
may be held. Sclaw
This contention is untenable.

To sum up, the term "recall" in paragraph (b) refers


to the recall election and not to the preliminary
proceedings to initiate recall 1. Because 74 speaks of limitations on "recall" which,
according to 69, is a power which shall be exercised
by the registered voters of a local government unit.
Since the voters do not exercise such right except in
an election, it is clear that the initiation of recall
proceedings is not prohibited within the one-year
period provided in paragraph (b);
2. Because the purpose of the first limitation in
paragraph (b) is to provide voters a sufficient basis
for judging an elective local official, and final judging
is not done until the day of the election; and
3. Because to construe the limitation in paragraph (b)
as including the initiation of recall proceedings would
unduly curtail freedom of speech and of assembly
guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15,
2000, more than one year after petitioner assumed
office as mayor of that city, we hold that there is no
bar to its holding on that date.
(2)

The law is unambiguous in providing that "[n]o recall


shall take place within . . . one (1) year immediately
preceding a regular local election." Had Congress
intended this limitation to refer to the campaign
period, which period is defined in the Omnibus
Election Code,[10] it could have expressly said so.
Moreover, petitioner's interpretation would severely
limit the period during which a recall election may be
held. Actually, because no recall election may be
held until one year after the assumption of office of
an elective local official, presumably on June 30
following his election, the free period is only the
period from July 1 of the following year to about the
middle of May of the succeeding year. This is a period
of only nine months and 15 days, more or less. To
construe the second limitation in paragraph (b) as
including the campaign period would reduce this
period to eight months. Such an interpretation must
be rejected, because it would devitalize the right of
recall which is designed to make local government
units" more responsive and accountable." Sclex
Indeed, there is a distinction between election period
and campaign period. Under the Omnibus Election
Code,[11] unless otherwise fixed by the COMELEC, the
election period commences ninety (90) days before
the day of the election and ends thirty (30) days

thereafter. Thus, to follow petitioner's interpretation


that the second limitation in paragraph (b) includes
the "election period" would emasculate even more a
vital right of the people.

course. The order of the COMELEC embodying the


stipulations of the parties and defining the issues to
be resolved does not include the issue now being
raised by petitioner. Xlaw

To recapitulate the discussion in parts 1 and 2, 74


imposes limitations on the holding of recall elections.
First, paragraph (a) prohibits the holding of such
election more than once during the term of office of
an elective local official. Second, paragraph (b)
prohibits the holding of such election within one year
from the date the official assumed office. And third,
paragraph (b) prohibits the holding of a recall
election within one year immediately preceding a
regular local election. As succinctly stated in Paras v.
COMELEC,[12] "[p]aragraph (b) construed together
with paragraph (a) merely designates the period
when such elective local official may be subject to
recall election, that is, during the second year of
office."

Although the word "Attendance" appears at the top


of the page, it is apparent that it was written by
mistake because it was crossed out by two parallel
lines drawn across it. Apparently, it was mistaken for
the attendance sheet which is a separate document.
It is absurd to believe that the 74 members of the
PRA who signed the recall resolution signified their
attendance at the meeting twice. It is more probable
to believe that they signed pages 94-104 to signify
their concurrence in the recall resolution of which the
pages in question are part.

(3)
On Whether the Recall RESOLUTION was
Signed by a Majority of the PRA and Duly
Verified
Petitioner alleges other grounds for seeking the
annulment of the resolution of the COMELEC ordering
the holding of a recall election. He contends that a
majority of the signatures of the members of the PRA
was not obtained because 74 members did not really
sign the recall resolution. According to petitioner, the
74 merely signed their names on pages 94-104 of
the resolution to signify their attendance and not
their concurrence. Petitioner claims that this is shown
by the word "Attendance" written by hand at the top
of the page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is
being raised for the first time in this case. It was not
raised before the COMELEC, in which the claim made
by petitioner was that some of the names in the
petition were double entries, that some members
had withdrawn their support for the petition, and that
Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved
before the petition for recall could be given due

The other point raised by petitioner is that the recall


petition filed in the COMELEC was not duly verified,
because Atty. Nelson Ng, who notarized it, is not
commissioned as notary public for Pasay City but for
Makati City. As in the case of the first claim, this issue
was not raised before the COMELEC itself. It cannot,
therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack
of merit, while the petition in G.R. No. 140714 is
DISMISSED for having been rendered moot and
academic.
SO ORDERED.

WILFREDO M. CATU, A.C. No. 5738


Complainant, Vs. ATTY. VICENTE G. RELLOSA,
Respondent
RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a
lot[1] and the building erected thereon located at 959
San Andres Street, Malate, Manila. His mother and
brother, Regina Catu and Antonio Catu, contested the
possession of Elizabeth C. Diaz-Catu[2] and Antonio
Pastor[3] of one of the units in the building. The latter
ignored demands for them to vacate the premises.
Thus, a complaint was initiated against them in
the Lupong Tagapamayapa of Barangay 723, Zone
79 of the 5th District of Manila[4] where the parties
reside.
Respondent,
as punong
barangay of
Barangay 723, summoned the parties to conciliation
meetings.[5] When the parties failed to arrive at an
amicable
settlement,
respondent
issued
a
certification for the filing of the appropriate action in
court.
Thereafter, Regina and Antonio filed a complaint for
ejectment against Elizabeth and Pastor in the
Metropolitan Trial Court of Manila, Branch 11.
Respondent entered his appearance as counsel for
the defendants in that case. Because of this,
complainant
filed
the
instant
administrative
complaint,[6] claiming that respondent committed an
act of impropriety as a lawyer and as a public officer
when he stood as counsel for the defendants despite
the fact that he presided over the conciliation
proceedings between the litigants as punong
barangay.
In his defense, respondent claimed that one of his
duties as punong barangay was to hear complaints
referred to the barangays Lupong Tagapamayapa. As
such, he heard the complaint of Regina and Antonio
against Elizabeth and Pastor. As head of the Lupon,
he performed his task with utmost objectivity,
without bias or partiality towards any of the parties.
The parties, however, were not able to amicably
settle their dispute and Regina and Antonio filed the
ejectment case. It was then that Elizabeth sought his
legal assistance. He acceded to her request. He
handled her case for free because she was financially
distressed and he wanted to prevent the commission
of a patent injustice against her.
The complaint was referred to the Integrated Bar of
the Philippines (IBP) for investigation, report and

recommendation. As there was no factual issue to


thresh out, the IBPs Commission on Bar Discipline
(CBD) required the parties to submit their respective
position papers. After evaluating the contentions of
the parties, the IBP-CBD found sufficient ground to
discipline respondent.[7]
According to the IBP-CBD, respondent
admitted that, as punong barangay, he presided over
the conciliation proceedings and heard the complaint
of Regina and Antonio against Elizabeth and Pastor.
Subsequently, however, he represented Elizabeth
and Pastor in the ejectment case filed against them
by Regina and Antonio. In the course thereof, he
prepared and signed pleadings including the answer
with counterclaim, pre-trial brief, position paper and
notice of appeal. By so doing, respondent violated
Rule 6.03 of the Code of Professional Responsibility:
Rule 6.03 A lawyer shall
not, after leaving government
service, accept engagement or
employment in connection with
any matter in which he intervened
while in said service.
Furthermore,
as
an
elective
official,
respondent contravened the prohibition under
Section 7(b)(2) of RA 6713:[8]
SEC. 7. Prohibited Acts
and Transactions. In addition to
acts and omissions of public
officials and employees now
prescribed in the Constitution and
existing laws, the following shall
constitute prohibited acts and
transactions of any public official
ands employee and are hereby
declared to be unlawful:
xxx xxx xxx
(b) Outside
employment
and
other activities related thereto.
Public officials and employees
during their incumbency shall not:
xxx xxx xxx
(2) Engage
in
the
private
practice
of
profession
unless
authorized
by
the
Constitution or law,
provided
that
such
practice will not conflict
or tend to conflict with

their official functions;


xxx (emphasis supplied)
According to the IBP-CBD, respondents
violation of this prohibition constituted a breach of
Canon 1 of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL
UPHOLD
THE
CONSTITUTION, OBEY THE LAWS
OF
THE
LAND, PROMOTE
RESPECT FOR LAW AND LEGAL
PROCESSES. (emphasis supplied)
For
these
infractions,
the
IBP-CBD
recommended the respondents suspension from the
practice of law for one month with a stern warning
that the commission of the same or similar act will be
dealt with more severely.[9] This was adopted and
approved by the IBP Board of Governors.[10]
We modify the foregoing findings regarding
the transgression of respondent as well as the
recommendation on the imposable penalty.
RULE 6.03 OF THE CODE OF PROFESSIONAL
RESPONSIBILITY APPLIES ONLY TO FORMER
GOVERNMENT LAWYERS
Respondent cannot be found liable for
violation of Rule 6.03 of the Code of Professional
Responsibility. As worded, that Rule applies only to a
lawyer who has left government service and in
connection with any matter in which he intervened
while in said service. In PCGG v. Sandiganbayan,
[11]
we ruled that Rule 6.03 prohibits former
government lawyers from accepting engagement
or employment in connection with any matter in
which [they] had intervened while in said service.
Respondent was an incumbent punong
barangay at the time he committed the act
complained of. Therefore, he was not covered by that
provision.
SEC 90 OF RA7160 , NOT SEC 7(B)(2) OF RA
6713 GOVERNS THE PRACTICE OF PROFESSION
OF ELECTIVE LOCAL GOVERNMENT OFFICIALS
Section 7(b)(2) of RA 6713 prohibits public
officials and employees, during their incumbency,
from engaging in the private practice of their
profession unless authorized by the Constitution or
law, provided that such practice will not conflict or
tend to conflict with their official functions. This is the
general law which applies to all public officials and
employees.

For elective local government officials,


Section 90 of RA 7160[12] governs:
SEC.
90. Practice
of
Profession. (a) All governors, city
and
municipal
mayors
are
prohibited from practicing their
profession or engaging in any
occupation
other
than
the
exercise of their functions as local
chief executives.
(b) Sanggunian members
may
practice
their
professions, engage in
any occupation, or teach
in schools except during
session hours: Provided,
That sanggunian member
s who are members of
the Bar shall not:
(1) Appear as
counsel before any court
in any civil case wherein
a local government unit
or any office, agency, or
instrumentality of the
government
is
the
adverse party;
(2) Appear as
counsel in any criminal
case wherein an officer or
employee of the national
or local government is
accused of an offense
committed in relation to
his office;
(3) Collect any
fee for their appearance
in
administrative
proceedings involving the
local government unit of
which he is an official;
and
(4) Use property
and personnel of the
Government except when
the sanggunian member
concerned is defending
the
interest
of
the
Government.
(c) Doctors of medicine
may
practice
their
profession even during
official hours of work only
on
occasions
of
emergency: Provided,
That
the
officials
concerned do not derive

monetary compensation
therefrom.
This is a special provision that applies
specifically to the practice of profession by elective
local officials. As a special law with a definite scope
(that is, the practice of profession by elective local
officials), it constitutes an exception to Section 7(b)
(2) of RA 6713, the general law on engaging in the
private practice of profession by public officials and
employees. Lex specialibus derogat generalibus.[13]
Under RA 7160, elective local officials of
provinces, cities, municipalities and barangays are
the following: the governor, the vice governor and
members
of
thesangguniang
panlalawigan for
provinces; the city mayor, the city vice mayor and
the members of the sangguniang panlungsod for
cities; the municipal mayor, the municipal vice mayor
and the members of the sangguniang bayan for
municipalities and the punong barangay, the
members of the sangguniang barangay and the
members
of
the sangguniang
kabataan for
barangays.
Of
these
elective
local
officials,
governors, city mayors and municipal mayors are
prohibited from practicing their profession or
engaging in any occupation other than the exercise
of their functions as local chief executives. This is
because they are required to render full time service.
They should therefore devote all their time and
attention to the performance of their official duties.
On
the
other
hand,
members
of
the sangguniang
panlalawigan, sangguniang
panlungsod or sangguniang bayan may practice their
professions, engage in any occupation, or teach in
schools except during session hours. In other words,
they may practice their professions, engage in any
occupation, or teach in schools outside their session
hours. Unlike governors, city mayors and municipal
mayors, members
of
the sangguniang
panlalawigan, sangguniang
panlungsod or sangguniang bayan are required to
hold regular sessions only at least once a week.
[14]
Since the law itself grants them the authority to
practice their professions, engage in any occupation
or teach in schools outside session hours, there is no
longer any need for them to secure prior permission
or authorization from any other person or office for
any of these purposes.
While, as already discussed, certain local
elective officials (like governors, mayors, provincial
board members and councilors) are expressly
subjected to a total or partial proscription to practice

their profession or engage in any occupation, no such


interdiction is made on the punong barangay and the
members of the sangguniang barangay.Expressio
unius est exclusio alterius.[15] Since they are excluded
from any prohibition, the presumption is that they
are allowed to practice their profession. And this
stands to reason because they are not mandated to
serve full time. In fact, the sangguniang barangay is
supposed to hold regular sessions only twice a
month.[16]
Accordingly,
as punong
barangay,
respondent was not forbidden to practice his
profession. However, he should have procured prior
permission or authorization from the head of his
Department, as required by civil service regulations.
A LAWYER IN THE GOVT SERVICE WHO IS NOT
PROHIBITED TO PRACTICE LAW MUST SECURE
PRIOR AUTHORITY FROM THE HEAD OF HIS
DEPARTMENT
A civil service officer or employee whose
responsibilities do not require his time to be fully at
the disposal of the government can engage in the
private practice of law only with the written
permission of the head of the department concerned.
[17]
Section 12, Rule XVIII of the Revised Civil Service
Rules provides:
Sec. 12. No officer or
employee
shall
engage
directly in any private business,
vocation, or profession or be
connected with any commercial,
credit, agricultural, or industrial
undertaking without a written
permission from the head of
the Department: Provided, That
this prohibition will be absolute in
the case of those officers and
employees whose duties and
responsibilities require that their
entire time be at the disposal of
the
Government; Provided,
further, That if an employee is
granted permission to engage in
outside activities, time so devoted
outside of office hours should be
fixed by the agency to the end
that it will not impair in any way
the efficiency of the officer or
employee: And provided, finally,
that no permission is necessary in
the case of investments, made by
an officer or employee, which do
not involve real or apparent

conflict between
his
private
interests and public duties, or in
any way influence him in the
discharge of his duties, and he
shall not take part in the
management of the enterprise or
become an officer of the board of
directors. (emphasis supplied)
As punong barangay, respondent should
have therefore obtained the prior written permission
of the Secretary of Interior and Local Government
before he entered his appearance as counsel for
Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12,
Rule XVIII of the Revised Civil Service Rules
constitutes a violation of his oath as a lawyer: to
obey the laws. Lawyers are servants of the law, vires
legis, men of the law. Their paramount duty to
society is to obey the law and promote respect for it.
To underscore the primacy and importance of this
duty, it is enshrined as the first canon of the Code of
Professional Responsibility.
In acting as counsel for a party without first securing
the required written permission, respondent not only
engaged in the unauthorized practice of law but also
violated civil service rules which is a breach of Rule
1.01 of the Code of Professional Responsibility:
Rule 1.01 A lawyer shall
not
engage
in
unlawful,
dishonest,
immoral
or
deceitful conduct.
(emphasis
supplied)
For not living up to his oath as well as for not
complying with the exacting ethical standards of the
legal profession, respondent failed to comply with
Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT
ALL
TIMES
UPHOLD
THE
INTEGRITY AND THE DIGNITY
OF
THE
LEGAL
PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED
BAR. (emphasis supplied)
Indeed, a lawyer who disobeys the law
disrespects it. In so doing, he disregards legal ethics
and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers
may be eroded by the irresponsible and improper
conduct of a member of the bar.[18] Every lawyer

should act and comport himself in a manner that


promotes public confidence in the integrity of the
legal profession.[19]
A member of the bar may be disbarred or
suspended from his office as an attorney for violation
of the lawyers oath[20] and/or for breach of the ethics
of the legal profession as embodied in the Code of
Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is
hereby found GUILTY of professional misconduct for
violating his oath as a lawyer and Canons 1 and 7
and Rule 1.01 of the Code of Professional
Responsibility. He is therefore SUSPENDED from
the practice of law for a period of six months
effective from his receipt of this resolution. He is
sternly WARNED that any repetition of similar acts
shall be dealt with more severely.
Respondent is strongly advised to look up and take to
heart the meaning of the word delicadeza.
Let a copy of this resolution be furnished the Office of
the Bar Confidant and entered into the records of
respondent Atty. Vicente G. Rellosa. The Office of the
Court Administrator shall furnish copies to all the
courts of the land for their information and guidance.
SO ORDERED.

REGALADO, J.:
Petitioner questions and seeks the nullification of the
resolution of respondent Court of Appeals in CA-G.R.
SP. No. 27504 dated March 31, 1992, dismissing the
petition for having been filed by a private counsel, as
well as its succeeding resolution dated June 9, 1992,
denying petitioner's motion for reconsideration. 1
The records show that on March 17, 1989, the
Regional Trial Court of Tanay, Rizal, Branch 80,
rendered judgment in Civil Case No. 057-T in favor of
plaintiff, now herein petitioner Municipality of Pililla,
Rizal, against defendant, now herein private
respondent Philippine Petroleum Corporation (PPC,
for short), ordering therein defendant to pay said
plaintiff
(1)
the
amount
of
P5,301,385.00
representing the tax on business due from the
defendant under Section 9(A) of Municipal Tax
Ordinance No. 1 of said municipality for the period
from 1979 to 1983, inclusive, plus such amount of
tax as may accrue until final determination of the
case; (2) storage permit fee in the amount of
P3,321,730.00 due from the defendant under Section
10,
paragraph
Z(13)
(b-1-c) of the same municipal tax ordinance for the
period from 1975 to 1986, inclusive, plus the amount
of said fee that may accrue until final determination
of the case; (3) mayor's permit fee due from the
defendant under Section 10, paragraph (P) (2) of said
municipal tax ordinance from 1975 to 1984,
inclusive, in the amount of P12,120.00, plus such
amount of the same fee as may accrue until final
determination of the case; (4) sanitary inspection fee
in the amount of P1,010.00 for the period from 1975
to 1984, plus the amount of this fee that may accrue
until final determination of the case; and (5) the
costs of suit. 2

G.R. No. 105909 June 28, 1994


MUNICIPALITY OF PILILLA, RIZAL, petitioner,
vs.
HON. COURT OF APPEALS, HON. ARTURO A.
MARAVE, as Presiding Judge, Regional Trial
Court,
Branch
78,
Morong,
Rizal,
and
PHILIPPINE
PETROLEUM
CORPORATION, respondents.

On June 3, 1991, in G.R. No. 90776 this Court


affirmed
the
aforesaid
judgment,
with
the
modification that business taxes accruing prior to
1976 are not to be paid by PPC because the same
have prescribed, and that storage fees are not also
to be paid by PPC since the storage tanks are owned
by PPC and not by the municipality and, therefore,
cannot be the bases of a charge for service by the
municipality. 3 This judgment became final and

executory on July 13, 1991 and the records were


remanded to the trial court for execution.
On October 14, 1991, in connection with the
execution of said judgment, Atty. Felix E. Mendiola
filed a motion in behalf of plaintiff municipality with
the Regional Trial Court, Branch 78, Morong,
Rizal* for the examination of defendant corporation's
gross sales for the years 1976 to 1978 and 1984 to
1991 for the purpose of computing the tax on
business imposed under the Local Tax Code, as
amended. On October 21, 1991, defendant
corporation filed a manifestation to the effect that on
October 18, 1991, Pililla Mayor Nicomedes Patenia
received from it the sum of P11,457,907.00 as full
satisfaction of the above-mentioned judgment of the
Supreme Court, as evidence by the release and
quitclaim documents executed by said mayor.
Accordingly, on October 31, 1991 the court below
issued an order denying plaintiff municipality's
motion for examination and execution of judgment
on the ground that the judgment in question had
already been satisfied. 4
Thereafter, on November 21, 1991 Atty. Mendiola
filed a motion for reconsideration of the court's
aforesaid order of October 31, 1991, claiming that
the total liability of defendant corporation to plaintiff
municipality amounted to P24,176,599.00, while the
amount involved in the release and quitclaim
executed by Mayor Patenia was only P12,718,692;
and that the said mayor could not waive the balance
which represents the taxes due under the judgment
to the municipality and over which judgment the law
firm of Atty. Mendiola had registered two liens for
alleged consultancy services of 25% and attorneys'
fees of 25% which, when quantified and added,
amount
to
more
than
P12
million.
On January 28,1992, the trial court denied the
aforesaid motion for reconsideration. 5
On February 18, 1992, Atty. Mendiola, again
ostensibly in behalf of herein petitioner municipality,
filed a petition forcertiorari with us, which petition we
referred to the Court of Appeals for proper disposition
and was docketed therein as CA-G.R. SP No.
27504. 6 On March 2, 1992, respondent PPC filed a
motion questioning Atty. Mendiola's authority to
represent petitioner municipality. 7 Consequently, on

March 31, 1992 respondent Court of Appeals


dismissed the petition for having been filed by a
private counsel in violation of law and jurisprudence,
but without prejudice to the filing of a similar petition
by the Municipality of Pililla through the proper
provincial or municipal legal officer. 8 Petitioner filed a
motion for reconsideration which was denied by the
Court of Appeals in its resolution of June 9, 1992. 9
Petitioner is once again before us with the following
assignment of errors:
1. It is an error for the Court of
Appeals
to
consider
private
respondent's new issue raised for
the first time on appeal, as it could
no longer be considered on appeal,
because it was never been (sic)
raised in the court below.
2. It is an error for the Court of
Appeals in dismissing (sic) the
instant petition with alternative
remedy of filing similar petition as
it is a departure from established
jurisprudence.
3. It is an error for the Court of
Appeals to rule that the filing of the
instant petition by the private
counsel is in violation of law and
jurisprudence. 10
We find the present petition devoid of merit.
The Court of Appeals is correct in holding that Atty.
Mendiola has no authority to file a petition in behalf
of and in the name of the Municipality of Pililla. The
matter of representation of a municipality by a
private attorney has been settled in Ramos vs. Court
of Appeals, et al., 11 and reiterated in Province of
Cebu
vs. Intermediate
Appellate
Court,
et
al., 12 where we ruled that private attorneys cannot
represent a province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code
provides:

Section 1683. Duty of fiscal to


represent provinces and provincial
subdivisions in litigation. The
provincial fiscal shall represent the
province and any municipality or
municipal district thereof in any
court, except in cases whereof
original jurisdiction is vested in the
Supreme Court or in cases where
the municipality or municipal
district in question is a party
adverse
to
the
provincial
government or to some other
municipality or municipal district in
the same province. When the
interests
of
a
provincial
government and of any political
division thereof are opposed, the
provincial fiscal shall act on behalf
of the province.
When the provincial fiscal is
disqualified
to
serve
any
municipality or other political
subdivision of a province, a special
attorney may be employed by its
council. 13
Under the above provision, complemented by Section
3, Republic Act No. 2264, the Local Autonomy
Law, 14 only the provincial fiscal and the municipal
attorney can represent a province or municipality in
their lawsuits. The provision is mandatory. The
municipality's authority to employ a private lawyer is
expressly limited only to situations where the
provincial fiscal is disqualified to represent it. 15
For the aforementioned exception to apply, the fact
that the provincial fiscal was disqualified to handle
the
municipality's
case
must
appear
on
record. 16 In the instant case, there is nothing in the
records to show that the provincial fiscal is
disqualified to act as counsel for the Municipality of
Pililla on appeal, hence the appearance of herein
private counsel is without authority of law.
The submission of Atty. Mendiola that the exception
is broad enough to include situations wherein the
provincial fiscal refuses to handle the case cannot be

sustained. The fiscal's refusal to represent the


municipality is not a legal justification for employing
the services of private counsel. Unlike a practicing
lawyer who has the right to decline employment, a
fiscal cannot refuse to perform his functions on
grounds not provided for by law without violating his
oath of office. Instead of engaging the services of a
special attorney, the municipal council should
request the Secretary of Justice to appoint an acting
provincial fiscal in place of the provincial fiscal who
has declined to handle and prosecute its case in
court, pursuant to Section 1679 of the Revised
Administrative Code.17
It is also significant that the lack of authority of
herein
counsel,
Atty. Mendiola, was even raised by the municipality
itself in its comment and opposition to said counsel's
motion for execution of his lien, which was filed with
the court a quo by the office of the Provincial
Prosecutor of Rizal in behalf of said municipality. 18
The contention of Atty. Mendiola that private
respondent cannot raise for the first time on appeal
his lack of authority to represent the municipality is
untenable. The legality of his representation can be
questioned at any stage of the proceedings. In the
cases hereinbefore cited, 19 the issue of lack of
authority of private counsel to represent a
municipality was only raised for the first time in the
proceedings for the collection of attorney's fees for
services rendered in the particular case, after the
decision in that case had become final and executory
and/or had been duly executed.
Furthermore, even assuming that the representation
of the municipality by Atty. Mendiola was duly
authorized, said authority is deemed to have been
revoked by the municipality when the latter, through
the municipal mayor and without said counsel's
participation, entered into a compromise agreement
with herein private respondent with regard to the
execution of the judgment in its favor and thereafter
filed personally with the court below two pleadings
entitled and constitutive of a "Satisfaction of
Judgment" and a "Release and Quitclaim". 20
A client, by appearing personally and presenting a
motion by himself, is considered to have impliedly

dismissed his lawyer. Herein counsel cannot pretend


to be authorized to continue representing the
municipality since the latter is entitled to dispense
with his services at any time. Both at common law
and under Section 26, Rule 138 of the Rules of Court,
a client may dismiss his lawyer at any time or at any
stage of the proceedings, and there is nothing
to prevent a litigant from appearing before the court
to conduct his own litigation. 21
The client has also an undoubted right to
compromise a suit without the intervention of his
lawyer. 22 Even the lawyers' right to fees from their
clients may not be invoked by the lawyers
themselves as a ground for disapproving or holding
in abeyance the approval of a compromise
agreement. The lawyers concerned can enforce their
rights in the proper court in an appropriate
proceeding in accordance with the Rules of Court, but
said rights may not be used to prevent the approval
of the compromise agreement. 23
The apprehension of herein counsel that it is
impossible that the municipality will file a similar
petition, considering that the mayor who controls its
legislative body will not take the initiative, is not only
conjectural but without factual basis. Contrary to his
pretensions, there is presently a manifestation and
motion pending with the trial court filed by the
aforesaid municipal mayor for the withdrawal of the
"Satisfaction of Judgment" and the "Release and
Quitclaim"24 previously filed in the case therein as
earlier mentioned.
WHEREFORE, the petition at bar is DENIED for lack of
merit and the judgment of respondent Court of
Appeals is hereby AFFIRMED.
SO ORDERED.

Baliuag Market Vendors Association, Inc. filed a


petition before the court a quo docketed as Civil Case
No. 264-M-9 for the Declaration of Nullity of Municipal
Ordinances No. 91 (1976) and No. 7 (1990) and the
contract of lease over a commercial arcade to be
constructed in the municipality of Baliuag, Bulacan.
[G.R. No. 99425. March 3, 1997]
ANTONIO C. RAMOS, ROSALINDA M. PEREZ,
NORMA C. CASTILLO and BALIUAG MARKET
VENDORS
ASSOCIATION,
INC., petitioners,
vs. COURT OF APPEALS, HON. CAMILO O.
MONTESA, JR., in his capacity as Presiding
Judge of the Regional Trial Court of Bulacan,
Branch
19,
and
MUNICIPALITY
OF
BALIUAG, respondents.
DECISION
PANGANIBAN, J.:
Who has the legal authority to represent a
municipality in lawsuits? If an unauthorized lawyer
represents a municipality, what is the effect of his
participation in the proceedings? Parenthetically,
does a motion to withdraw the appearance of the
unauthorized counsel have to comply with Rule 15 of
the Rules of Court regarding notice and hearing of
motions?
These questions are answered by this Court in
resolving this petition for review under Rule 45 of the
Rules of Court of the Decision [1] of public
respondent[2] in CA-G.R. SP No. 23594 promulgated
on March 15, 1991, which denied due course to and
dismissed the petition therein. Also assailed is the
Resolution[3] of public respondent promulgated on
May 9, 1991, which denied the motion for
reconsideration for lack of merit.
The Facts
The facts as found by public respondent are
undisputed, to wit:[4]
"On April 18, 1990, petitioners Antonio C. Ramos,
Rosalinda M. Perez, Norma C. Castillo, and the

On April 27, 1980, during the hearing on the


petitioners' motion for the issuance of preliminary
injunction, the Provincial Fiscal appeared as counsel
for respondent Municipality of Baliuag, which
opposed the petition. Whereupon, a writ of
preliminary injunction was issued by the court a
quo on May 9, 1990.
Meanwhile, on May 3, 1990, the Provincial Fiscal and
the Provincial Attorney, Oliviano D. Regalado, filed an
Answer in (sic) behalf of respondent municipality.
At the pre-trial conference scheduled on May 28,
1990, Atty. Roberto B. Romanillos appeared,
manifesting that he was counsel for respondent
municipality. On the same date, and on June 15,
1990, respectively, Atty. Romanillos filed a motion to
dissolve injunction and a motion to admit an
Amended Answer with motion to dismiss.
On June 18, 1990, Provincial Attorney Oliviano D.
Regalado appeared as collaborating counsel of Atty.
Romanillos. The Provincial Fiscal did not appear. It
was Atty. Romanillos who submitted the Reply topetitioners' Opposition to respondents' motion to
dissolve injunction. It was also Atty. Romanillos who
submitted a written formal offer of evidence on July
17, 1990 for respondent municipality.
During the hearing on August 10, 1990, petitioners
questioned the personality of Atty. Romanillos to
appear as counsel of (sic) the respondent
municipality, which opposition was reiterated on
August 15, 1990, and was put in writing in
petitioners' motion of August 20, 1990 to disqualify
Atty. Romanillos from appearing as counsel for
respondent municipality and to declare null and void
the proceedings participated in and undertaken by
Atty. Romanillos.

Meanwhile, Atty. Romanillos and Atty. Regalado filed


a joint motion dated August 22, 1990 stating, among
others, that Atty. Romanillos was withdrawing as
counsel for respondent municipality and that Atty.
Regalado, as his collaborating counsel for respondent
municipality, is adopting the entire proceedings
participated in/undertaken by Atty. Romanillos.
On September 19, 1990 respondent Judge issued the
Order now being assailed which, as already stated,
denied petitioners' motion to disqualify Atty.
Romanillos as counsel for respondent municipality
and to declare null and void the proceedings
participated in by Atty. Romanillos; and on the other
hand, granted Atty. Regalado's motion 'to formally
adopt the entire proceedings including the formal
offer of evidence'. In support of his foregoing action,
respondent Judge reasoned:
'Petitioners' motion for the disqualification of Atty.
Romanillos as respondent municipality's counsel is
deemed moot and academic in view of his
withdrawal as counsel of said municipality pursuant
to a joint motion dated August 22, 1990, although he
shall remain as counsel on record of private
respondent Kristi Corporation. Atty. Oliviano Regalado
under the same joint motion moved for the adoption
of the entire proceedings conducted by collaborating
counsel, Atty. Romanillos.
It is noted that Atty. Romanillos initially entered his
appearance as collaborating counsel of the Provincial
Prosecutor and the Provincial Attorney when he filed
a motion to dissolve injunction under motion dated
May 30, 1990 and since then despite his active
participation in the proceedings, the opposing
counsel has never questioned his appearance until
after he made a formal offer of evidence for the
respondents. The acquiescence of petitioners,'
counsel of (sic) his appearance is tantamount to a
waiver and petitioners are, therefore, estopped to
question the same. In all the pleadings made by Atty.
Romanillos, it was clearly indicated that he was
appearing as the collaborating counsel of the
Provincial Attorney. Besides, petitioners' counsel
failed to submit their comment and/or objection to
the said joint motion of respondents' counsel as
directed by the Court within the reglementary period.
By virtue of these circumstances, all the proceedings

attended to and participated in by said collaborating


counsel is a fait accompli and the Court finds no
cogent justification to nullify the same.'
Petitioners' motion for reconsideration of the
foregoing Order was denied by respondent Judge in
his Order dated October 19, 1990, the second Order
now being assailed. Respondent Judge reiterated the
observations which he made in the Order of
September 19, 1990 that Atty. Romanillos, while
actively handling the said case was merely appearing
as the collaborating counsel of both the Provincial
Prosecutor and the Provincial Attorney of Bulacan;
that Atty. Romanillos' appearance was 'never
impugned by petitioners' and was only questioned
after his (Atty. Romanillos') submission of the formal
offer of evidence for respondent; and that therefore,
said court proceedings 'is (sic) a fait accompli'.
Respondent Judge went on to say that the
declaration of nullity of said proceedings and the retaking of the same evidence by the same parties is
(sic) apparently an exercise in futility'. He added that
in the absence of untimely objection by petitioners to
Atty. Romanillos' appearance as the collaborating
counsel, petitioners are guilty of laches for having
slept on (sic) their rights and are estopped as their
acquiescence may be considered as waiver of such
right. Furthermore, according to respondent Judge,
assuming that the proceedings had been 'tainted
with frailness to render the same legally
objectionable', the same has been 'legally remedied'
by its formal adoption upon motion of the Provincial
Accorney (sic), Atty. Regalado, who is not disqualified
to appear as counsel for the municipality of Baliuag,
for the reason that by virtue of Section 19 of R.A. No.
5185 (The Decentralization Act of 1967), the
authority to act as legal officer/adviser for (sic) civil
cases of the province of Bulacan, of which the
municipality of Baliuag is a political subdivision, has
been transferred from the Provincial Fiscal (now
Provincial Prosecutor) of Bulacan to the Provincial
Attorney thereof."
As earlier stated, the Court of Appeals
dismissed the petition and denied the motion for
reconsideration. Hence this recourse.
The Issues

The issues raised


Memorandum are:[5]

by

petitioners

in

their

"1) Under present laws and jurisprudence, can a


municipality be represented in a suit
against it by a private counsel?
2) If not, what is the status of the proceedings
undertaken by an unauthorized private counsel;
3) Can the provincial attorney of a province act as
counsel of a municipality in a suit;
4) Can the provincial attorney adopt with legal
effect the proceedings undertaken by an
unauthorized private counselof (sic) a
municipality;
5) May a court act on an alleged motion which
violates Sections 4 and 5 of Rule 15 and
Section 26, Rule 128 of the Rules of Court."
Petitioners contend that the assailed Decision
which affirmed the Orders of the trial court is void for
being violative of the following laws:[6]
"VI-1 The respondent court violated Section
1683 of the Revised Administrative
Code; Section 3, paragraph 3 (a) of
Republic Act No. 2264, otherwise
known as the Local Autonomy Act;
and Section 35; Book IV, Title III,
Chapter 12, Administrative Code of
1987 (Executive Order No. 292)
when it authorized Atty. Oliviano D.
Regalado, the Provincial Attorney of
Bulacan, to appear as counsel for
respondent Municipality of Baliuag.
VI-2 The respondent court violated Section 1683
of the Revised Administrative Code;
Section 3, paragraph 3 (a) of
Republic Act No. 2264, otherwise
known as the Local Autonomy Act;
Section 35, Book IV, Title III,
Chapter 12, Executive Order No.
292, otherwise known as the

Administrative Code of 1987; and


Article 1352 of the New Civil Code,
when it denied the petitioners'
motion to declare the proceedings
undertaken or participated in by
said Atty. Roberto B. Romanillos, as
private counsel of respondent
Municipality, null and void.
VI-3 The respondent court acted in excess of its
jurisdiction and in grave abuse of
discretion when it acted and
granted the respondent's JOINT
MOTION dated August 22, 1990
(Annex 'H') which, as a rule, is a
mere worthless piece of paper
which the respondent judge/court
has no authority to act upon,
considering that said motion was
filed in court in patent violation of
or without complying with the
mandatory requirements provided
for by Sections 4 and 5 of Rule 15
and Section 26 of Rule 138 of the
Rules of Court."
Public respondent did not give due course to
the petition "because it does not prima facie show
justifiable
grounds
for
the
issuance
of certiorari."[7] Public respondent adds that:[8]
"Considering the foregoing jurisprudence, the logical
conclusion is that the Provincial Attorney of Bulacan
has now the authority to represent the municipality
of Baliuag in its law suits.
It follows that respondent Judge was correct in ruling
in the assailed Order of October 19, 1990 that even
assuming, arguendo, that the proceedings by the
court a quo which had been participated in by Atty.
Romanillos are legally objectionable, this was legally
remedied by the formal adoption by the provincial
Attorney, Atty. Regalado, of the said proceedings,
considering that the provincial attorney is not
disqualified from representing the municipality of
Baliuag in civil cases.

In the second place, the record discloses that Atty.


Romanillos had appeared as counsel for respondent
municipality of Baliuag in collaboration with the
Provincial Prosecutor and the Provincial Attorney, as
shown in the motion to dissolve injunction dated May
28, 1990 which Atty. Romanillos had filed for
respondent municipality. Accordingly and pursuant to
the aforecited provisions of law, it cannot correctly
be said that respondent Judge had acted with grave
abuse of discretion when he allowed Atty. Romanillos
to act as private counsel and Atty. Regalado,
Provincial Attorney of Bulacan, to appear as counsel
for respondent Municipality of Baliuag. Perforce, it
also cannot be correctly said that respondent Judge
violated the aforecited provisions when he denied
petitioners' motion to declare null and void the
proceedings undertaken by and participated in by
Atty. Romanillos as private counsel of the
municipality of Baliuag.
At any rate, even granting, only for the
sake of argument, that Atty. Romanillos'
appearance as counsel for the municipality
could not be legally authorized under the
aforesaid provisions of law, the fact that
Atty. Regalado as Provincial Attorney of
Baliuag
had
formally
adopted
the
proceedings participated in by Atty.
Romanillos as counsel for the municipality of
Baliuag had served, as already stated, to
cure such a defect.
Thirdly, We are likewise unable to see
grave abuse of discretion in respondent
Judge's actuation in granting the joint motion
filed by Atty. Romanillos and Atty. Regalado for
the withdrawal of the former as private
counsel of respondent municipality, and the
adoption by the latter of the proceedings
participated in/undertaken by the former,
including the formal offer of evidence
submitted by the former."
Public respondent likewise found that the "joint
motion does not partake of the nature of an
adversarial motion which would have rendered noncompliance with Sections 4 and 5 of Rule 15 of the
Rules of Court fatal to the motion." [9] It is to be
emphasized
that
petitioners
"sought
the

disqualification of Atty. Romanillos x x x (Thus,) what


petitioners had sought to (be) achieve(d) in their said
motion was in fact what Atty. Romanillos had sought
x x x in the joint motion dated August 22, 1990." [10]
Respondent municipality submits that Section
19 of RA 5185:
"is not meant to prohibit or prevent the Provincial
Attorney to act as legal adviser and legal officer for
municipalities and municipal districts because such
interpretations would be to say the least, absurb
(sic). In this jurisdiction, a province is composed of
municipalities and municipal districts, and therefore
they are deemed included in the provisions of
Section 19 of Republic Act 5185. It is also impractical
and contrary to the spirit of the law to limit the
sphere of authority of the Provincial Attorney to the
province only."[11]
The different allegations boil down to three
main issues: (1) Who is authorized to represent a
municipality in a civil suit against it? (2) What is the
effect on the proceedings when a private counsel
represents a municipality? Elsewise stated, may the
proceedings be validated by a provincial attorney's
adoption of the actions made by a private counsel?
(3) Does a motion of withdrawal of such unauthorized
appearance,
and
adoption
of
proceedings
participated in by such counsel have to comply with
Sections 4 and 5[12] of Rule 15 of the Rules of Court?
The Court's Ruling
We affirm the Decision and Resolution of public
respondent.

First Issue: Who Is Authorized to Represent a


Municipality in Its Lawsuits?
In the recent case of Municipality of Pililla, Rizal
vs. Court of Appeals,[13] this Court, through Mr. Justice
Florenz D. Regalado, set in clear-cut terms the
answer to the question of who may legally represent
a municipality in a suit for or against it, thus:[14]

"x x x The matter of representation of a municipality


by a private attorney has been settled in
Ramos vs. Court of Appeals, et al.,[15] and reiterated
in Province of Cebu vs. Intermediate Appellate
Court, et al.,[16] where we ruled that private attorneys
cannot represent a province or municipality in
lawsuits.
Section 1683 of the Revised Administrative Code
provides:
'Section 1683. Duty of fiscal to represent provinces
and provincial subdivisions in litigation. The
provincial fiscal shall represent the province and any
municipality or municipal district thereof in any court,
except in cases whereof (sic) original jurisdiction is
vested in the Supreme Court or in cases where the
municipality or municipal district in question is a
party adverse to the provincial government or to
some other municipality or municipal district in the
same province. When the interests of a provincial
government and of any political division thereof are
opposed, the provincial fiscal shall act on behalf of
the province.
When the provincial fiscal is disqualified to serve any
municipality or other political subdivision of a
province, a special attorney may be employed by its
council.'[17]
Under the above provision, complemented by Section
3, Republic Act No. 2264, the Local Autonomy Law,
[18]
only the provincial fiscal and the municipal
attorney can represent a province or municipality in
their lawsuits. The provision is mandatory. The
municipality's authority to employ a private lawyer is
expressly limited only to situations where the
provincial fiscal is disqualified to represent it.[19]
For the aforementioned exception to apply, the fact
that the provincial fiscal was disqualified to handle
the municipality's case must appear on record. [20] In
the instant case, there is nothing in the records to
show that the provincial fiscal is disqualified to act as
counsel for the Municipality of Pililla on appeal, hence
the appearance of herein private counsel is without
authority of law."

The provincial fiscal's functions as legal officer


and adviser for the civil cases of a province and
corollarily, of the municipalities thereof, were
subsequently transferred to the provincial attorney. [21]

private lawyer' and that the interests of the


municipality would be best protected if a government
lawyer handles its litigations."' (Underscoring
supplied.)

The
foregoing
provisions
of
law
and
jurisprudence show that only the provincial fiscal,
provincial attorney, and municipal attorney should
represent a municipality in its lawsuits. Only in
exceptional instances may a private attorney be
hired by a municipality to represent it in lawsuits.
These exceptions are enumerated in the case
of Alinsug vs. RTC Br. 58, San Carlos City, Negros
Occidental,[22] to wit:[23]

None of the foregoing exceptions is present in


this case. It may be said that Atty. Romanillos
appeared for respondent municipality inasmuch as
he was already counsel of Kristi Corporation which
was sued with respondent municipality in this same
case. The order of the trial court dated September
19, 1990, stated that Atty. Romanillos "entered his
appearance as collaborating counsel of the provincial
prosecutor and the provincial attorney." [24] This
collaboration is contrary to law and hence should not
have been recognized as legal. It has already been
ruled in this wise:

"Indeed, it appears that the law allows a private


counsel to be hired by a municipality only when the
municipality is an adverse party in a case involving
the provincial government or another municipality or
city within the province. This provision has its
apparent origin in the ruling inDe Guia v. The Auditor
General (44 SCRA 169, March 29, 1979) where the
Court held that the municipality's authority to employ
a private attorney is expressly limited only to
situations where the provincial fiscal would be
disqualified to serve and represent it. With Sec. 1683
of the old Administrative Code as legal basis, the
Court therein cited Enriquez, Sr. v. Gimenez [107 Phil.
932 (1960)] which enumerated instances when the
provincial fiscal is disqualified to represent in court a
particular municipality; if and when original
jurisdiction of case involving the municipality is
vested in the Supreme Court, when the municipality
is a party adverse to the provincial government or to
some other municipality in the same province, and
when, in a case involving the municipality, he, or his
wife, or child, is pecuniarily involved, as heir legatee,
creditor or otherwise.
Thereafter, in Ramos vs. Court of Appeals (108 SCRA
728, October 30, 1981), the Court ruled that a
municipality may not be represented by a private law
firm which had volunteered its services gratis, in
collaboration with the municipal attorney and the
fiscal, as such representation was violative of Sec.
1683 of the old Administrative Code. This strict
coherence to the letter of the law appears to have
been dictated by the fact that 'the municipality
should not be burdened with expenses of hiring a

"The fact that the municipal attorney and the fiscal


are supposed to collaborate with a private law firm
does not legalize the latter's representation of the
municipality of Hagonoy in Civil Case No. 5095-M.
While a private prosecutor is allowed in criminal
cases, an analogous arrangement is not allowed in
civil cases wherein a municipality is the plaintiff."[25]
As already stated, private lawyers may not represent
municipalities on their own. Neither may they do so
even in collaboration with authorized government
lawyers. This is anchored on the principle that only
accountable public officers may act for and in behalf
of public entities and that public funds should not be
expended to hire private lawyers.
Petitioners cannot be held in estoppel for
questioning the legality of the appearance of Atty.
Romanillos, notwithstanding that they questioned the
witnesses of respondent municipality during the
hearing of its motion to dissolve the preliminary
injunction. Municipality of Pililla, Rizal vs. Court of
Appeals[26] held that the legality of the representation
of an unauthorized counsel may be raised at any
stage of the proceedings. This Court stated that:[27]
"The contention of Atty. Mendiola that
private respondent cannot raise for the first
time on appeal his lack of authority to
represent the municipality is untenable. The

legality of his representation can be


questioned at any stage of the proceedings.
In the cases hereinbefore cited, the issue of
lack of authority of private counsel to
represent a municipality was only raised for
the first time in the proceedings for the
collection of attorney's fees for services
rendered in the particular case, after the
decision in that case had become final and
executory and/or had been duly executed."
Elementary fairness dictates that parties
unaware of the unauthorized representation should
not be held in estoppel just because they did not
question on the spot the authority of the counsel for
the municipality. The rule on appearances of a lawyer
is that
"(u)ntil the contrary is clearly shown, an attorney is
presumed to be acting under authority of the litigant
whom he purports to represent. (Azotes v. Blanco, 78
Phil. 739) His authority to appear for and represent
petitioner in litigation, not having been questioned in
the lower court, it will be presumed on appeal that
counsel was properly authorized to file the complaint
and appear for his client. (Republic v. Philippine
Resources Development Corporation, 102 Phil.
960)"[28]
Second
Issue: Effect
on
Proceedings
Adoption of Unauthorized Representation

by

Would the adoption by Atty. Regalado of the


proceedings participated in by Atty. Romanillos
validate such proceedings? We agree with public
respondent that such adoption produces validity.
Public respondent stated the reasons [29] to which we
agree:
"Moreover, it does not appear that
the adoption of proceedings participated in
or undertaken by Atty. Romanillos when he
was private counsel for the respondent
municipality of Baliuag such as the
proceedings on the motion to dissolve the
injunction, wherein petitioners had even
cross-examined the witnesses presented
by Atty. Romanillos in support of said

motion and had even started to present


their witnesses to sustain their objection to
the motion would have resulted in any
substantial
prejudice
to
petitioners'
interest. As We see it, to declare the said
proceedings null and void notwithstanding
the formal adoption thereof by Atty.
Regalado as Provincial Attorney of Bulacan
who is authorized to represent respondent
municipality of Baliuag in court and to
require trial anew to cover the same
subject matter, to hear the same witnesses
and to admit the same evidence adduced
by the same parties cannot enhance the
promotion of justice."
This Court believes that conferring legitimacy to
the appearance of Atty. Romanillos would not cause
substantial prejudice on petitioners. Requiring new
trial on the mere legal technicality that the
municipality was not represented by a legally
authorized counsel would not serve the interest of
justice. After all, this Court does not see any injustice
committed against petitioners by the adoption of the
work of private counsel nor any interest of justice
being served by requiring retrial of the case by the
duly authorized legal representative of the town.
In sum, although a municipality may not hire a
private lawyer to represent it in litigations, in the
interest of substantial justice however, we hold that a
municipality may adopt the work already performed
in good faith by such private lawyer, which work is
beneficial to it (1) provided that no injustice is
thereby heaped on the adverse party and (2)
provided further that no compensation in any guise is
paid therefor by said municipality to the private
lawyer. Unless so expressly adopted, the private
lawyer's work cannot bind the municipality.
Third Issue: "Joint Motion" Need Not Comply
with Rule 15
We also agree with the justification of public
respondent that a motion to withdraw the
appearance of an unauthorized lawyer is a nonadversarial motion that need not comply with Section
4 of Rule 15 as to notice to the adverse party. The
disqualification of Atty. Romanillos was what

petitioners were really praying for when they


questioned his authority to appear for the
municipality. The disqualification was granted,
thereby serving the relief prayed for by petitioners.
Such being the case, no "notice directed to the
parties concerned and served at least 3 days before
the hearing thereof"[30] need be given petitioners, the
questioned motion not being contentious. Besides,
what petitioners were questioning as to lack of
authority was remedied by the adoption of
proceedings by an authorized counsel, Atty.
Regalado. The action of the trial court allowing the
motion of respondent municipality effectively
granted petitioners' motion to disqualify Atty.
Romanillos. In People vs. Leviste,[31] we ruled that:
"While it is true that any motion that
does not comply with the requirements of Rule
15 should not be accepted for filing and, if filed,
is not entitled to judicial cognizance, this Court
has likewise held that where a rigid application
of the rule will result in a manifest failure or
miscarriage of justice, technicalities may be
disregarded in order to resolve the case.
Litigations should, as much as possible, be
decided on the merits and not on technicalities.
As this Court held in Galvez vs. Court of
Appeals, an order of the court granting the
motion to dismiss despite the absence of a
notice of hearing, or proof of service thereof, is
merely an irregularity in the proceedings x x x
(which) cannot deprive a competent court of
jurisdiction over the Case."'(Citations omitted).
It should be remembered that rules of
procedure are but 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.[32]
WHEREFORE, premises
considered,
the
Petition is DENIED and the assailed Decision and
Resolution are AFFIRMED. No costs.
SO ORDERED.

Pambayang Kapasyahan Blg. 10, Serye 1993. The


petition states:
I. Bawiin, nulipikahin at pawalang-bisa ang
Pambayang Kapasyahan Blg. 10, Serye 1993
ng Sangguniang Bayan para sa pag-anib ng
Morong sa SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang
Kapasiyahan na aanib lamang ang Morong
sa SSEZ kung ang mga sumusunod na
kondisyones ay ipagkakaloob, ipatutupad at
isasagawa para sa kapakanan at interes ng
Morong at Bataan:
(A). Ibalik sa Bataan ang "Virgin
Forests" isang bundok na hindi
nagagalw
at
punong-puno
ng
malalaking punong-kahoy at iba'-ibang
halaman.
G.R. No. 111230 September 30, 1994
ENRIQUE
T.
GARCIA,
ET
AL., petitioners,
vs.
COMMISSION
ON
ELECTIONS
and
SANGGUNIANG
BAYAN
OF
MORONG,
BATAAN, respondents.
PUNO, J.:
The 1987 Constitution is borne of the conviction that
people power can be trusted to check excesses of
government. One of the means by which people
power can be exercised is thru initiatives where local
ordinances and resolutions can be enacted or
repealed. An effort to trivialize the effectiveness of
people's initiatives ought to be rejected.
In its Pambayang Kapasyahan Blg. 10, Serye
1993, 1 the Sangguniang Bayan ng Morong, Bataan
agreed to the inclusion of the municipality of Morong
as part of the Subic Special Economic Zone in accord
with
Republic
Act
No. 7227.
On May 24, 1993, petitioners filed a petition 2 with
the Sangguniang Bayan of Morong to annul

(B) Ihiwalay ang Grande Island sa


SSEZ at ibalik ito sa Bataan.
(K). Isama ang mga lupain ng Bataan
na
nakapaloob
sa
SBMA
sa
pagkukuenta
ng
salaping
ipinagkakaloob
ng
pamahalaang
national
o
"Internal
Revenue
Allotment" (IRA) sa Morong, Hermosa
at sa Lalawigan.
(D). Payagang magtatag rin ng sariling
"special economic zones" ang bawat
bayan ng Morong, Hermosa at
Dinalupihan.
(E). Ibase sa laki ng kanya-kanyang
lupa ang pamamahagi ng kikitain ng
SBMA.
(G). Ibase rin ang alokasyon ng
pagbibigay ng trabaho sa laki ng
nasabing mga lupa.
(H). Pabayaang bukas ang pinto ng
SBMA na nasa Morong ng 24 na oras

at bukod dito sa magbukas pa ng pinto


sa hangganan naman ng Morong at
Hermosa
upang
magkaroon
ng
pagkakataong umunlad rin ang mga
nasabing bayan, pati na rin ng iba
pang bayan ng Bataan.
(I). Tapusin ang pagkokonkreto ng mga
daang Morong-Tala-Orani at MorongTasig-Dinalupihan para sa kabutihan
ng
mga
taga-Bataan
at
tuloy
makatulong sa pangangalaga ng mga
kabundukan.
(J).
Magkaroon
ng
sapat
na
representasyon sa pamunuan ng SBMA
ang Morong, Hermosa at Bataan.
The municipality of Morong did not take any action
on the petition within thirty (30) days after its
submission. Petitioners then resorted to their power
of initiative under the Local Government Code of
1991. 3 They started to solicit the required number of
signatures 4 to cause the repeal of said resolution.
Unknown to the petitioners, however, the Honorable
Edilberto M. de Leon, Vice Mayor and Presiding
Officer of the Sangguniang Bayan ng Morong, wrote a
letter dated June 11, 1993 to the Executive Director
of COMELEC requesting the denial of " . . . the
petition for a local initiative and/or referendum
because the exercise will just promote divisiveness,
counter productive and futility." 5 We quote the
letter,viz:
The
Executive
C
O
M
E
L
Intramuros, Metro Manila

Director
E
C

S i r:
In view of the petition filed by a group
of proponents headed by Gov. Enrique
T. Garcia, relative to the conduct of a
local initiative and/or referendum for
the
annulment
of
Pambayang
Kapasyahan Blg. 10, Serye 1993, may
we respectfully request to deny the
petition referred thereto considering the

issues raised by the proponents were


favorably acted upon and endorsed to
Congress
and
other
government
agencies by the Sangguniang Bayan of
Morong.
For your information and guidance, we
are enumerating hereunder the issues
raised by the petitioners with the
corresponding actions undertaken by
the Sangguniang Bayan of Morong, to
wit:
ISSUES RAISED BY PROPONENTS
I.
Pawalang-bisa
ang
Pambayang
Kapasyahan Blg. 10, Serye ng taong
1993.
II. Palitan ito ng isang Kapasyahang
Pag-anib sa SSEZ kung:
a) Ibabalik sa Morong ang
pag-aaring Grande Island,
kabundukan
at
Naval
Reservation;
b) Ibase sa aring Lupa
LGU
ang
kikitain
mapapasok
manggagawa
nila
SSEZ;

ng
at
na
sa

c) Isama ang nasabing


lupa sa pagkukuwenta ng
"IRA" ng Morong, Hermosa
at Dinalupihan;
d)
Makapagtatag
ng
sariling "economic zones"
ang Morong, Hermosa at
Dinalupihan;
e) Pabayaan bukas ang
pinto
ng
Morong
patungong
SSEZ
at

magbukas ng
(2) pinto pa;

dalawang

(f) Konkretohin ang daang


Morong papunta sa Orani
at Dinalupihan;
g)
Pumili
ng
SBMA
Chairman na taga-ibang
lugar.
ACTIONS UNDERTAKEN
MORONG

BY

THE

SB

OF

1. By virtue of R.A. 7227, otherwise


known as the Bases Conversion
Development Act of 1992, all
actions of LGU's correlating on the
above
issues
are
merely
recommendatory in nature when
such provisions were already
embodied in the statute.
2. Corollary to the notion, the
Sangguniang Bayan of Morong
passed and approved Pambayang
Kapasyahan Blg. 18, Serye 1993,
requesting
Congress
of
the
Philippines
to
amend
certain
provisions of R.A. 7227, wherein it
reasserted its position embodied in
Pambayan Kapasyahan Blg. 08 and
Blg. 12, Serye ng taong 1992,
(Attached and marked as Annex
"A:) which tackled the same issues
raised
by
the
petitioners
particularly items a), b), c), e), and
g).
3. Item d) is already acted upon by
BCDA Chairman Arsenio Bartolome
III in its letter to His Excellency
President Fidel V. Ramos, dated
May 7, 1993 (Attached and marked
as Annex "B") with clarifying letter
from BCDA Vice-Chairman Rogelio
L. Singson regarding lands on
Mabayo and Minanga dated June 3,

1993 that only lands inside the


perimeter fence are envisioned to
be part of SBMA.
4. Item f), President Ramos in his
marginal note over the letter
request of Morong, Bataan Mayor
Bienvenido
L.
Vicedo,
the
Sangguniang
Bayan
and
Congressman Payumo, when the
Resolution of Concurrence to SBMA
was submitted last April 6, 1993,
order the priority implementation
of
completion
of
MorongDinalupihan (Tasik-Road) Project,
including the Morong-PoblacionMabayo Road to DPWH. (Attached
and marked as Annex "C").
Based on the foregoing facts, the
Sangguniang Bayan of Morong had
accommodated the clamor of the
petitioners in accordance with its
limited powers over the issues.
However, the Sangguniang Bayan
of Morong cannot afford to wait for
amendments by Congress of R.A.
7227 that will perhaps drag for
several months or years, thereby
delaying
the
development
of
Morong, Bataan.
Henceforth,
we
respectfully
reiterate our request to deny the
petition for a local initiative and/or
referendum because the exercise
will just promote divisiveness,
counter productive and futility.
Thank you and more power.
Very truly yours,
(SGD.) EDILBERTO M. DE LEON
Mun. Vice Mayor/Presiding Officer
In its session of July 6, 1993, the COMELEC
en banc resolved to deny the petition for

local initiative on the ground that its subject


is "merely a resolution (pambayang
kapasyahan) and not an ordinance." 6 On
July 13, 1993, the COMELEC en banc further
resolved to direct Provincial Election
Supervisor, Atty. Benjamin N. Casiano, to
hold action on the authentication of
signatures being gathered by petitioners. 7
These COMELEC resolutions are sought to be set
aside in the petition at bench. The petition makes the
following submissions:
5.
This
is
a
petition
for certiorari and mandamus.
5.01 For certiorari, conformably to
Sec. 7, Art. IX of the Constitution,
to set aside Comelec Resolution
Nos.
93-1676
and
93-1623
(Annexes "E" and "H") insofar as it
disallowed the initiation of a local
initiative to annul PAMBAYANG
KAPASYAHAN BLG. 10, SERYE 1993
including
the
gathering
and
authentication of the required
number of signatures in support
thereof.
5.01.1
As
an
administrative
agency,
respondent
Comelec is bound
to observe due
process in the
conduct of its
proceedings.
Here, the subject
resolutions,
Annexes "E" and
"H",
were
issued ex
parte and without
affording
petitioners
and
the
other
proponents of the
initiative
the

opportunity to be
heard
thereon.
More importantly,
these resolutions
and/or directives
were issued with
grave abuse of
discretion.
A
Sangguniang
Bayan resolution
being an act of
the
aforementioned
local
legislative
assembly
is
undoubtedly
a
proper subject of
initiative.
(Sec.
32,
Art.
VI,
Constitution)

unit
concerned
for
their
approval within
sixty (60) days from
the date of certification
by
the
Comelec,
as provided
in
subsection (g) hereof,
in case of provinces
and
cities,
fortyfive (45) days in case
of municipalities, and
thirty (30) days in case
of barangays.
The
initiative shall then be
held on the date set,
after which the results
thereof
shall
be
certified
and
proclaimed
by
the
Comelec. (Sec. 22, par.
(h) R.A. 7160.

5.02 For mandamus, pursuant to


Sec. 3, Rule 65, Rules of Court, to
command the respondent Comelec
to
schedule
forthwith
the
continuation of the signing of the
petition, and should the required
number of signatures be obtained,
set a date for the initiative within
forty-five (45) days thereof.
5.02.1
Respondent
Comelec's
authority in the matter of local
initiative is merely ministerial. It is
duty-bound
to
supervise
the
gathering of signatures in support
of the petition and to set the date
of the initiative once the required
number of signatures are obtained.
If the required number
of
signatures
is
obtained, the Comelec
shall then set a date
for the initiative during
which the proposition
shall be submitted to
the registered voters in
the local government

Respondent COMELEC opposed the petition.


Through the Solicitor General, it contends
that under the Local Government Code of
1991, a resolution cannot be the subject of
a local initiative. The same stance is
assumed by the respondent Sangguniang
Bayan of Morong. 8
We grant the petition.
The case at bench is of transcendental significance
because it involves an issue of first impression
delineating the extent of the all important original
power of the people to legislate. Father Bernas
explains that "in republican systems, there are
generally two kinds of legislative power, original and
derivative. Original legislative power is possessed by
the sovereign people. Derivative legislative power is
that which has been delegated by the sovereign
people to legislative bodies and is subordinate to the
original power of the people." 9
Our constitutional odyssey shows that up until 1987,
our people have not directly exercised legislative
power, both the constituent power to amend or
revise the Constitution or the power to enact ordinary

laws. Section 1, Article VI of the 1935 Constitution


delegated legislative power to Congress, thus "the
legislative power shall be vested in a Congress of the
Philippines, which shall consist of a Senate and a
House of Representatives." Similarly, section 1,
Article VIII of the 1973 Constitution, as amended,
provided that "the Legislative power shall be vested
in a Batasang Pambansa." 10
Implicit in the set up was the trust of the people in
Congress to enact laws for their benefit. So total was
their trust that the people did not reserve for
themselves the same power to make or repeal laws.
The omission was to prove unfortunate. In the 70's
and until the EDSA revolution, the legislature failed
the expectations of the people especially when
former President Marcos wielded lawmaking powers
under Amendment No. 6 of the 1973 Constitution.
Laws which could have bridled the nation's downslide
from democracy to authoritarianism to anarchy never
saw the light of day.
In February 1986, the people took a direct hand in
the determination of their destiny. They toppled
down the government of former President Marcos in
a historic bloodless revolution. The Constitution was
rewritten to embody the lessons of their sad
experience. One of the lessons is the folly of
completely surrendering the power to make laws to
the legislature. The result, in the perceptive words of
Father Bernas, is that the new Constitution became
"less trusting of public officials than the American
Constitution." 11
For the first time in 1987, the system of people's
initiative was thus installed in our fundamental law.
To be sure, it was a late awakening. As early as 1898,
the state of South Dakota has adopted initiative and
referendum in its constitution 12 and many states
have followed suit. 13 In any event, the framers of our
1987 Constitution realized the value of initiative and
referendum as an ultimate weapon of the people to
negate government malfeasance and misfeasance
and they put in place an overarching system. Thus,
thru an initiative, the people were given the power to
amend the Constitution itself. Sec. 2 of Art. XVII
provides: "Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per

centum of the total number of registered voters, of


which every legislative district must be represented
by at least three per centum of the registered voters
therein." Likewise, thru an initiative, the people were
also endowed with the power to enact or reject any
act or law by congress or local legislative body.
Sections 1 and 32 of Article VI provide:
Sec. 1. The legislative power shall
be vested in the Congress of the
Philippines which shall consist of a
Senate
and
a
House
of
Representatives except
to
the
extent reserved to the people by
the provisions on initiative and
referendum.
xxx xxx xxx
Sec. 32. The Congress shall, as
early as possible, provide for a
system
of
initiative
and
referendum, and the exceptions
therefrom, whereby the people can
directly propose and enact laws or
approve or reject any act or law or
part thereof passed by the
Congress or local legislative body
after the registration of a petition
therefor signed by at least ten per
centum of the total number of
registered voters, of which every
legislative
district
must
be
represented by at least three per
centum of the registered voters
thereto.
The COMELEC was also empowered to
enforce and administer all laws and
regulations relative to the conduct of an
initiative
and
referendum. 14 Worthwhile
noting is the scope of coverage of an
initiative or referendum as delineated by
section 32 Art. VI of the Constitution, supra
any act or law passed by Congress or
local legislative body.

In due time, Congress respondent to the mandate of


the Constitution. It enacted laws to put into operation
the constitutionalized concept of initiative and
referendum. On August 4, 1989, it approved Republic
Act No. 6735 entitled "An Act Providing for a System
of Initiative and Referendum and Appropriating Funds
Therefor."
Liberally
borrowed
from American
laws, 15 R.A. No. 6735, among others, spelled out the
requirements 16 for the exercise of the power of
initiative and referendum, the conduct of national
initiative and referendum; 17 procedure of local
initiative
and
referendum; 18 and
their
19
limitations. Then came Republic Act No. 7160,
otherwise known as The Local Government Code of
1991. Chapter 2, Title XI, Book I of the Code
governed the conduct of local initiative and
referendum.
In light of this legal backdrop, the essential issue to
be resolved in the case at bench is whether
Pambayang Kapasyahan Blg. 10, serye 1993 of the
Sangguniang Bayan of Morong, Bataan is the proper
subject of an initiative. Respondents take the
negative stance as they contend that under the Local
Government Code of 1991 only an ordinance can be
the subject of initiative. They rely on section 120,
Chapter 2, Title XI, Book I of the Local Government
Code of 1991 which provides: "Local Initiative
Defined. Local initiative is the legal process
whereby the registered voters of a local government
unit may directly propose, enact, or amend any
ordinance."
We reject respondents' narrow and literal reading of
the above provision for it will collide with the
Constitution and will subvert the intent of the
lawmakers in enacting the provisions of the Local
Government Code of 1991 on initiative and
referendum.
The Constitution clearly includes not only ordinances
but resolutions as appropriate subjects of a local
initiative. Section 32 of Article VI provides in
luminous language: "The Congress shall, as early as
possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby
the people can directly propose and enact laws or
approve or reject any act or law or part thereof
passed by the Congress, or local legislative body . . ."

An act includes a resolution. Black 20 defines an act


as "an expression of will or purpose . . . it may
denote something done . . . as a legislature, including
not merely physical acts, but also decrees, edicts,
laws,
judgments, resolves,
awards,
and
determinations . . . ." It is basic that a law should be
construed in harmony with and not in violation of the
constitution. 21 In line with this postulate, we held in
In Re Guarina that "if there is doubt or uncertainty as
to the meaning of the legislative, if the words or
provisions are obscure, or if the enactment is fairly
susceptible of two or more constructions, that
interpretation will be adopted which will avoid the
effect of unconstitutionality, even though it may be
necessary, for this purpose, to disregard the more
usual or apparent import of the language used." 22
The constitutional command to include acts (i.e.,
resolutions) as appropriate subjects of initiative was
implemented by Congress when it enacted Republic
Act No. 6735 entitled "An Act Providing for a System
of Initiative and Referendum and Appropriating Funds
Therefor." Thus, its section 3(a) expressly includes
resolutions as subjects of initiatives on local
legislations, viz:
Sec. 3. Definition of Terms For purposes of
this Act, the following terms shall mean;

(a) "Initiative" is
the power of the people to propose
amendments to the Constitution or
to propose and enact legislations
through an election called for the
purpose.
There are three
(3) systems of initiative, namely:
a.1. Initiative on
the Constitution which refers to a
petition proposing amendments to
the Constitution.
a.2. Initiative on
statutes which refers to a petition

proposing to enact
legislation; and

national

a.3. Initiative on
local legislation which refers to a
petition proposing to enact a
regional, provincial, city, municipal,
or barangay law, resolution, or
ordinance. (Emphasis ours)
Similarly, its section 16 states: "Limitations
Upon Local Legislative Bodies Any
proposition
on
ordinance
orresolution approved through the system of
initiative and referendum as herein provided
shall not be repealed, modified or amended,
by the local legislative body concerned
within six (6) months from the date
therefrom . . . ." On January 16, 1991, the
COMELEC also promulgated its Resolution
No. 2300 entitled "In Re Rules and
Regulations Governing the Conduct of
Initiative on the Constitution, and Initiative
and Referendum, on National and Local
Laws." It likewise recognized resolutions as
proper subjects of initiatives. Section 5,
Article I of its Rules states: "Scope of power
of initiative The power of initiative may
be exercised to amend the Constitution, or
to enact a national legislation, a regional,
provincial, city, municipal or barangay
law, resolution or ordinance."
There can hardly be any doubt that when Congress
enacted Republic Act No. 6735 it intend resolutions
to be proper subjects of local initiatives. The debates
confirm this intent. We quote some of the
interpellations when the Conference Committee
Report on the disagreeing provisions between Senate
Bill No. 17 and House Bill No. 21505 were being
considered in the House of Representatives, viz:
THE
SPEAKER
PRO
TEMPORE.
The
Gentleman
from
Camarines
Sur
is
recognized.
MR. ROCO. On the Conference Committee
Report on the disagreeing provisions

between Senate Bill No. 17 and the


consolidated House Bill No. 21505 which
refers to the system providing for the
initiative ad referendum, fundamentally,
Mr. Speaker, we consolidated the Senate
and the House versions, so both versions
are totally intact in the bill. The Senators
ironically provided for local initiative and
referendum
and
the
House
of
Representatives correctly provided for
initiative
and
referendum
on
the
Constitution and on national legislation.
I move that we approve the consolidated
bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE. What is the
pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor
answer just a few questions?
THE SPEAKER PRO TEMPORE. What does
the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE
SPEAKER
PRO
TEMPORE.
Gentleman will please proceed.

The

MR. ALBANO. I heard the sponsor say that


the only difference in the two bills was that
in the Senate version there was a provision
for local initiative and referendum, whereas
the House version has none.
MR. ROCO. In fact, the Senate version
provided purely for local initiative and
referendum, whereas in the House version,
we provided purely for national and
constitutional legislation.
MR. ALBANO. Is it our understanding,
therefore, that the two provisions were
incorporated.?

MR. ROCO. Yes, Mr. Speaker.


MR. ALBANO. So that we will now have
a complete initiative and referendum both
in the constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial
as municipal resolutions?

as

well

MR. ROCO. Down to barangay, Mr. Speaker.


MR. ALBANO. And this initiative and
referendum is in consonance with the
provision of the Constitution whereby it
mandates this Congress to enact the
enabling law, so that we shall have a
system which can be done every five
years. Is it five years in the provision of the
Constitution?
MR. ROCO. That is correct, Mr. Speaker. For
constitutional amendments to the 1987
Constitution, it is every five years. 23
Contrary to the submission of the respondents, the
subsequent enactment of the local Government Code
of 1991 which also dealt with local initiative did not
change the scope of its coverage. More specifically,
the Code did not limit the coverage of local initiatives
to ordinances alone. Section 120, Chapter 2, Title IX
Book I of the Code cited by respondents merely
defines the concept of local initiative as the legal
process whereby the registered voters of a local
government unit may directly propose, enact, or
amend any ordinance. It does not, however, deal
with the subjects or matters that can be taken up in
a local initiative. It is section 124 of the same Code
which does. It states:
Sec. 124. Limitations on Local
Initiatives. (a) The power of local
initiative shall not be exercised
more than once a year.

(b) Initiative shall extend only to


subjects or matters which are
within the legal powers of the
Sanggunians to enact.

within the power of the local


Sanggunians to enact, subject of
course to the other requisites
enumerated in the Section.

xxx xxx xxx

5. Form of Initiative. Regarding the


form of the measure, the section
speaks
only
of
"ordinance,"
although the measure may be
contained in a resolution. If the
registered voters can propose
ordinances, why are they not
allowed to propose resolutions too?
Moreover, the wording of Sec. 125,
below, which deals not only with
ordinances
but
with
"any
proposition" implies the inclusion of
resolutions.
The
discussion
hereunder will also show support
for the conclusion that resolutions
may indeed be the subject of local
initiative.

This provision clearly does not limit the


application of local initiatives to ordinances,
but to all "subjects or matters which are
within the legal powers of the Sanggunians
to enact," which undoubtedly includes
resolutions. This interpretation is supported
by Section 125 of the same Code which
provides: "Limitations upon Sanggunians.
Any proposition or
ordinance
approved
through the system of initiative and
referendum as herein provided shall not be
repealed, modified or amended by the
sanggunian concerned within six (6) months
from the date of the approval thereof . . . ."
Certainly,
the
inclusion
of
the
wordproposition is
inconsistent
with
respondents' thesis that only ordinances can
be the subject of local initiatives. The
principal author of the Local Government
Code of 1991, former Senator Aquilino
Pimentel, espouses the same view. In his
commentaries on the said law, he
wrote, viz: 24
4. Subject Matter Of Initiative. All
sorts of measures may be the
subject of direct initiative for as
long as these are within the
competence of the Sanggunian to
enact. In California, for example,
direct initiatives were proposed to
enact a fishing control bill, to
regulate
the
practice
of
chiropractors, to levy a special tax
to secure a new library, to grant a
franchise to a railroad company,
and to prevent discrimination in the
sale of housing and similar bills.
Direct initiative on the local lever
may, therefore, cover all kinds of
measures provided that these are

We note that respondents do not give any reason


why resolutions should not be the subject of a local
initiative. In truth, the reason lies in the well known
distinction between a resolution and an ordinance
i.e., that a resolution is used whenever the
legislature wishes to express an opinion which is to
have only a temporary effect while an ordinance is
intended to permanently direct and control matters
applying to persons or things in general. 25 Thus,
resolutions are not normally subject to referendum
for it may destroy the efficiency necessary to the
successful administration of the business affairs of a
city. 26
In the case at bench, however, it can not be argued
that the subject matter of the resolution of the
municipality of Morong merely temporarily affects
the people of Morong for it directs a permanent rule
of conduct or government. The inclusion of Morong
as part of the Subic Special Economic Zone has far
reaching implications in the governance of its people.
This is apparent from a reading of section 12 of
Republic Act No. 7227 entitled "An Act Accelerating
the Conversion of Military Reservations Into Other
Productive Uses, Creating the Bases Conversion and

Development Authority For This Purpose, Providing


Funds Therefor and For Other Purposes." to wit:
Sec. 12. Subic Special Economic
Zone.

Subject
to
the
concurrence
by
resolution
of
thesangguniang panlungsod of the
City
of
Olongapo
and
the sangguniang
bayan of
the
Municipalities of Subic, Morong and
Hermosa, there is hereby created a
Special Economic and Free-port
Zone consisting of the City of
Olongapo and the Municipality of
Subic, Province of Zambales, the
lands occupied by the Subic Naval
Base and its contiguous extensions
as embraced, covered, and defined
by the 1947 Military Bases
Agreement between the Philippines
and the United States of America
as amended, and within the
territorial
jurisdiction
of
the
Municipalities
of
Morong
and
Hermosa, Province of Bataan,
hereinafter referred to a as the
Subic Special Economic Zone
whose metes and bounds shall be
delineated in a proclamation to be
issued by the President of the
Philippines. Within thirty (30) days
after the approval of this Act, each
local government unit shall submit
its resolution of concurrence to join
the Subic Special Economic Zone to
the Office of the President.
Thereafter, the President of the
Philippines
shall
issue
a
proclamation defining the metes
and bounds of the zone as provided
herein.
The abovementioned zone shall be
subject to the following policies:
(a) Within the framework
subject to the mandate
limitations of the Constitution
the pertinent provisions of

and
and
and
the

Local Government Code, the Subic


Special Economic Zone shall be
developed into a self-sustaining,
industrial, commercial, financial
and investment center to generate
employment opportunities in and
around the zone and to attract and
promote
productive
foreign
investments;
(b) The Subic Special Economic
Zone shall be operated and
managed as a separate customs
territory ensuring free flow or
movement of goods and capital
within, into a exported out of the
Subic Special Economic Zone, as
well as provide incentives such as
tax and duty-free importations of
raw
material,
capital
and
equipment. However, exportations
or removal of goods from the
territory of the Subic Special
Economic Zone to the other parts
of the Philippine territory shall be
subject to customs duties and
taxes under the Customs and Tariff
Code and other relevant tax laws of
the Philippines:
(c) The provision of existing laws,
rules and regulations to the
contrary notwithstanding, no taxes,
local and national, shall be
imposed within the Subic Special
Economic Zone. In lieu of paying
taxes, three percent (3%) of the of
the gross income earned by all
businesses and enterprises within
the Subic Special Economic Zone
shall be remitted to the National
Government one percent (1%) each
to the local government units
affected by the declaration of the
zone
in
proportion
to
their
population area, and other factors.
In addition, there is hereby
established a development fund of
one percent (1%) of the gross

income earned by all businesses


and enterprises within the Subic
Special Economic Zone to be
utilized for the development of
municipalities outside the City of
Olongapo and the Municipality of
Subic, and other municipalities
contiguous to the base areas.
In case of conflict between national
and local laws with respect to tax
exemption privileges in the Subic
Special Economic Zone, the same
shall be resolved in favor of the
latter;
(d) No exchange control policy shall
be applied and free markets for
foreign exchange, gold, securities
and futures shall be allowed and
maintained in the Subic Special
Economic Zone;
(e) The Central Bank, through the
Monetary Board, shall supervise
and regulate the operations of
banks
and
other
financial
institutions within the Subic Special
Economic Zone;
(f) Banking and finance shall be
liberalized with the establishment
of foreign currency depository units
of local commercial banks and
offshore banking units of foreign
banks with minimum Central Bank
regulation;
(g) Any investor within the Subic
Special Economic Zone whose
continuing investment shall not be
less than Two hundred fifty
thousand
dollars
($250,000),
his/her spouse and dependent
children under twenty-one (21)
years of age, shall be granted
permanent resident status within
the Subic Special Economic Zone.

They shall have freedom of ingress


and egress to and from the Subic
Special Economic Zone without any
need of special authorization from
the Bureau of Immigration and
Deportation.
The
Subic
Bay
Metropolitan Authority referred to
in Section 13 of this Act may also
issue working visas renewable
every two (2) years to foreign
executives
and
other
aliens
possessing highly-technical skills
which no Filipino within the Subic
Special Economic Zone possesses,
as certified by the Department of
Labor and Employment. The names
of
aliens
granted
permanent
residence status and working visas
by the Subic Bay Metropolitan
Authority shall be reported to the
Bureau
of
Immigration
and
Deportation within thirty (30) days
after issuance thereof.
(h) The defense of the zone and the
security of its perimeters shall be
the responsibility of the National
Government in coordination with
the
Subic
Bay
Metropolitan
Authority.
The
Subic
Bay
Metropolitan Authority shall provide
and establish its own internal
security and fire fighting forces;
and
(i) Except as herein provided, the
local government units comprising
the Subic Special Economic Zone
shall retain their basic autonomy
and identity. The cities shall be
governed
by
their
respective
charters and the municipalities
shall operate and function in

accordance with Republic Act No.


7160, otherwise known as the Local
Government Code of 1991.
In relation thereto, section 14 of the same
law provides:
Sec. 14. Relationship with the
Conversion Authority and the Local
Government Units.
(a) The provisions of existing laws,
rules and regulations to the
contrary notwithstanding, the Subic
Authority
shall
exercise
administrative powers, rule-making
and disbursement of funds over the
Subic Special Economic Zone in
conformity with the oversight
function
of
the
Conversion
Authority.
(b) In case of conflict between the
Subic Authority and the local
government units concerned on
matters affecting the Subic Special
Economic zone other than defense
and security, the decision of the
Subic Authority shall prevail.
Considering the lasting changes that will be
wrought in the social, political, and
economic existence of the people of Morong
by the inclusion of their municipality in the
Subic Special Economic Zone, it is but
logical to hear their voice on the matter via
an initiative. It is not material that the
decision of the municipality of Morong for
the inclusion came in the form of a
resolution for what matters is its enduring
effect on the welfare of the people of
Morong.

Finally, it cannot be gained that petitioners were


denied due process. They were not furnished a copy
of the letter-petition of Vice Mayor Edilberto M. de
Leon to the respondent COMELEC praying for denial
of their petition for a local initiative on Pambayang
Kapasyahan Blg. 10, Serye 1993. Worse, respondent
COMELEC granted the petition without affording
petitioners any fair opportunity to oppose it. This
procedural lapse is fatal for at stake is not an
ordinary right but the sanctity of the sovereignty of
the people, their original power to legislate through
the process of initiative. Ours is the duty to listen and
the obligation to obey the voice of the people. It
could well be the only force that could foil the
mushrooming abuses in government.
IN VIEW WHEREOF, the petition is GRANTED and
COMELEC Resolution 93-1623 dated July 6, 1993 and
Resolution 93-1676 dated July 13, 1993 are
ANNULLED and SET ASIDE. No costs.
SO ORDERED.