Petitioner additionally alleged that when the vote respecting Resolution No.
05 was taken, only the
THIRD DIVISION
[G.R. No. 147767. January 14, 2004]
MANUEL E. ZAMORA, petitioner, vs. GOVERNOR JOSE R. CABALLERO, ANESIO M. RANARIO, in
his capacity as Provincial Administrator, MARIANO KINTANAR, in his capacity as
Provincial Auditor, CARMEN R. RASUL, in his capacity as Provincial Treasurer, ROLANDO
L. OSORIO, BELINDA G. APAWAN, ARMANDO L. SERAS, RUWEL PETER S. GONZAGA,
ARMANDO C. CODILLA, RAUL B. BASAES, GRACIANO C. ARAFOL, JR., respondents.
DECISION
CARPIO-MORALES, J.:
Petitioner Manuel Zamora, a member of the Sangguniang Panlalawigan of Compostela Valley (the
Sanggunian), seeks to invalidate all acts executed and resolutions issued by the Sanggunian during its
sessions held on February 8 and 26, 2001 for lack of quorum.
It appears that on February 6, 2001, Vice-Governor Reynaldo Navarro sent a written notice of a
special session on February 7, 2001.[1] Upon the request of Governor Jose R. Caballero, however, the
scheduled special session was reset to February 8, 2001 without the benefit of a written notice.[2]
On February 8, 2001, the Sanggunian thus held a special session to, among other things, allow
the Governor to deliver his State of the Province Address. As only seven members of the fourteen-
member Sanggunian were present,[3] no resolution was considered.
On February 26, 2001, the Sanggunian held its 4 th regular session during which it issued
Resolution No. 05[4] declaring the entire province of Compostela Valley under a state of calamity and
Resolution No. 07[5] authorizing the Governor to, on behalf of the province, enter into a construction
contract (Contract) with Allado Construction Company, Inc. (the Allado Company) for the completion of
Phase II of the construction of the capitol building. During the same session, the Sanggunian accepted
the letter of irrevocable resignation submitted by Board Member Gemma Theresa M. Sotto.[6]
While only eight members of the Sanggunian were present at the commencement of the session
on February 26, 2001, the Journal of the Proceedings (Journal) and Resolution Nos. 05 and 07 showed
that a total of thirteen members attended it.[7]
Petitioner thus filed a petition[8] before the Regional Trial Court (RTC) of Nabunturan, Compostela
Valley against the Governor, et al., challenging the validity of the acts of the Sanggunian on February
26, 2001, alleging that while the Journal and Resolutions indicated the presence of 13 members, the
Sanggunian nonetheless conducted official business without a quorum [9] as only seven of its fourteen
members were actually present when the irrevocable letter of resignation of Board Member Sotto was
noted,[10] and the motions to declare the entire province of Compostela Valley under a state of
calamity[11] and to authorize the Governor to enter into the Contract with the Allado Company [12] were
approved.[13]
remaining six members voted for the adoption thereof, the then presiding officer Board Member Rolando
Osorio not having cast his vote;[14] that when Resolution No. 07 was taken up, however, then presiding
officer Osorio,[15] relinquished his seat to Board Member Graciano Arafol after the six members present
unanimously voted on the said resolution in the affirmative, following which Osorio cast his vote as a
member also in the affirmative, thereby authorizing the Governor to enter into the Contract with Allado
Company; and that Board Member Arafol thereafter relinquished his seat as presiding officer to Board
Member Osorio who once again assumed the duties of a presiding officer.[16]
Petitioner furthermore challenged the validity of the special session of February 8, 2001 for lack
of quorum, there being only seven members of the Sanggunian in attendance, and for lack of written
notice sent to all members at least 24 hours before the holding of the special session in accordance
with Section 52 (d)[17] of the Local Government Code of 1991 (LGC).[18]
Respondents, on the other hand, contended that since Board Member Sotto was in the United
States[19] at the time the questioned acts were executed and resolutions adopted, the actual number of
Board Members then in the country was thirteen which should be the basis of the determination of a
quorum.
Branch 3 of the RTC of Nabunturan, at Compostela Valley, by Order[20] of April 24, 2001, dismissed
the petition upon the following ratiocination:
. . . Gemma Theresa M. Sotto should not be counted as member for the purpose of determining the
number to constitute a quorum because she is in the United States of America. However, sub-paragraph
(b) [of section 53 of the Local Government Code] states and provides for compulsion of any member
absent without any justifiable cause.
This is interpreted by the Supreme Court in the case of Jose Avelino, petitioner vs. Mariano J. Cuenco,
respondent, G.R. No. L-2821, March 4, 1949.
Gemma Theresa M. Sotto is beyond the reach of the legal processes of the Sangguniang Panlalawigan
and could not be arrested to compel her to attend its session. Quorum should be determined on the
basis of the actual number of members of the body concerned rather than upon its full membership
which is fourteen (14). Therefore, in this case, with seven (7) members of the thirteen (13) members
present in constitutive of a quorum. x x x
Moreover, Presidential Decree 1818[21] prohibits the issuance of a restraining order or injunction in any
case involving government infrastructure projects.[22] (Emphases omitted)
Hence, the present petition for Certiorari under Rule 45, faulting the trial court for erroneously (1)
applying the case of Avelino v. Cuenco[23] to a controversy involving a local government unit; (2) taking
judicial notice of Board Member Sottos being in the United States without proof thereof; and (3) ruling
that to grant a Temporary Restraining Order would be in violation of P.D. 1818.[24]
Respondents question the authority of the Court to look beyond the Journal and Resolutions of
the Sanggunian[25] and assert that the construction of the capitol building [26] cannot be enjoined. And
they too assert that the presence of thirteen members at the February 26, 2001 session should be
conclusive on the strength of Arroyo v. De Venecia[27] and U.S. v. Pons.[28] Citation of these cases is
misplaced, however.
 In Arroyo v. De Venecia, this Court refused to inquire into allegations that the House of
Representatives failed to comply with the rules of procedures which the House itself promulgated absent
any showing that there was a violation of a constitutional provision or of the rights of private individuals.
In U.S. v. Pons, this Court did not go beyond the legislative journals which it found clear and
explicit, it holding that to disprove the entries in the journals, evidence must be adduced based merely
upon the memory or recollection of witnesses in contrast to journals which are the acts of the
Government or sovereign itself.[29]
In the instant case, this Court is not called upon to inquire into the Sanggunians compliance with
its own rules. Rather, it is called upon to determine whether the Sanggunian complied with the LGC, a
law enacted by Congress, and its Implementing Rules.
Moreover, the Journal of the Sanggunian is far from clear and explicit as to the presence of a
quorum when the questioned acts were taken. It does not indicate how many members were actually
present when the body voted on the motions leading to the adoption of Resolution Nos. 05 and 07.
While the Journal and the Resolutions show that 13 members attendedthe session,[30] the Journal
shows that only six members were called by the presiding officer to vote on the motions.[31] Six members
whose names appear in attendance, namely: Vice Governor Navarro and Board Members Zamora,
Yanong, Castillo, Andres and Gentugaya, were not called and, save for the absent Vice Governor,[32] no
explanation was given therefor.
Coincidentally, in Resolutions 05 and 07, the names of the Board Members who were not called
upon to vote, including petitioner as he had in the meantime left, are followed by two asterisks (**).
Additionally, it was clearly noted by petitioner, when he asked permission to leave the session,
that only seven members were left:
SP Member ZAMORA : Mr. President, I move to adjourn, Mr. President.
SP Member ARAFOL : Objection Mr. President.
SP Member ZAMORA : Mr. President, before the objection, before objection Mr. President, I would like
to invite everybody to go at my service I have a patient nga gi-pagawas na sa hospital nga i-uli na sa
Awao, its been there for one hour so I really have to go I have to carry that patient to Awao Mr. President.
SP Member OSORIO : You are excused Honorable
SP Member ZAMORA : Okay, then remember that youre only seven Mr. President.
SP Member ARAFOL : No problem.
SP Member ZAMORA : Okay so its alright for you to decide. The seven of you. I would like to manifest
in the record that before further discussion that
SP Member GONZAGA : Mr. President he is already excused Mr. President.
SP Member ZAMORA : Yes but I would like to make statement first for the record, for the record. That
I do not want Mr. President that the incident of the of the State of the Province Address will be repeated
Mr. President, wherein there are only seven members present and the quorum was declared Mr.
President. x x x
SP Member GONZAGA : Thats only your opinion . . .[33] (Underscoring supplied)
Respondents themselves admit that there were only seven members present when the motions
were voted upon:
26. Nevertheless, even if that remark constituted a proper question on quorum, it is a matter of fact
that there were still seven (7) members present. x x x [T]here is a quorum since seven is a majority
of thirteen (13). x x x [34] (Emphasis supplied.)
Clearly, this Court is constrained to look into the proceedings of the Sanggunian as recorded in
the Journal and not just rely on Resolution Nos. 05 and 07 to determine who and how many
participated in the consideration thereof. The placing of the asterisks after the names of five members
in the Resolutions is highly irregular and suspicious especially since both resolutions indicate that
petitioner, whose name is also followed by asterisks, was present even if it is clear from the Journal
that he had already left the session before the Sanggunian took note of the resignation of Board Member
Sotto and voted on the motions.
Respondents other contention that the construction of the capitol building cannot be enjoined in
light of Malaga v. Penachos, Jr.[35] fails to convince. In Malaga, this Court declared that although
Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving
infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining
orders against administrative acts in controversies involving facts or the exercise of discretion in
technical cases. On issues clearly outside this dimension and involving questions of law, this Court
declared that courts could not be prevented from exercising their power to restrain or prohibit
administrative acts.[36]
Respondents maintain that the exception in Malaga as indicated above should not be applied in
the instant case because there was therein a defect in the compliance with procedural rules on bidding.
In contrast, respondents stress, the bidding for the construction of the capitol building in which the
winner was the Allado Company was not defective, they adding that Resolution 07 simply authorized
the Governor to formalize the Contract necessary for the full implementation of the project.[37]
This Court fails to see the essential difference between Malaga and the instant case.
In both cases, the defect in the Contract relates to the non-compliance with the mandate of a law
respecting requirements before validly entering into a contract. In Malaga, the defect pertained to
bidding. In the present case, the alleged defect pertains to the required number of votes necessary to
authorize the Governor to enter into a construction contract.
Clearly then, what is at issue in this case is not the propriety or the wisdom of entering into the
Contract for the construction of the capitol building, which is beyond the power of this Court to enjoin,
but the Sanggunians compliance with the requirements prescribed under the LGC before it may grant
the Governor authority to enter into the Contract, which issue falls under the exception to the
proscription against injunctions in cases involving infrastructure projects, as held in Malaga.
On the applicability of Avelino[38] to the present case: The issue in said case was whether there was
a quorum in a meeting attended by only 12 of 24 senators, one having been in the hospital while another
was out of the country. This Court held that although the total membership of the Senate was 24, the
presence of 12 members already constituted a quorum since the 24th member was outside the country
and beyond the coercive power of the Senate.[39]
In the instant case, there is nothing on record, save for respondents allegation, to show that Board
Member Sotto was out of the country and to thereby conclude that she was outside the coercive power
of the Sanggunian when the February 8 and 26, 2001 sessions were held. In fact it is undisputed that
the leave form filed by said Board Member before the Department of Interior and Local Government
(DILG) did not mention that she was going out of the country.[40] Petitioners contention that the trial
court cannot take judicial notice of Board Member Sottos whereabouts is thus well taken. On this score,
the instant case is outside the application of the doctrine in Avelino.
A court may take judicial notice of matters of public knowledge, or those which are capable of
unquestionable determination or ought to be known to judges because of their judicial
functions.[41] With respect to disputed facts, however, the court must receive evidence thereof, with
notice to the parties.[42]
Also, in Avelino, the legislative body involved was the Senate and the applicable rule on quorum
was that embodied in Article VI, Section 10 of the 1935 Constitution which reads:
Section 10. x x x
(2) A majority of each House shall constitute a quorum to do business, but a smaller
number may adjourn from day to day and may compel the attendance of absent
Members in such manner and under such penalties as such House may
provide.[43] (Emphasis supplied)
The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of
Compostela Valley Province, and the applicable rule respecting quorum is found in Section 53(a) of the
LGC which provides:
Section 53. Quorum.-
(a) A majority of all members of the sanggunian who have been elected and qualified shall
constitute a quorum to transact official business. Should a question of quorum be raised during a
session, the presiding officer shall immediately proceed to call the roll of the members and thereafter
announce the results. (Emphasis supplied)
Quorum is defined as that number of members of a body which, when legally assembled in their
proper places, will enable the body to transact its proper business or that number which makes a lawful
body and gives it power to pass upon a law or ordinance or do any valid act.[44] Majority, when required
to constitute a quorum, means the number greater than half or more than half of any total. [45] In fine,
the entire membership must be taken into account in computing the quorum of
the sangguniang panlalawigan, for while the constitution merely states that majority of
each House shall constitute a quorum, Section 53 of the LGC is more exacting as it requires that the
majority of all members of the sanggunian . . . elected and qualified shall constitute a quorum.
The difference in the wordings of the Constitution and the LGC is not merely a matter of style and
writing as respondents would argue, but is actually a matter of meaning and intention.[46] The
qualification in the LGC that the majority be based on those elected and qualified was meant to
allow sanggunians to function even when not all members thereof have been proclaimed.[47] And, while
the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function
even when not all members thereof have been proclaimed and have assumed office, the provision
necessarily applies when, after all the members of the sanggunian have assumed office, one or some of
its members file for leave.What should be important then is the concurrence of election to and
qualification for the office. And election to, and qualification as member of, a local legislative body are
not altered by the simple expedient of filing a leave of absence.
The trial court should thus have based its determination of the existence of a quorum on the total
number of members of the Sanggunian without regard to the filing of a leave of absence by Board
Member Sotto. The fear that a majority may, for reasons of political affiliation, file leaves of absence in
order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power
to a mere majority of sanggunian members present when there is no quorum.[48]
A sanggunian is a collegial body. Legislation, which is the principal function and duty of
the sanggunian, requires the participation of all its members so that they may not only represent the
interests of their respective constituents but also help in the making of decisions by voting upon every
question put upon the body. The acts of only a part of the Sanggunian done outside the parameters of
the legal provisions aforementioned are legally infirm, highly questionable and are, more importantly,
null and void. And all such acts cannot be given binding force and effect for they are considered
unofficial acts done during an unauthorized session.
Board Member Sotto is then deemed not resigned because there was no quorum when her letter
of irrevocable resignation was noted by the Sanggunian. For the same reason, Resolution Nos. 05 and
07 are of no legal effect.
Even assuming arguendo that there were indeed thirteen members present during the questioned
February 26, 2001 session, Resolution No. 05 declaring the entire province of Compostela Valley under
state of calamity is still null and void because the motion for its approval was approved by only six
members.[49] When there are thirteen members present at a session, the vote of only six members can
not, at any instance, be deemed to be in compliance with Section 107(g)[50] of the Rules and Regulations
Implementing the LGC which requires the concurrence of the approval by the majority of the members
present and the existence of a quorum in order to validly enact a resolution.
The motion to grant the Governor authority to enter into the construction contract is also deemed
not approved in accordance with the law even if it received seven affirmative votes, which is already the
majority of thirteen, due to the defect in the seventh vote. For as priorly stated, as the Journal confirms,
after all six members voted in the affirmative, Board Member Osorio, as acting presiding officer,
relinquished his seat to Board Member Arafol and thereafter cast his vote as a member in favor of
granting authority to the Governor.[51]
This Court is faced with an act clearly intended to circumvent an express prohibition under the
law a situation that will not be condoned.[52] The LGC clearly limits the power of presiding officers to
vote only in case of a tie, to wit:
Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of the sangguniang
panlalawigan x x x. The presiding officer shall vote only to break a tie.
(b) In the event of inability of the regular presiding officer to preside at a sanggunian session, the
members present and constituting a quorum shall elect from among themselves a temporary presiding
officer. x x x (Italics in the original. Emphasis supplied.)
 While acting as presiding officer, Board Member Osorio may not, at the same time, be allowed to
exercise the rights of a regular board member including that of voting even when there is no tie to
break. A temporary presiding officer who merely steps into the shoes of the presiding officer could not
have greater power than that possessed by the latter[53] who can vote only in case of a tie.
Lastly, for a resolution authorizing the governor to enter into a construction contract to be valid,
the vote of the majority of all members of the Sanggunian, and not only of those present during the
session, is required in accordance with Section 468[54] of the LGC in relation to Article 107[55] of its
Implementing Rules.
Even including the vote of Board Member Osorio, who was then the Acting Presiding Officer,
Resolution No. 07 is still invalid. Applying Section 468 of the LGC and Article 107 of its Implementing
Rules, there being fourteen members in the Sanggunian, the approval of eight members is required to
authorize the governor to enter into the Contract with the Allado Company since it involves the creation
of liability for payment on the part of the local government unit.
WHEREFORE, the petition is hereby GRANTED. The assailed Order of the Regional Trial Court of
Nabunturan, Compostela Valley dated April 24, 2001 is hereby reversed and set aside.
Resolution Nos. 05 and 07 of the Sangguniang Panlalawigan of Compostela Valley approved on
February 26, 2001 declaring the entire Province of Compostela Valley under a state of calamity and
granting authority to the Provincial Governor to enter into a general construction agreement,
respectively, are hereby declared null and void.
SO ORDERED.

EN BANC
LA CARLOTA CITY, NEGROS OCCIDENTAL, G.R. No. 181367
represented by its Mayor, HON. JEFFREY P.
FERRER,*and the SANGGUNIANG PANLUNGSOD
OF LA CARLOTA CITY, NEGROS OCCIDENTAL,
represented by its Vice-Mayor, HON. DEMIE JOHN
C. HONRADO,** Present:

Petitioners,

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

- versus - DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,

ATTY. REX G. ROJO, SERENO,

Respondent. REYES, and

PERLAS-BERNABE, JJ.
 Selection Board and the Human Resource Management Officer did not sign the certifications,
the latter relative to the completeness of the documents as well as to the publication
Promulgated: requirement. In view of the failure of the appointing authority to comply with the directive, the
said CSCFO considered the appointment of Rojo permanently recalled or withdrawn, in a
subsequent Letter to Jalandoon dated April 14, 2004.
April 24, 2012

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
Jalandoon deemed the recall a disapproval of the appointment, hence, he brought the matter
to the CSC Regional Office No. 6 in Iloilo City, by way of an appeal. He averred that the Human
Resource Management Officer of La Carlota City refused to affix his signature
DECISION on Rojos appointment documents but nonetheless transmitted them to the CSCFO. Such
transmittal, according to Jalandoon, should be construed that the appointment was complete
and regular and that it complied with the pertinent requirements of a valid appointment. Before
the said CSC Regional Office No. 6 [could resolve the appeal], the City of La Carlota represented
by the newly elected mayor, Hon. Jeffrey P. Ferrer and
the Sangguniang Panlungsod represented by the newly elected Vice-Mayor, Hon. Demie John
C. Honrado, collectively, the petitioners herein, intervened. They argued that Jalandoon is not
CARPIO, J.: the real party in interest in the appeal but Rojo who, by his inaction, should be considered to
have waived his right to appeal from the disapproval of his appointment; that the appointment
was made within the period of the election ban prior to the May 14, 2004 national and local
elections, and finally, that the resignation of Rojo as member of
the Sangguniang Panlungsod is ineffective having not complied with the provision on quorum
This petition for review assails the 14 September 2007 Decision1 and the 18 January 2008 under Section 82(d) of R.A. No. 7160.
Resolution2 of the Court of Appeals in CA-G.R. CEB-SP No. 01377. The Court of Appeals affirmed
Resolution Nos. 0506543 and 0516464 of the Civil Service Commission, which affirmed the Decision
dated 20 September 2004 of the Civil Service Commission Regional Office (CSCRO) No. VI, Iloilo City,
approving the appointment of respondent Atty. Rex G. Rojo (respondent)
as Sangguniang Panlungsod Secretary under a permanent status. In a Decision dated September 20, 2004, the CSC Regional Office No. 6 reversed and set aside
the CSCFOs earlier ruling. On the argument of the intervenors that the former Vice-Mayor
lacked legal personality to elevate the case on appeal, the regional office cited settled
jurisprudence that the disapproval of an appointment affects the discretionary authority of the
appointing authority. Hence, he alone may request for reconsideration of or appeal the
The Facts disapproval of an appointment. The regional office likewise ruled that Rojos appointment on
March 18, 2004 was made outside the period of the election ban from March 26 to May 9, 2004,
and that his resignation from the Sangguniang Panlungsod was valid having been tendered
with the majority of the council members in attendance (seven (7) out of the thirteen councilors
The facts as found by the Court of Appeals are as follows: were present). Considering that the appointment of Rojo sufficiently complied with the
publication requirement, deliberation by the Personnel Selection Board, certification that it was
issued in accordance with the limitations provided for under Section 325 of R.A. 7160 and that
appropriations or funds are available for said position, the regional office approved the same.
xxx
On March 18, 2004, [the] then Vice-Mayor Rex R. Jalandoon of La Carlota City, Negros
Occidental appointed Atty. Rex G. Rojo (or Rojo) who had just tendered his resignation as
member of the Sangguniang Panlungsod the day preceding such appointment,
as Sangguniang Panlungsod Secretary. The status of the appointment was permanent. The
next day, March 19, 2004, the Vice-Mayor submitted Rojos appointment papers to the Civil Mayor Ferrer and Vice-Mayor Honrado appealed the foregoing Decision of the CSC Regional
Service Commission Negros Occidental Field Office (CSCFO-Negros Occidental) for attestation. Office No. 6 to the Civil Service Commission (or Commission). On May 17, 2005, the
In a Letter dated March 24, 2004, the said CSCFO wrote Jalandoon to inform him of the Commission dismissed said appeal on the ground that the appellants were not the appointing
infirmities the office found on the appointment documents, i.e. the Chairman of the Personnel authority and were therefore improper parties to the appeal. Despite its ruling of dismissal, the
Commission went on to reiterate CSC Regional Offices discussion on the appointing authoritys
 compliance with the certification and deliberation requirements, as well as the validity of
appointees tender of resignation. x x x
The Court of Appeals also found that the appointment of respondent on 18 March 2004 did not violate
the election ban period which was from 26 March to 9 May 2004. Furthermore, there was no substantial
evidence to show that the appointment was a midnight appointment.
It likewise denied the motion for reconsideration thereafter filed by the petitioners in a
Resolution dated November 8, 2005.5

Petitioners filed a petition for review with the Court of Appeals. On 14 September 2007, the Court of
Appeals denied the petition, and affirmed Resolution Nos. 050654 and 051646 of the Civil Service
Commission, dated 17 May 2005 and 8 November 2005, respectively. Petitioners filed a Motion for
Reconsideration, which the Court of Appeals denied in its Resolution dated 18 January 2008.
Thus, the Court of Appeals concluded that since respondent possessed the minimum qualifications for
the position of Sangguniang Panlungsod Secretary, and the appointing authority has adequately
complied with the other requirements for a valid appointment, then the Civil Service Commissions
approval of the appointment was only proper.

The Issues

Hence, this petition for review.

Petitioners raise the following issues:

The Ruling of the Court of Appeals

1. WHETHER THE APPOINTMENT OF RESPONDENT AS SANGGUNIANG

PANLUNGSOD SECRETARY VIOLATED THE CONSTITUTIONAL PROSCRIPTION AGAINST
Citing Section 9(h), Article V of Presidential Decree No. 807 6 or the Civil Service Decree, the Court of ELIGIBILITY OF AN ELECTIVE OFFICIAL FOR APPOINTMENT DURING HIS TENURE; and
Appeals held that in the attestation of an appointment made by a head of agency, the duty of the Civil
Service Commission does not go beyond ascertaining whether the appointee possesses the appropriate 2. WHETHER RESPONDENTS APPOINTMENT AS SANGGUNIANG PANLUNGSOD SECRETARY
civil service eligibility and the minimum statutory qualifications.7 In this case, the Court of Appeals WAS ISSUED CONTRARY TO EXISTING CIVIL SERVICE RULES AND REGULATIONS.10
found that respondent met the minimum qualifications for the position of Secretary of the Sanggunian,
as enumerated under Section 469(b), Article I, Title V of the Local Government Code.8 In fact, the Court
of Appeals held that respondent is more than qualified for the position considering that respondent is
a lawyer and an active member of the bar. Furthermore, the requirements for the appointment of
respondent have been substantially complied with: (a) publication; (b) Personnel Selection Board
deliberation; and (c) certification from the appropriate offices that appropriations or funds are available
for the position. Thus, the Court of Appeals ruled that there was no sufficient reason for the Commission The Ruling of the Court
to disapprove respondents appointment.

Petitioners allege that respondents appointment as Sangguniang Panlungsod Secretary is void.

On the issue of the lack of signature of the Human Resource Management Officer of La Carlota City on
respondents appointment papers, the Court of Appeals held that such refusal of the officer to affix his
signature should not affect the validity of the appointment. Otherwise, it would be tantamount to
putting the appointing power under the mercy of a department head who may without reason refuse to
perform a ministerial function, as what happened in the instant case.9
Petitioners maintain that respondents irrevocable resignation as a SangguniangPanlungsod member
was not deemed accepted when it was presented on 17 March 2004 during the scheduled regular
session of the Sangguniang Panlungsod of La Carlota City, Negros Occidental for lack of quorum.
Consequently, respondent was still an incumbent regular Sangguniang Panlungsod member when then
Vice Mayor Jalandoon appointed him as Sangguniang Panlungsod Secretary on 18 March 2004, which
contravenes Section 7, Article IX-B of the Constitution.11

The resolution of this case requires the application and interpretation of certain provisions of Republic
Act No. 7160 (RA 7160), otherwise known as the Local Government Code of 1991. The pertinent
provisions read:
Section 82. Resignation of Elective Local Officials. (a) Resignations by elective local officials
shall be deemed effective only upon acceptance by the following authorities:
(1) The President, in the case of governors, vice-governors, and mayors and vice-mayors of
highly urbanized cities and independent component cities;
(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors and city
vice-mayors of component cities;
(3) The sanggunian concerned, in case of sanggunian members; and
(4)The city or municipal mayor, in the case of barangay officials.
(b) Copies of the resignation letters of elective local officials, together with the action taken by
the aforesaid authorities, shall be furnished the Department of Interior and Local Government.
(c) The resignation shall be deemed accepted if not acted upon by the authority concerned
within fifteen (15) working days from receipt thereof.
(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon
presentation before an open session of the sanggunian concerned and duly entered in its
records: Provided, however,That this subsection does not apply to sanggunian members who
are subject to recall elections or to cases where existing laws prescribe the manner of acting
upon such resignations.
Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of
the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the
municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of
the sangguniang barangay. The presiding officer shall vote only to break a tie.
(b) In the event of the inability of the regular presiding officer to preside at
a sanggunian session, the members present and consisting a quorum shall elect from among
themselves a temporary presiding officer. He shall certify within ten (10) days from the passage
of ordinances enacted and resolutions adopted by the sanggunian in the session over which he
temporarily presided.
Section 52. Sessions. (a) On the first day of the session immediately following the election of its
members, the sanggunian shall, by resolution, fix the day, time, and place of its regular
sessions. The minimum number of regular sessions shall be once a week for
the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan, and twice
a month for the sangguniang barangay.
(b) When public interest so demands, special session may be called by the local chief executive
or by a majority of the members of the sanggunian.
(c) All sanggunian sessions shall be open to the public unless a closed-door session is ordered
by an affirmative vote of a majority of the members present, there being a quorum, in the public
interest or for reasons of security, decency, or morality. No two (2) sessions, regular or special,
may be held in a single day.
(d) In the case of special sessions of the sanggunian, a written notice to the members shall be
served personally at the members usual place of residence at least twenty-four (24) hours before
the special session is held. Unless otherwise concurred in by two-thirds (2/3) vote of
the sanggunian members present, there being a quorum, no other matters may be considered
at a special session except those stated in the notice.
(e) Each sanggunian shall keep a journal and record of its proceedings which may be published
upon resolution of the sanggunian concerned.
Section 53. Quorum. (a) A majority of all the members of the sanggunian who have been
elected and qualified shall constitute a quorum to transact official business. Should a
question of quorum be raised during a session, the presiding officer shall immediately proceed
to call the roll of the members and thereafter announce the results.
(b) Where there is no quorum, the presiding officer may declare a recess until such time as a
quorum is constituted, or a majority of the members present may adjourn from day to day and
may compel the immediate attendance of any member absent without justifiable cause by
designating a member of the sanggunian, to be assisted by a member or members of the police
force assigned in the territorial jurisdiction of the local government unit concerned, to arrest
the absent member and present him at the session.
 (c) If there is still no quorum despite the enforcement of the immediately preceding subsection, organization and operation of the local government units. Section 3, Article X of the 1987 Constitution
no business shall be transacted. The presiding officer, upon proper motion duly approved by states:
the members present, shall then declare the session adjourned for lack of quorum.

Section 3. The Congress shall enact a local government code which shall provide for a more
Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the responsive and accountable local government structure instituted through a system of
city, shall be composed of the city vice-mayor as presiding officer, the decentralization with effective mechanism of recall, initiative, and referendum, allocate among
regular sanggunian members, the president of the city chapter of the different local government units their powers, responsibilities, and resources, and provide
the liga ng mga barangay, the president of for the qualifications, election, appointment and removal, term, salaries, powers and
the panlungsod na pederasyon ng mga sangguniang kabataan, and functions and duties of local officials, and all other matters relating to the organization
the sectoral representatives, as members. and operation of the local units. (Emphasis supplied)

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women;
and as shall be determined by the sanggunian concerned within ninety (90) days prior to the
holding of the local elections, one (1) from the agricultural or industrial workers; and one (1)
from the other sectors, including the urban poor, indigenous cultural communities, or disabled
persons.
Thus, the Local Government Code shall x x x provide for the x x x powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units. In
(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall short, whether a vice-mayor has the power, function or duty of a member of
be elected in the manner as may be provided for by law. (Boldfacing supplied) the Sangguniang Panlungsod is determined by the Local Government Code.

Petitioners insist that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not On 10 October 1991, the Congress approved RA 7160 or the Local Government Code. Under RA 7160,
be counted in determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) the city vice-mayor, as presiding officer, is a member of the SangguniangPanlungsod, thus:
out of the twelve (12) members of the Sangguniang Panlungsod who were present on 17 March 2004.
Since the required majority of seven (7) was not reached to constitute a quorum, then no business
could have validly been transacted on that day including the acceptance of respondents irrevocable
resignation.
Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of
the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the
municipal vice-mayor, of the sangguniang bayan; and the punong barangay, of
the sangguniang barangay. The presiding officer shall vote only to break a tie.
On the other hand, respondent maintains that in this case, the Sangguniang Panlungsod consists of
the presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen
(13) members. Citing the Department of Interior and Local Government (DILG) Opinion No. 28, s.
2000,12 dated 17 April 2000, respondent asserts that the vice-mayor, as presiding officer, should be
included in determining the existence of a quorum. Thus, since there were six (6) members plus the (b) In the event of the inability of the regular presiding officer to preside at
presiding officer, or a total of seven (7) who were present on the 17 March 2004 regular session of a sanggunian session, the members present and consisting a quorum shall elect from among
the Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of themselves a temporary presiding officer. He shall certify within ten (10) days from the passage
respondent was validly accepted. of ordinances enacted and resolutions adopted by the sanggunian in the session over which he
temporarily presided.

The 1987 Constitution mandates Congress to enact a local government code which provides, among
others, the powers, functions and duties of local officials and all other matters relating to the Section 457. Composition. (a) The sangguniang panlungsod, the legislative body of the
city, shall be composed of the city vice-mayor as presiding officer, the
 regular sanggunian members, the president of the city chapter of presiding officer. We did not make any change in the city because the city vice-mayor is already
the liga ng mga barangay, the president of the presiding officer.
the panlungsod na pederasyon ng mga sangguniang kabataan, and
the sectoral representatives, as members.

The President. All right.

(b) In addition thereto, there shall be three (3) sectoral representatives: one (1) from the women;
and as shall be determined by the sanggunian concerned within ninety (90) days prior to the
holding of the local elections, one (1) from the agricultural or industrial workers; and one (1)
from the other sectors, including the urban poor, indigenous cultural communities, or disabled Senator Rasul, Senator Lina, and Senator Gonzales.
persons.

Senator Gonzales. May I just add something to that statement of Senator Pimentel?
(c) The regular members of the sangguniang panlungsod and the sectoral representatives shall
be elected in the manner as may be provided for by law. (Boldfacing and underscoring supplied)

The President. All right.

RA 7160 clearly states that the Sangguniang Panlungsod shall be composed of the city vice-mayor
as presiding officer, the regular sanggunian members, the president of the city chapter of
the liga ng mga barangay, the president of
the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as
members. Blacks Law Dictionary defines composed of as formed of or consisting of. As the presiding
officer, the vice-mayor can vote only to break a tie. In effect, the presiding officer votes when it matters
the most, that is, to break a deadlock in the votes. Clearly, the vice-mayor, as presiding officer, is a
member of the Sangguniang Panlungsod considering that he is mandated under Section 49 of RA 7160
to vote to break a tie. To construe otherwise would create an anomalous and absurd situation where
the presiding officer who votes to break a tie during a Sanggunian session is not considered a member
of the Sanggunian.
Senator Gonzales. Reading this bill, there is also a fundamental change in the sense that
the provincial governor, the city mayor, the municipal mayor, as well as,
the punong barangay are no longer members of their respective sanggunian; they are no
longer members. Unlike before, when they were members of their respective sanggunian,
now they are not only the presiding officers also, they are not members of their
respective sanggunian.
Senator Pimentel. May I thank Senator Gonzales for that observation. (Boldfacing supplied)

The Senate deliberations on Senate Bill No. 155 (Local Government Code) show the intent of the
Legislature to treat the vice-mayor not only as the presiding officer of the Sangguniang Panlungsod but
also as a member of the Sangguniang Panlungsod. The pertinent portions of the deliberations read:

Senator Pimentel. Before Senator Rasul and Senator Lina take the floor, Mr. President, may I During the deliberations, Senator Pimentel, the principal author of the the Local Government Code of
reiterate this observation, that changes in the presiding officership of the 1991, clearly agrees with Senator Gonzales that the provincial governor, the city mayor, and the
local sanggunians are embodied for the municipality where the vice-mayor will now be the municipal mayor who were previously the presiding officers of their respective sanggunian are no longer
presiding officer of the sanggunian and the province where the vice-governor will now be the the presiding officers under the proposed Local Government Code, and thus, they ceased to be members
of their respective sanggunian.13 In the same manner that under the Local Government Code of 1991,
the vice-governor, the city vice-mayor, and the municipal vice-mayor, as presiding officers of In stating that there were fourteen (14) members of the Sanggunian,16 the Court in Zamora clearly
the Sangguniang Panlalawigan, Sangguniang Panlungsod, Sangguniang Bayan, respectively, are included the Vice-Governor, as presiding officer, as part of the entire membership of
members of their respective sanggunian. the Sangguniang Panlalawigan which must be taken into account in computing the quorum.

In the 2004 case of Zamora v. Governor Caballero,14 the Court interpreted Section 53 of RA 7160 to DILG Opinions, which directly ruled on the issue of whether the presiding officer should be included to
mean that the entire membership must be taken into account in computing the quorum of determine the quorum of the sanggunian, have consistently conformed to the Courts ruling in Zamora.
the sangguniang panlalawigan. The Court held:

In DILG Opinion No. 46, s. 2007, the Undersecretary for Local Government clearly stated that the vice-
Quorum is defined as that number of members of a body which, when legally assembled in mayor is included in the determination of a quorum in the sanggunian. The DILG Opinion reads:
their proper places, will enable the body to transact its proper business or that number which
makes a lawful body and gives it power to pass upon a law or ordinance or do any valid
act. Majority, when required to constitute a quorum, means the number greater than half or
more than half of any total. In fine, the entire membership must be taken into account in
computing the quorum of the sangguniang panlalawigan, for while the constitution merely DILG Opinion No. 46, s. 2007
states that majority of each House shall constitute a quorum, Section 53 of the LGC is more
exacting as it requires that the majority of all members of the sanggunian . . . elected and 02 July 2007
qualified shall constitute a quorum.

MESSRS. JAMES L. ENGLE,

The trial court should thus have based its determination of the existence of a quorum on the
total number of members of the Sanggunian without regard to the filing of a leave of absence FEDERICO O. DIMPAS, JR.,
by Board Member Sotto. The fear that a majority may, for reasons of political affiliation, file
leaves of absence in order to cripple the functioning of the sanggunian is already addressed by
the grant of coercive power to a mere majority of sanggunian MARIFE G. RONDINA,

members present when there is no quorum. PORFERIO D. DELA CRUZ, and

WINSTON B. MENZON
A sanggunian is a collegial body. Legislation, which is the principal function and duty of
the sanggunian, requires the participation of all its members so that they may not only Sangguniang Bayan Membership
represent the interests of their respective constituents but also help in the making of decisions
by voting upon every question put upon the body. The acts of only a part of Babatngon, Leyte
the Sanggunian done outside the parameters of the legal provisions aforementioned are legally
infirm, highly questionable and are, more importantly, null and void. And all such acts cannot
be given binding force and effect for they are considered unofficial acts done during an
unauthorized session.15
Dear Gentlemen and Lady:

This has reference to your earlier letter asking our opinion on several issues, which we quoted
herein in toto:

(1) What is the number that would determine the quorum of our sanggunian that has a
total membership of eleven (11) including the vice-mayor?
(2) Are the resolutions adopted by a sanggunian without quorum valid?
In reply to your first query, may we invite your attention to Section 446 (a) of the Local
Government Code of 1991 (RA 7160) which provides and we quote:
SECTION 446. Composition. (a) The Sangguniang bayan, the legislative body of the municipality,
shall be composed of the municipal vice-mayor as the presiding officer, the
regular sangguniangmembers, the president of the municipal chapter
the liga ng mga barangay, the president
the pambayang pederasyon ng mga sangguniang kabataan, and the sectoral representatives,
as members.
Based on the aforequoted provision, the Sangguniang Bayan is composed of eight (8)
regular members, the Liga ng mga Barangay President, the SK Federation President, the
Vice-Mayor as Presiding Officer and the sectoral representatives.
Under the old Local Government Code (Batas Pambansa Blg. 337), the Presiding Officer
then of the sanggunian was the Mayor. Thus, there was a dilemma as to whether or not
the Vice-Mayor, as Presiding Officer, is to be included in the determination of quorum in
the Sangguniang Bayan. This issue was, however, resolved with the advent of the new
Local Government Code of 1991 (RA 7160) providing the aforequoted provision. Hence,
the vice-mayor is included in the determination of a quorum in the sanggunian.
Based on the aforequoted provision, sectoral representatives are also included in the
determination of quorum in the sangguniang bayan. Let it be noted however
that sectoral representatives in the local sanggunian are, pursuant to Section 41 (c) of RA 7160
and Section 10 (b) of RA 9264, to be elected in a manner as may be provided for by
law. Meantime however, Congress has yet to enact a law providing for the manner of
electing sectoral representatives at the local sanggunians. Such being the
case, sectoral representatives are not, in the meantime, included in the determination of
quorum in the local sanggunians.
In view of the foregoing, the Sangguniang Bayan is composed of the 8 regular members,
the Liga ng mga Barangay President and the SK Federation President as ex-officio
members, and the Vice-Mayor as Presiding Officer. The total membership in
that sanggunian, therefore, is eleven (11). Relative thereto, Section 53 of the Local
Government Code of 1991 provides that a majority of all the members of the sanggunian who
have been elected and qualified shall constitute a quorum to transact official
business. Majority has been defined in Santiago vs. Guingona, et al.(G.R. No. 134577, 18
November 1998) as that which is greater than half of the membership of the body. Following
the said ruling, since the total membership of the sanggunian being 11, 11 divided by 2 will
give us a quotient of 5.5. Let it be noted however that a fraction cannot be considered as one
whole vote, since it is physically and legally impossible to divide a person or even his vote into
a fractional part. Accordingly, we have to go up to the next whole number which is 6. In this
regard, 6 is more than 5.5 and therefore, more than one-half of the total membership of
the sangguniangbayan in conformity with the jurisprudential definition of the term majority.
Thus, the presence of 6 members shall already constitute a quorum in
of the sangguniang bayan for it to conduct official sessions.
of
xxxx
Very truly yours,
(signed)
AUSTERE A. PANADERO
OIC, OUSLG17
In another DILG Opinion dated 9 February 2010, the Undersecretary for Local Government opined that
the Vice-Governor, as a Presiding Officer of the Sangguniang Panlalawigan, is a composite member
thereof and is included in the determination of the quorum. DILG Opinion No. 13, s. 2010 reads:
DILG Opinion No. 13, s. 2010
09 February 2010 2) Whether or not the vice governor as the presiding officer is included in the count in
determining the majority of all the members of the sangguniang panlalawigan to validly
pass an appropriation ordinance.

GOVERNOR JESUS N. SACDALAN

VICE-GOVERNOR EMMANUEL F. PIOL 3) Whether or not the board member who signed the Committee Report endorsing the 2010
Proposed Annual Performance Budget may withdraw without just and valid cause his signature
thereon and vote against the approval thereof?
Provincial Capitol Building

Province of Cotabato
4) In the event that the Province operates under a re-enacted budget, what are those
expenditures included in the term essential operating expenses that may be incurred by the
Province?
Gentlemen:

xxxx
This has reference to your earlier separate letters, which we herein consolidated, considering
that they both pertain to one subject matter.

Per your letters, the Sangguniang Panlalawigan held its regular session on 12 January 2010
where the August Body embarked upon the approval of the Annual Budget. According to you,
all fourteen (14) members of the Sangguniang Panlalawigan attended said session, namely: ten
(10) regular Sangguniang Panlalawigan Members, three (3) ex-
officio Sangguniang PanlalawiganMembers and the Vice-Governor as the Presiding Officer. You
further represented that when said approval of the Annual Budget was submitted
for votation of said August Body, the result was: seven (7) members voted for the approval of the
Annual Budget and six (6) voted against.
Specifically, you want us to shed light on the following issues:
For the sanggunian to officially transact business, there should be a quorum. A quorum is
defined by Section 53 of the Local Government Code of 1991 as referring to the presence of the
majority of all the members of the sanggunian who have been duly elected and qualified.
Relative thereto, generally, ordinary measures require for its enactment only the approval of a
simple majority of the sanggunian members present, there being a quorum. These pertain to
the normal transactions of the sanggunian which are approved by the sanggunian through a
vote of simple majority of those present. On the other hand, there are certain measures where
the Local Government Code requires for its approval the vote of majority of all the members
who were duly elected and qualified. This is what we call approval by the qualified majority of
the sanggunian. In this case, the approval is to be voted not just by the majority of those
present in a session there being a quorum but by the majority of all the members of
the sanggunian duly elected and qualified regardless of whether all of them were present or not
in a particular session, there being a quorum.

xxxx
1) Whether or not the august body has reached the required majority of all the members of
the Sangguniang Panlalawigan as provided for in Sections 53 and 54 of the Local Government
Code and in relation to Article 107 (g) of its Implementing Rules and Regulations?
In determining a quorum, Section 53 of the Local Government Code of 1991 provides
that a majority of all the members of the sanggunian who have been elected and qualified
shall constitute a quorum. Along this line, it bears to emphasize that per Section 467 (a)
of the Local Government Code of 1991, the Sangguniang Panlalawigan is a composite
body where the Vice-Governor as Presiding Officer is a composite member thereof. As a
 composite member in the sangguniang panlalawigan, he is therefore included in the
determination of a quorum.
Majority has been defined by the Supreme Court in Santiago vs. Guingona, et al. (G.R. No.
134577, 18 November 1998) as that which is greater than half of the membership of the body
or that number which is 50% + 1 of the entire membership. We note, however, that using either
formula will give us the same result. To illustrate, using the 50% +1 formula, the 50% of
a sangguniancomposed of 14 members is 7. Hence 7 + 1 will give us a sum of 8. On the other
hand, if we use the second formula which is that number greater than half, then 8, in relation
to 7, is definitely greater than the latter. The simple majority of
the sangguniang panlalawigan with fourteen (14) members where all of them were present in
that particular session is therefore 8.
xxxx
Very truly yours,
(signed)
AUSTERE A. PANADERO
Undersecretary18
In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the total
composition of the Sangguniang Panlungsod. In this case, the SangguniangPanlungsod of La Carlota
City, Negros Occidental is composed of the presiding officer, ten (10) regular members, and two (2) ex-
officio members, or a total of thirteen (13) members. A majority of the 13 members of
the Sangguniang Panlungsod, or at least seven (7) members, is needed to constitute a quorum to
transact official business. Since seven (7) members (including the presiding officer) were present on the
17 March 2004 regular session of the Sangguniang Panlungsod, clearly there was a quorum such that
the irrevocable resignation of respondent was validly accepted.
The Perez19 case cited in the Dissenting Opinion was decided in 1969 prior to the 1987 Constitution,
and prior to the enactment of RA 7160 or the Local Government Code of 1991. In fact, the Perez case
was decided even prior to the old Local Government Code which was enacted in 1983. In ruling that
the vice-mayor is not a constituent member of the municipal board, the Court in the Perez case relied
mainly on the provisions of Republic Act No. 305 (RA 305) creating the City of Naga and the amendatory
provisions of Republic Act No. 225920 (RA 2259) making the vice-mayor the presiding officer of the
municipal board. Under RA 2259, the vice-mayor was the presiding officer of the City Council or
Municipal Board in chartered cities. However, RA 305 and 2259 were silent on whether as presiding
officer the vice-mayor could vote. Thus, the applicable laws in Perez are no longer the applicable
laws in the present case.
On the other hand, the 2004 case of Zamora v. Governor Caballero,21 in which the Court interpreted
Section 5322 of RA 7160 to mean that the entire membership must be taken into account in computing
the quorum of the Sangguniang Panlalawigan, was decided under the 1987 Constitution and after the
enactment of the Local Government Code of 1991. In stating that there were fourteen (14) members of
the Sangguniang Panlalawigan of Compostela Valley,23 the Court in Zamora clearly included the Vice-
Governor, as presiding officer, as part of the entire membership of
the Sangguniang Panlalawigan which must be taken into account in computing the quorum.
On the issue that respondents appointment was issued during the effectivity of the election ban, the
Court agrees with the finding of the Court of Appeals and the Civil Service Commission that since the
respondents appointment was validly issued on 18 March 2004, then the appointment did not violate
the election ban period which was from 26 March to 9 May 2004. Indeed, the Civil Service Commission
found that despite the lack of signature and certification of the Human Resource Management Officer
of La Carlota City on respondents appointment papers, respondents appointment is deemed effective
as of 18 March 2004 considering that there was substantial compliance with the appointment
requirements, thus:
Records show that Atty. Rojos appointment was transmitted to the CSC Negros Occidental
Field Office on March 19, 2004 by the office of Gelongo without his certification and signature
at the back of the appointment. Nonetheless, records show that the position to which
Atty. Rojo was appointed was published on January 6, 2004. The qualifications of
Atty. Rojo were deliberated upon by the Personnel Selection Board on March 5, 2004, attended
by Vice Mayor Jalandoon as Chairman and Jose Leofric F. De Paola, SP member and Sonia P.
Delgado, Records Officer, as members. Records likewise show that a certification was issued
by Vice Mayor Jalandoon, as appointing authority, that the appointment was issued in
accordance with the limitations provided for under Section 325 of RA 7160 and the said
appointment was reviewed and found in order pursuant to Section 5, Rule V of the Omnibus
Rules Implementing Executive Order No. 292. Further, certifications were issued by the City
Budget Officer, Acting City Accountant, City Treasurer and City Vice Mayor that appropriations
or funds are available for said position. Apparently, all the requirements prescribed in Section
1, Rule VIII in CSC Memorandum Circular No. 15, series of 1999, were complied with.24
Clearly, the appointment of respondent on 18 March 2004 was validly issued considering that: (1) he
was considered resigned as Sangguniang Panlungsod member effective 17 March 2004; (2) he was fully
qualified for the position of Sanggunian Secretary; and (3) there was substantial compliance with the
appointment requirements.
WHEREFORE, we DENY the petition. We AFFIRM the 14 September 2007 Decision and the 18
January 2008 Resolution of the Court of Appeals in CA-G.R. CEB-SP No. 01377.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72492 November 5, 1987
NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO TORRES and ARTURO
UMBAC, petitioners,
vs.
SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC COMMITTEE OF THE
SANGGUNIANG PANLUNGSOD OF DUMAGUETE and ANTONIO S. RAMAS
UYPITCHING, respondents.
CORTES, J.:
An attempt by the respondent Ad Hoc Committee of the respondent Sangguniang Panlungsod of
Dumaguete to punish non-members for legislative contempt was halted by this special civil action of
certiorari and Prohibition with Preliminary Injunction and/or Restraining Order questioning the very
existence of the power in that local legislative body or in any of its committees. On November 7, 1985,
this Court issued a Temporary Restraining Order:
. . . enjoining respondents, their agents, representatives, and police and other peace
officers acting in their behalf, to refrain from compelling the attendance and testimony
of Petitioners Paterio Torres and Arturo Umbac at any and all future investigations to
be conducted by aforesaid respondents, and from issuing any contempt order if one
has not been issued yet or from executing any such contempt order if one has already
been issued.
Assailed is the validity of a subpoena dated October 25, 1985 (Annex "A", Petition) sent by the
respondent Committee to the petitioners Paterio Torres and Arturo Umbac, Chairman of the Board of
Directors and the General Manager, respectively, of petitioner Negros Oriental II Electric Cooperative
NORECO II), requiring their attendance and testimony at the Committee's investigation on October 29,
1985. Similarly under fire is the Order issued by the same Committee on the latter date, (Annex "D",
Petition) directing said petitioners to show cause why they should not be punished for legislative
contempt due to their failure to appear at said investigation.
The investigation to be conducted by respondent Committee was "in connection with pending legislation
related to the operations of public utilities" (Id.) in the City of Dumaguete where petitioner NORECO II,
an electric cooperative, had its principal place of business. Specifically, the inquiry was to focus on the
alleged installation and use by the petitioner NORECO II of inefficient power lines in that city (Comment,
Rollo, p. 50). Respondent Antonio S. Ramas Uypitching, as Chairman of the Committee on Public
Utilities and Franchises and Co-Chairman of the respondent Ad Hoc Committee, signed both the
subpoena and the Order complained of. Petitioners moved to quash the subpoena on the following
grounds:
a. The power to investigate, and to order the improvement of, alleged inefficient power
lines to conform to standards is lodged exclusively with the National Electrification
Administration; and
b. Neither the Charter of the City of Dumaguete nor the Local Government Code grants
(the Sangguniang Panlungsod) any specific power to investigate alleged inefficient
power lines of NORECO II. (Annex "C", Petition)
The motion to quash was denied in the assailed Order of October 29, 1985 directing the petitioners
Torres and Umbac to show cause why they should not be punished for contempt. Hence this Petition
for certiorari and Prohibition with Preliminary Injunction and/or Restraining Order.
Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the power
to compel the attendance and testimony of witnesses, nor the power to order the arrest of witnesses
who fail to obey its subpoena. It is further argued that assuming the power to compel the attendance
and testimony of witnesses to be lodged in said body, it cannot be exercised in the investigation of
matters affecting the terms and conditions of the franchise granted to NORECO II which are beyond
the jurisdiction of the Sangguniang Panlungsod (Rollo pp. 7-8).
Respondents, for their part, claim that inherent in the legislative functions performed by the
respondent Sangguniang Panlungsod is the power to conduct investigations in aid of legislation and
with it, the power to punish for contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It
is also the position of the respondents that the contempt power, if not expressly granted, is necessarily
implied from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-49). Furthermore, the
respondents assert that an inquiry into the installation or use of inefficient power lines and its effect
on the power consumption cost on the part of Dumaguete residents is well-within the jurisdiction of
the Sangguniang Panlungsod and its committees.
1. A line should be drawn between the powers of Congress as the repository of the legislative
power under the Constitution, and those that may be exercised by the legislative bodies of local
government unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere creatures of law,
possess delegated legislative power.While the Constitution does not expressly vest Congress with the
power to punish non-members for legislative contempt, the power has nevertheless been invoked by
the legislative body as a means of preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29
[1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that courts wield an inherent power
to "enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness
of the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716, 723 [1967]; In re Kelly 35
Phil. 944 950 [1916], and other cases). The exercise by Congress of this awesome power was questioned
for the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950]) where this Court held
that the legislative body indeed possessed the contempt power.
That case arose from the legislative inquiry into the acquisition by the Philippine Government of the
Buenavista and Tambobong estates sometime in 1949. Among the witnesses called and examined by
the special committee created by a Senate resolution was Jean L. Arnault, a lawyer who delivered a
portion of the purchase price to a representative of the vendor. During the Senate, investigation, Amault
refused to reveal the Identity of said representative, at the same time invoking his constitutional right
against self-incrimination. The Senate adopted a resolution committing Arnault to the custody of the
Sergeant at Arms and imprisoned "until he shall have purged the contempt by revealing to the Senate
. . . the name of the person to whom he gave the P440,000, as wen as answer other pertinent questions
in connection therewith." (Arnault v. Nazareno, 87 Phil. 29, 43 [1950]). Arnault petitioned for a writ of
Habeas Corpus.
In upholding the power of Congress to punish Arnault for contumacy the Court began with a discussion
of the distribution of the three powers of government under the 1935 Constitution. Cognizant of the
fact that the Philippines system of government under the 1935 Constitution was patterned after the
American system, the Court proceeded to resolve the issue presented, partly by drawing from American
precedents, and partly by acknowledging the broader legislative power of the Philippine Congress as
compared to the U.S. Federal Congress which shares legislative power with the legislatures of the
different states of the American union (Id., pp. 44-45). The Court held:
xxx xxx xxx
... (T)he power of inquiry-with process to enforce it-is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation
is intended to affect or change; and where the legislative body does not itself possess
the requisite information — which is not infrequently true — recourse must be had to
others who possess it. Experience has shown that mere requests for such information
are often unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to obtain what is
needed. (McGrain vs. Daugherty 273 U.S., 135; 71 L. ed., 580; 50 ALR 1) The fact that
the Constitution expressly gives to Congress the power to punish its Members for
disorderly behaviour, does not by necessary implication exclude the power to punish
for contempt by any person. (Anderson vs. Dunn, 6 Wheaton 204; 5 L. ed., 242)
But no person can be punished for contumacy as a witness before either House, unless
his testimony is required in a matter into which that House has jurisdiction to inquire.
(Kilbourn vs. Thompson, 26, L.ed., 377.)
The Court proceeded to delve deeper into the essence of the contempt power of the Philippine Congress
in a subsequent decision (Arnault v. Balagtas, 97 Phil. 358 [1955]) arising from the same factual
antecedents:
The principle that Congress or any of its bodies has the power to punish recalcitrant
witnesses is founded upon reason and policy. Said power must be considered implied
or incidental to the exercise of legislative power. How could a legislative body obtain
the knowledge and information on which to base intended legislation if it cannot
require and compel the disclosure of such knowledge and information, if it is impotent
to punish a defiance of its power and authority? When the framers of the Constitution
adopted the principle of separation of powers, making each branch supreme within the
real of its respective authority, it must have intended each department's authority to
be full and complete, independently of the other's authority or power. And how could
the authority and power become complete if for every act of refusal every act of defiance,
every act of contumacy against it, the legislative body must resort to the judicial
department for the appropriate remedy, because it is impotent by itself to punish or
deal therewith, with the affronts committed against its authority or dignity. . . (Arnault
v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370 [1955]).
The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then an
unexplored area of jurisprudence, and succeeded in supplying the raison d' etre of this power of
Congress even in the absence of express constitutional grant. Whether or not the reasons for upholding
the existence of said power in Congress may be applied mutatis mutandis to a questioned exercise of
the power of contempt by the respondent committee of a city council is the threshold issue in the
present controversy.
3. The exercise by the legislature of the contempt power is a matter of self-preservation as that branch
of the government vested with the legislative power, independently of the judicial branch, asserts its
authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui
generis, and local legislative bodies cannot correctly claim to possess it for the same reasons that the
national legislature does. The power attaches not to the discharge of legislative functions per se but to
the character of the legislature as one of the three independent and coordinate branches of government.
The same thing cannot be said of local legislative bodies which are creations of law.
4. To begin with, there is no express provision either in the 1973 Constitution or in the Local
Government Code (Batas Pambansa Blg. 337) granting local legislative bodies, the power to subpoena
witnesses and the power to punish non-members for contempt. Absent a constitutional or legal
provision for the exercise of these powers, the only possible justification for the issuance of a subpoena
and for the punishment of non-members for contumacious behaviour would be for said power to be
deemed implied in the statutory grant of delegated legislative power. But, the contempt power and the
subpoena power partake of a judicial nature. They cannot be implied in the grant of legislative power.
Neither can they exist as mere incidents of the performance of legislative functions. To allow local
legislative bodies or administrative agencies to exercise these powers without express statutory basis
would run afoul of the doctrine of separation of powers.
Thus, the contempt power, as well as the subpoena power, which the framers of the fundamental law
did not expressly provide for but which the then Congress has asserted essentially for self-preservation
as one of three co-equal branches of the government cannot be deemed implied in the delegation of
certain legislative functions to local legislative bodies. These cannot be presumed to exist in favor of the
latter and must be considered as an exception to Sec. 4 of B.P. 337 which provides for liberal rules of
interpretation in favor of local autonomy. Since the existence of the contempt power in conjunction with
the subpoena power in any government body inevitably poses a potential derogation of individual rights,
i.e. compulsion of testimony and punishment for refusal to testify, the law cannot be liberally construed
to have impliedly granted such powers to local legislative bodies. It cannot be lightly presumed that the
sovereign people, the ultimate source of all government powers, have reposed these powers in all
government agencies. The intention of the sovereign people, through their representatives in the
legislature, to share these unique and awesome powers with the local legislative bodies must therefore
clearly appear in pertinent legislation.
There being no provision in the Local Government Code explicitly granting local legislative bodies, the
power to issue compulsory process and the power to punish for contempt, the Sanggunian Panlungsod
of Dumaguete is devoid of power to punish the petitioners Torres and Umbac for contempt. The Ad-Hoc
Committee of said legislative body has even less basis to claim that it can exercise these powers.
5. Even assuming that the respondent Sangguniang Panlungsod and the respondent Ad-Hoc Committee
had the power to issue the subpoena and the order complained of, such issuances would still be void
for being ultra vires.The contempt power (and the subpoena power) if actually possessed, may only be
exercised where the subject matter of the investigation is within the jurisdiction of the legislative body
(Arnault v. Nazareno, supra, citing Kilbourn v. Thompson). As admitted by the respondents in their
Comment, the investigation to be conducted by the Ad-Hoc Committee was to look into the use by
NORECO II of inefficient power lines "of pre-war vintage" which the latter had acquired from the Visayan
Electric Com. company, and "to hear the side of the petitioners" (Comment, Rollo, p. 50). It comes
evident that the inquiry would touch upon the efficiency of the electric service of NORECO II and,
necessarily, its compliance with the franchise. Such inquiry is beyond the jurisdiction of the respondent
Sangguniang Panlungsod and the respondent committee.
There is no doubt that a city government has the power to enact ordinances regulating the installation
and maintenance of electric power lines or wires within its territorial jurisdiction. The power subsists
notwithstanding the creation of the National Electrification Administration (NEA), to which body the
franchise powers of local government units were transferred by Presidential Decree No. 269. Section 42
of the Decree states:
SEC. 42. Repeal of Franchise Powers of Municipal City and Provincial Governments.
— The powers of municipal, city and provincial governments to grant franchises, as
provided for in Title 34 of the Philippines Statutes or in any special law, are hereby
repealed; Provided, That this section shall not impair or invalidate any franchise
heretofore lawfully granted by such a government or repeal any other subsisting power
of such governments to require that electric facilities and related properties be so located,
constructed and operated and maintained as to be safe to the public and not to unduly
interfere with the primary use of streets, roads, alleys and other public ways, buildings
and grounds over, upon or under which they may be built. (This Section was not among
those amended by Pres. Dec. Nos. 1370 [May 2, 1978] and 1645 [October 8, 1979]).
This particular power of the city government is included in the enumeration of powers and duties of a
Sangguniang Panlungsod in Section 177 of the Local Government Code (Batas Pambansa Blg. 337,
February 10, 1983), to wit:
SEC. 177. Powers and Duties. — The Sangguniang Panlungsod shall:
xxx xxx xxx
(j) . . . regulate the digging and excavation for the laying of gas, water, power, and other
pipelines, the building and repair of tunnels, sewers and drains, and all structures
thereunder; the placing, stringing, attaching, installing, repair and construction of all
gas mains, electric, telegraph and telephone wires,conduits meters and other
apparatus, and the correction, condemnation of the same when dangerous or defective;
xxx xxx xxx
The Sangguniang Panlungsod of Dumaguete may, therefore, enact ordinances to regulate the
installation and maintenance of electric power lines, e.g. prohibit the use of inefficient power lines, in
order to protect the city residents from the hazards these may pose. In aid of this ordinance making
power, said body or any of its committees may conduct investigations similar to, but not the same as,
the legislative investigations conducted by the national legislature. As already discussed, the difference
lies in the lack of subpoena power and of the power to punish for contempt on the part of the local
legislative bodies. They may only invite resource persons who are willing to supply information which
may be relevant to the proposed ordinance. The type of investigation which may be conducted by the
Sangguniang PanLungsod does not include within its ambit an inquiry into any suspected violation by
an electric cooperative of the conditions of its electric franchise.
The power to inquire into the efficiency of the service supplied by electric cooperatives is within the
franchising powers of the NEA under Sec. 43 of Pres. Dec. No. 269, i.e.:
(2) to repeal and cancel any franchise if the NEA finds that the holder thereof is not
then furnishing, and is unable to or unailling within reasonable time to furnish adequate
and dependable service on an area coverage within such area;
xxx xxx xxx
In the exercise of this power, the NEA may conduct hearings and investigations, issle subpoenas and
invoke the aid of the courts in case of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D. 269).
Clearly, then, the Sangguniang Panlungsod of Dumaguete cannot look into an suspected failure of
NORECO II to comply with the standards of electric service prescribed by law and in its franchise. The
proper recourse is to file a complaint with the NEA against NORECO II if there be sufficient basis
therefor.
WHEREFORE, the subpoena dated October 25, 1985 requiring the attendance and testimony of the
petitioners at an investigation by the respondent Ad-Hoc Committee, and the Order issued by the latter
on October 29, 1985 directing herein petitioners to show cause why they should not be punished for
legislative contempt for their disobedience of said subpoena, is declared null and void for being ultra
vires. The respondent Sangguniang Panlungsod and the respondent Ad-Hoc Committee are without
power to punish non- members for contempt. The Temporary Restraining Order issued by this Court
on November 7, 1985 enjoining said respondents, their agents and representatives, and the police and
other peace officers from enforcing the aforesaid Order of the respondent committee is made permanent.
Petition is GRANTED. No costs.
SO ORDERED
SECOND DIVISION
THE CITY OF DAVAO, CITY G.R. No. 127383
TREASURER AND THE
CITY ASSESSOR OF DAVAO Present:
CITY,
Petitioners, PUNO, J.,
Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
- versus - TINGA, and
CHICO-NAZARIO, JJ.
THE REGIONAL TRIAL Promulgated:
COURT, BRANCH XII, DAVAO On 28 July 1994, the GSIS received Warrants of Levy and Notices of Levy on three parcels of
CITY AND THE GOVERNMENT August 18, 2005
SERVICE INSURANCE SYSTEM land owned by the GSIS. Another Notice of Public Auction was received by the GSIS on 29 August 1994,
(GSIS),
Respondents. setting the date of auction sale for 20 September 1994.
x-------------------------------------------------------------------x

DECISION On 13 September 1994, the GSIS filed a Petition for Certiorari, Prohibition, Mandamus And/Or

TINGA, J.: Declaratory Relief with the RTC of Davao City. It also sought the issuance of a temporary restraining

order. The case was raffled to Branch 12, presided by Judge Maximo Magno Libre. On 13 September

A Davao City Regional Trial Court (RTC) upheld the tax-exempt status of the Government Service 1994, the RTC issued a temporary restraining order for a period of twenty (20) days,[7] effectively

Insurance System (GSIS) for the years 1992 to 1994 in contravention of the mandate under the Local enjoining the auction sale scheduled seven days later. Following exchange of arguments, the RTC issued

Government Code of 1992,[1] the precedent set by this Court in Mactan-Cebu International Airport an Order dated 3 April 1995 issuing a writ of preliminary injunction effective for the duration of the

Authority v. Hon. Marcos,[2] and the public policy on local autonomy enshrined in the Constitution.[3] suit.[8]

The matter was elevated to this Court directly from the trial court on a pure question of law.[4] The facts At the pre-trial, it was agreed that the sole issue for resolution was purely a question of law, that is,

are uncontroverted. whether Sections 234 and 534 of the Local Government Code, which have withdrawn real property tax

exemptions of government owned and controlled corporations (GOCCs), have also withdrawn from the

On 8 April 1994, the GSIS Davao City branch office received a Notice of Public Auction GSIS its right to be exempted from payment of the realty taxes sought to be levied by Davao City. [9] The

scheduling the public bidding of GSIS properties located in Matina and Ulas, Davao City for non- parties submitted their respective memoranda.

payment of realty taxes for the years 1992 to 1994 totaling Two Hundred Ninety Five Thousand Seven

Hundred Twenty One Pesos and Sixty One Centavos (P295,721.61).[5] The auction was subsequently On 28 May 1996, the RTC rendered the Decision[10] now assailed before this Court. It concluded that

reset by virtue of a deadline extension allowed by Davao City for the payment of delinquent real property notwithstanding the enactment of the Local Government Code, the GSIS retained its exemption from

taxes.[6] all taxes, including real estate taxes. The RTC cited Section 33 of Presidential Decree (P.D.) No. 1146,

the Revised Government Service Insurance Act of 1977, as amended by P. D. No. 1981, which mandated

such exemption.
 Petitioners Motion for Reconsideration was denied by the RTC in an Order dated 30 October 1996, hence
The RTC conceded that the tax exempting statute, P.D. No. 1146, was enacted prior to the Local
the present petition.
Government Code. However, it noted that the earlier law had prescribed two conditions in order that

the tax exemption provided therein could be withdrawn by future enactments, namely: (1) that Section
Petitioners argue that the exemption granted in Section 33 of P.D. No. 1146, as amended, was
33 be expressly and categorically repealed by law; and (2) that a provision be enacted to substitute the
effectively withdrawn upon the enactment of the Local Government Code, particularly Sections 193 and
declared policy of exemption from any and all taxes as an essential factor for the solvency of the GSIS
294 thereof. These provisions made the GSIS, along with all other GOCCs, subject to realty taxes.
fund.[11] The RTC concluded that
Petitioners point out that under Section 534(f) of the Local Government Code, even special laws, such

as PD No. 1146, which are inconsistent with the Local Government Code, are repealed or modified

accordingly.
both conditions had not been satisfied by the Local Government Code. The RTC likewise accorded

weight to Legal Opinion No. 165 of the Secretary of Justice dated 16 December 1996 concluding that
On the other hand, GSIS contends, as the RTC held, that the requisites for repeal are laid down in
Section 33 was not repealed by the Local Government Code, and a memorandum emanating from the
Section 33 of P.D. No. 1146, as amended, namely that it be done expressly and categorically by law,
Office of the President dated 14 February 1995 expressing the same opinion.[12]
and that a provision be enacted to substitute the declared policy of exemption from taxes as an essential

The dispositive portion of the assailed Decision reads: factor for the solvency of the

Now then, in light of the foregoing observation, the court perceives, that the cause of action
asseverated by petitioner in its petition has been well established by law and jurisprudence,
and therefore the following relief should be granted:

a) The tax exemption privilege of petitioner should be upheld and continued and GSIS fund. It stresses that it had been exempt from taxation as far back as 1936, when its original
that the warrants of levy and notices of levy issued by the respondent Treasurer
is hereby voided and declared of no effect; charter was enacted through Commonwealth Act No. 186.[14] It asserts further that this Court had
b) Let a writ of prohibition be issued restraining the City Treasurer from proceeding
with the auction sale of the subject properties, as well as the respondents Register previously recognized the extraordinary exemption of GSIS in Testate Estate of Concordia T. Lim v. City
of Deeds from annotating the warrants/notices of levy on the certificate of titles
of petitioners real properties subject of this suit; and of Manila,[15] and such exemption has similarly been affirmed by the Secretary of Justice and the Office
c) Compelling the City Assessor of Davao City to include the properties of
petitioner in the list of properties exempt from payment of realty tax and if the of the President in the aforementioned issuances also cited by the RTC.[16]
warrants and levies issued by the City Treasurer had been annotated in the
memorandum of encumbrance on the certificates of title of petitioners properties,
to cancel such annotation so that the certificates of titles of petitioners will be
free from such liens and encumbrances. GSIS likewise notes that had it been the intention of the legislature to repeal Section 33 of P.D. No.

SO ORDERED.[13] 1146 through the Local Government Code, said law would have included the appropriate retraction in

its repealing clause found in Section 534(f). However, said section, according to the GSIS, partakes the

nature of a general repealing provision which is accorded less weight in light of the rule that implied
repeals are not favored. Consequently with its position that it remains exempt from realty taxation, the
GSIS argues that the Notices of Assessment, Warrants and Notices of Levy, Notices of Public Auction
Sale and the Annotations of the Notice of Levy are void ab initio.
A review of the relevant statutory provisions is in order.
Presidential Decree No. 1146 was enacted in 1977 by President Marcos in the exercise of his
legislative powers. Section 33, as originally enacted, read:
Sec. 33. Exemption from tax, Legal Process and Lien.- It is hereby declared to
be the policy of the State that the actuarial solvency of the funds of the System shall
be preserved and maintained at all times and that the contribution rates necessary to
sustain the benefits under this Act shall be kept as low as possible in order not to
burden the members of the system and/or their employees. . . . Accordingly,
notwithstanding any laws to the contrary, the System, its assets, revenues including
the accruals thereto, and benefits paid, shall be exempt from all taxes. These
exemptions shall continue unless expressly and specifically revoked and any
assessment against the System as of the approval of this Act are hereby considered
paid.
As it stood then, Section 33 merely provided a general rule exempting the GSIS from all taxes. However,
Section 33 of P.D. No. 1146 was amended in 1985 by President Marcos, again in the exercise of his
legislative powers, through P.D. No. 1981. It was through this latter decree that a second paragraph
was added to Section 33 delineating the requisites for repeal of the tax exemption enjoyed by the GSIS
by incorporating the following:
Moreover, these exemptions shall not be affected by subsequent laws to the
contrary, such as the provisions of Presidential Decree No. 1931 and other similar
laws that have been or will be enacted, unless this section is expressly and
categorically repealed by law and a provision is enacted to substitute the declared
policy of exemption from any and all taxes as an essential factor for the solvency of
the fund.[17]
It bears noting though, and it is perhaps key to understanding the necessity of the addendum provided
under P.D. No. 1981, that a presidential decree enacted a year earlier, P.D. No. 1931, effectively
withdrew all tax exemption privileges granted to GOCCs.[18] In fact, P.D. No. 1931 was specifically
named in the afore-quoted addendum as among those laws which, despite passage, would not affect
the tax exempt status of GSIS. Section 1 of P.D. No. 1931 states:
Sec. 1. The provisions of special or general law to the contrary
notwithstanding, all exemptions from the payment of duties, taxes, fees, imposts
and other charges heretofore granted in favor of government-owned or controlled
corporations including their subsidiaries, are hereby withdrawn.
There is no doubt that the GSIS which was established way back in 1937 is a GOCC, a fact that
GSIS itself admits in its petition for certiorari before the RTC.[19] It thus clear that Section 1 of P.D. No.
1931 expressly withdrew those exemptions granted to the GSIS. Presidential Decree No. 1931 did allow
the exemption to be restored in special cases through an application for restoration with the Secretary
of Finance, but otherwise, the exemptions granted to the GSIS prior to the enactment of P.D. No. 1931
were withdrawn.
Notably, P.D. No. 1931 was also an exercise of legislative powers then accorded to President
Marcos by virtue of Amendment No. 6 to the 1973 Constitution. Whether he was aware of the effect of
P.D. No. 1931 on the GSISs tax-exempt status or the ramifications of the decree thereon is unknown;
but apparently, he immediately reconsidered the withdrawal of the exemptions on the GSIS. Thus, P.D.

No. 1981 was enacted, expressly stating that the tax-exempt status of the GSIS under Section 33 of
P.D. No. 1146 remained in place, notwithstanding the passage of P.D. No. 1931.
However, P.D. No. 1981 did not stop there, serving merely as it should to restore the previous
exemptions on the GSIS. It also attempted to proscribe future attempts to alter the tax-exempt status
of the GSIS by imposing unorthodox conditions for its future repeal. Thus, as intimated earlier, a second
paragraph was added to Section 33, containing the restrictions relied upon by the RTC and presently
invoked by the GSIS before this Court.
These laws have to be weighed against the Local Government Code of 1992, a landmark law
which implemented the constitutional aspirations for a more extensive breadth of local autonomy. The
Court, in Mactan, was asked to consider the effect of the Local Government Code on the taxability by
local governments of GOCCs such as the Mactan Cebu International Airport Authority (MCIAA).
Particularly, MCIAA invoked Section 133(o) of the Local Government Code as the basis for its claimed
exemption, the provision reading:
SECTION 133. Common Limitations on the Taxing Powers of Local Government Units. Unless
otherwise provided herein, the exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:
....
(o) Taxes, fees or charges of any kind on the National Government, its
agencies and instrumentalities and local government units.
However, the Court, in ruling MCIAA non-exempt from realty taxes, considered that Section
133 qualified the exemption of the National Government, its agencies and instrumentalities from local
taxation with the phrase unless otherwise provided herein. The Court then considered the other
relevant provisions of the Local Government Code, particularly the following:
SECTION 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this
Code, tax exemption or incentives granted to, or enjoyed by all persons, whether
natural or juridical, including government-owned and controlled corporations, except
local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-
profit hospitals and educational institutions, are hereby withdrawn upon the effectivity
of this Code.
SECTION 232. Power to Levy Real Property Tax. A province or city or a municipality within
the Metropolitan Manila area may levy an annual ad valorem tax on real property such as
land, building, machinery, and other improvements not hereafter specifically exempted.
SECTION 234. Exemptions from Real Property Tax. -- The following are exempted from
payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person;
(b) Charitable institutions, churches, parsonages or convents appurtenant thereto,
mosques, non-profit or religious cemeteries and all lands, buildings, and
improvements actually, directly, and exclusively used for religious charitable or
educational purposes;
(c) All machineries and equipment that are actually, directly and exclusively used
by local water districts and government-owned and controlled corporations
engaged in the distribution of water and/or generation and transmission of electric
power;
(d) All real property owned by duly registered cooperatives as provided for under
R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and environmental
protection.
Except as provided herein, any exemption from payment of real property tax
previously granted to, or presently enjoyed by, all persons, whether natural or
juridical, including all government-owned or controlled corporations are hereby
withdrawn upon the effectivity of this Code. (Emphasis supplied.)
Evidently, Section 133 was not intended to be so absolute a prohibition on the power of LGUs
to tax the National Government, its agencies and instrumentalities, as evidenced by these cited
provisions which otherwise provided. But what was the extent of the limitation under Section 133? This
is how the Court, in a discussion of far-reaching consequence, defined the parameters in Mactan:
The foregoing sections of the LGC speak of: (a) the limitations on the taxing
powers of local government units and the exceptions to such limitations; and (b)
the rule on tax exemptions and the exceptions thereto. The use of exceptions or
provisos in these sections, as shown by the following clauses:

(1) "unless otherwise provided herein" in the opening paragraph of Section
133;
(2) "Unless otherwise provided in this Code" in Section 193;
(3) "not hereafter specifically exempted" in Section 232; and
(4) "Except as provided herein" in the last paragraph of Section 234
initially hampers a ready understanding of the sections. Note, too, that the
aforementioned clause in Section 133 seems to be inaccurately worded. Instead of
the clause "unless otherwise provided herein," with the "herein" to mean, of course,
the section, it should have used the clause "unless otherwise provided in this
Code." The former results in absurdity since the section itself enumerates what are
beyond the taxing powers of local government units and, where exceptions were
intended, the exceptions are explicitly indicated in the next. For instance, in item
(a) which excepts income taxes "when levied on banks and other financial
institutions"; item (d) which excepts "wharfage on wharves constructed and
maintained by the local government unit concerned"; and item (1) which excepts
taxes, fees and charges for the registration and issuance of licenses or permits for
the driving of "tricycles." It may also be observed that within the body itself of the
section, there are exceptions which can be found only in other parts of the LGC,
but the section interchangeably uses therein the clause, "except as otherwise
provided herein" as in items (c) and (i), or the clause "except as provided in this
Code" in item (j). These clauses would be obviously unnecessary or mere
surplusages if the opening clause of the section were "Unless otherwise provided in
this Code" instead of "Unless otherwise provided herein." In
any event, even if the latter is used, since under Section 232 local government units
have the power to levy real property tax, except those exempted therefrom under
Section 234, then Section 232 must be deemed to qualify Section 133.
Thus, reading together Sections 133, 232, and 234 of the LGC, we
conclude that as a general rule, as laid down in Section 133, the taxing powers
of local government units cannot extend to the levy of, inter alia, "taxes, fees
and charges of any kind on the National Government, its agencies and
instrumentalities, and local government units"; however, pursuant to Section
232, provinces, cities, and municipalities in the Metropolitan Manila Area
may impose the real property tax except on, inter alia, "real property owned
by the Republic of the Philippines or any of its political subdivisions except
when the beneficial use thereof has been granted, for consideration or
otherwise, to a taxable person," as provided in item (a) of the first paragraph
of Section 234.
As to tax exemptions or incentives granted to or presently enjoyed by
natural or judicial persons, including government-owned and controlled
corporations, Section 193 of the LGC prescribes the general rule, viz., they are
withdrawn upon the effectivity of the LGC, except those granted to local water
districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-
profit hospitals and educational institutions, and unless otherwise provided in the
LGC. The latter proviso could refer to Section 234 which enumerates the properties
exempt from real property tax. But the last paragraph of Section 234 further
qualifies the retention of the exemption insofar as real property taxes are concerned
by limiting the retention only to those enumerated therein; all others not included
in the enumeration lost the privilege upon the effectivity of the LGC. Moreover, even
as to real property owned by the Republic of the Philippines or any of its political
subdivisions covered by item (a) of the first paragraph of Section 234, the
exemption is withdrawn if the beneficial use of such property has been granted to
a taxable person for consideration or otherwise.
Since the last paragraph of Section 234 unequivocally withdrew, upon the
effectivity of the LGC, exemptions from payment of real property taxes granted to
natural or juridical persons, including government-owned or controlled
corporations, except as provided in the said section, and the petitioner is,
undoubtedly, a government-owned corporation, it necessarily follows that its
exemption from such tax granted it in Section 14 of its Charter, R.A. No. 6958, has
been withdrawn. Any claim to the contrary can only be justified if the petitioner
can seek refuge under any of the exceptions provided in Section 234, but not under
Section 133, as it now asserts, since, as shown above, the said section is qualified
by Sections 232 and 234.[20](Emphasis supplied.)
This Court, in Mactan, acknowledged that under Section 133, instrumentalities were generally
exempt from all forms of local government taxation, unless otherwise provided in the Code. On the
other hand, Section 232 otherwise provides insofar as it allowed local government units to levy an ad
valorem real property tax, irrespective of who owned the property. At the same time, the imposition of
real property taxes under Section 232 is in turn qualified by the phrase not hereinafter specifically
exempted. The exemptions from real property taxes are enumerated in Section 234, which specifically
states that only real properties owned by the Republic of the Philippines or any of its political
subdivisions are exempted from the payment of the tax. Clearly, instrumentalities or GOCCs do not fall
within the exceptions under Section 234.
Worth reckoning, however, is an essential difference between the situation of the MCIAA (and most other
GOCCs, for that matter) and that of the GSIS. Unlike most other GOCCs, there is a statutory provision
Section 33 of P.D. No. 1146, as amendedwhich imposes conditions on the subsequent withdrawal of the
GSISs tax exemptions. The RTC justified the affirmance of the tax exemptions based on the non-
compliance by the Local Government Code with these conditionalities, and not by reason of a general
proposition that GOCCs or instrumentalities remain exempt from local government taxation.
 It is a basic precept that among the implied substantive limitations on the legislative powers is the

prohibition against the passage of irrepealable laws.[23] Irrepealable laws deprive succeeding legislatures

of the fundamental best senses carte blanche in crafting laws appropriate to the operative milieu. Their

Absent Section 33 of P.D. No. 1146, as amended, there would be no impediment in squarely applying allowance promotes an unhealthy stasis in the legislative front and dissuades dynamic democratic

the express provisions of Sections 193, 232 and 234 of the Local Government Code, as the Court did impetus that may be responsive to the times. As Senior Associate Justice Reynato S. Puno once

in Mactan and recently in Philippine Rural Electric Cooperatives Association, Inc. et al. v. Secretary of observed, [t]o be sure, there are no irrepealable laws just as there are no irrepealable Constitutions.

Interior And Local Government, et al. [21] and in ruling that the tax exemptions of GSIS were withdrawn Change is the predicate of progress and we should not fear change.[24]

by the Code. Thus, the crucial proposition is whether the GSIS tax exemptions can be deemed as

withdrawn by the Local Government Code notwithstanding Section 33 of P.D. No. 1146 as amended. Moreover, it would be noxious anathema to democratic principles for a legislative body to have

the ability to bind the actions of future legislative body, considering that both assemblies are regarded

Concededly, it does not appear that at the very least, the second conditionality of Section 33 has been with equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of

met. No provision has been enacted to substitute the declared policy of exemption from any and all the attributes desired in a legislative body, and a legislature which attempts to forestall future

taxes as an essential factor for the solvency of the fund.[22] Yet the Court is averse to employing this amendments or repeals of its enactments labors under delusions of omniscience.

framework, in the first place as utilized by the RTC, for we recognize a fundamental flaw in Section 33,

particularly the amendatory second paragraph introduced by P.D. No. 1981. It might be argued that Section 33 of P.D. No. 1146, as amended, does not preclude the repeal of the

tax-exempt status of GSIS, but merely imposes conditions for such to validly occur. Yet these conditions,

if honored, have the precise effect of limiting the powers of Congress. Thus, the same rationale for

prohibiting irrepealable laws applies in prohibiting restraints on future amendatory laws. President

The second paragraph of Section 33 of P.D. No. 1146, as amended, effectively imposes restrictions on Marcos, who exercised his legislative powers in amending P.D. No. 1146, could not have demanded

the competency of the Congress to enact future legislation on the taxability of the GSIS. This places an obeisance from future legislators by imposing restrictions on their ability to legislate amendments or

undue restraint on the plenary power of the legislature to amend or repeal laws, especially considering repeals. The concerns that may have militated his enactment of these restrictions need not necessarily

that it is a lawmakers act that imposes such burden. Only the Constitution may operate to preclude or be shared by subsequent Congresses.

place restrictions on the amendment or repeal of laws. Constitutional dicta is of higher order than

legislative statutes, and the latter should always yield to the former in cases of irreconcilable conflict.
We do not mean to trivialize the need to ensure the solvency of the GSIS fund, a concern that has seen The citation is particularly apropos to our present task, since the question for resolution is primarily

legislative expression, even with the most recently enacted Government Service Insurance System Act one of statutory construction, i.e., whether or not Section 33 of P.D. No. 1146 has been repealed by the

of 1997.[25] Yet at the same time, we recognize that Congress has the putative authority, through valid Local Government Code. It is evident that we cannot render effective the amendatory second paragraph

legislation, to diminish such fund, or even abolish the GSIS itself if it so desires. The GSIS may provide of Section 33

vital services and security to employees of the civil service, yet it is not a sacred cow that is beyond

abolition by Congress if, for example, more innovative methods are devised to ensure stable pension

funds for government employees. If Congress has the inherent power to abrogate the GSIS itself, then as the RTC did, for by doing so, we would be giving sanction to a disingenuous means employed through

it necessarily has the ability to inflict less detrimental burdens, such as abolishing its tax-exempt status. legislative power to bind subsequent legislators to a particular mode of repeal.

If there could be legal authority proscribing the Congress from enacting such legislation, such should Thus, the two conditionalities of Section 33 cannot bear relevance on whether the Local

be sourced from the Constitution itself, and not from antecedent statutes which were themselves Government Code removed the tax-exempt status of the GSIS. The express withdrawal of all tax

enacted by legislative power. exemptions accorded to all persons, natural or juridical, as stated in Section 193 of the Local

Government Code, applies without impediment to the present case. Such position is bolstered by the

other cited provisions of the Local Government Code, and by the Mactan ruling.

The Courts position is aligned with entrenched norms of statutory construction. In Duarte v. There are other reasons that guide us to construe the Local Government Code in favor of the City

Dade,[26] the Court cited with approval Lewis Southerland on Statutory Construction, which states: of Davaos position. Section 5 of the Local Government Code provides the guidelines on how to construe

the Codes provisions in cases of doubt, and they are self-explanatory, thus:
A state legislature has a plenary law-making power over all subjects, whether
pertaining to persons or things, within its territorial jurisdiction, either to introduce new
laws or repeal the old, unless prohibited expressly or by implication by the federal Section 5. Rules of Interpretation. In the interpretation of the provisions of this Code,
constitution or limited or restrained by its own. It cannot bind itself or its successors by the following rules shall apply:
enacting irrepealable laws except when so restrained. Every legislative body may modify
or abolish the acts passed by itself or its predecessors. This power of repeal may be
exercised at the same session at which the original act was passed; and even while a bill
is in its progress and before it becomes a law. This legislature cannot bind a future
legislature to a particular mode of repeal. It cannot declare in advance the intent
of subsequent legislatures or the effect of subsequent legislation upon existing
statutes. (Emphasis supplied.)[27]

(a) Any provision on a power of a local government unit shall be liberally

interpreted in its favor, and in case of doubt, any question thereon shall be resolved
in favor of devolution of powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be interpreted in favor of the
local government unit concerned;
 (b) In case of doubt, any tax ordinance or revenue measure shall be construed strictly
against the local government unit enacting it, and liberally in favor of the taxpayer. Any
tax exemption, incentive or relief granted by any local government unit pursuant to The GSISs tax-exempt status, in sum, was withdrawn in 1992 by the Local Government Code
the provisions of this Code shall be construed strictly against the person claiming it;
(Emphasis supplied.) but restored by the Government Service Insurance System

Act of 1997, the operative provision of which is Section

Also worthy of note is that the Constitution itself promotes the principles of local autonomy as

embodied in the Local Government Code. The State is mandated to ensure the autonomy of local

governments,[28] and local governments are empowered to levy taxes, fees and charges that accrue
39.[32] The subject real property taxes for the years 1992 to 1994 were assessed against GSIS while the
exclusively to them, subject to congressional guidelines and limitations.[29] The principle of local
Local Government Code provisions prevailed and, thus, may be collected by the City of Davao.
autonomy is no mere passing dalliance but a constitutionally enshrined precept that deserves respect

and appropriate enforcement by this Court.

WHEREFORE, premises considered, the Petition for Review is hereby GRANTED. The

appealed Decision of the Regional Trial Court ofDavao City, Branch 12 is REVERSED and SET ASIDE.

Costs de oficio.

SO ORDERED.
We are aware that this stance runs contrary to that which was adopted by the Secretary of

Justice in his Opinion dated 22 July 1993, as well as the memorandum from the Office of the President

dated 14 February 1995, expressing the same opinion. However, statutory interpretations of these
[G.R. No. 137718. January 28, 2000]
executive bodies do not hold decisive sway upon the judiciary but are merely persuasive. These

issuances cannot derogate from the binding precept that one legislature cannot enact irrepealable
legislation or limit or restrict its own power or the power of its successors as to the repeal of
statutes.[30] The act of one legislature is not binding upon and does not tie the hands of future
legislatures.[31]
REYNALDO O. MALONZO, in his capacity as City Mayor of Caloocan City, OSCAR MALAPITAN, in
his capacity as Vice-Mayor of Caloocan City, CHITO ABEL, BENJAMIN MANLAPIG, EDGAR ERICE,
DENNIS PADILLA, ZALDY DOLATRE, LUIS TITO VARELA, SUSANA PUNZALAN, HENRY CAMAYO,
in their capacities as Members of the Sangguniang Panlungsod of Caloocan City, petitioners,
vs. HON. RONALDO B. ZAMORA, in his capacity as Executive Secretary, HON. RONALDO V. PUNO,
in his capacity as Undersecretary of the Department of Interior and Local Government, and
EDUARDO TIBOR, respondents. Sdaadsc
RESOLUTION
DE LEON, JR., J.:
On March 15, 1999, the Office of the President (OP) through Executive Secretary Ronaldo Zamora,
rendered a Decision[1] the dispositive portion of which reads, viz.:
"WHEREFORE, herein respondents Mayor Reynaldo Malonzo, Vice-Mayor Oscar G.
Malapitan and Councilors Chito Abel, Benjamin Manlapig, Edgar Erice, Dennis Padilla,
Zaldy Dolatre, Susana Punzalan, Henry Cammayo, and Luis Tito Varela, all of Caloocan
city are hereby adjudged guilty of misconduct and each is meted the penalty of
SUSPENSION from office for a period of three (3) months without pay to commence
upon receipt of this Decision. This Decision is immediately executory.
SO ORDERED." Rtcspped
On March 22, 1999, petitioners Mayor Reynaldo Malonzo, Vice-Mayor Oscar G. Malapitan and
councilors Chito Abel, Benjamin Manlapig, Edgar Erice Dennis Padilla, Zaldy Dolatre, Luis tito Varela,
Susana Punzalan, and Henry Cammayo, all of the City of Caloocan, filed a petition assailing the OP
decision.
On July 27, 1999, We granted the petition and accordingly annulled and set aside the OP decision for
having been rendered with grave abuse of discretion and/or excess of jurisdiction. We held:
"x x x [T]he instant petition has been properly brought before us in the light of the
importance of the subject matter and the transcendental nature of the issues raised.
Realignment of [items in the annual budget] is a common practice borne of necessity
and sanctioned by law. Just how such a common practice may be carried out within
the bounds of law, considering the fact that public funds are at stake, is, we believe,
an issue that is not only one of first impression, but likewise of considerable
significance as a guide to local governance . x x x
"x x x The OP found petitioners guilty of misconduct on the ground that x x x
"x x x the P39,352,047.75 appropriated in Ordinance 0254 to fund the
expropriation of Lot 26 of the Maysilo Estate was merely a portion of
the P50 million included and appropriated in the 1998 Annual Budget
for expropriation purpose and x x x the judicial action for
expropriation x x x is still pending with the court. This being so, the
amount allocated for the expropriation cannot be reverted to or be
deemed as savings to serve as funds actually available for the
supplemental budget. x x x
"We cannot, however, agree x x x. Xlaw
"The OPs premise, in our opinion, rests upon an erroneous
appreciation of facts on record. The OP seems to have been confused
as to the figures and amounts actually involved. A meticulous analysis
of the records would show that there really is no basis to support the
OPs contention that the amount of P39,352,047.75 was appropriated
under Ordinance No. 0254, S. 1998, since in truth and in fact, what
was appropriated in said ordinance was the amount of
P39,343,028.00. The allocation of P39,352,047.75 is to be found in
the earlier Ordinance no. 0246,S.1997 which is a separate and distinct
ordinance. x x x
"x x x
"Section 322 of the Code upon which the OP anchored its opinion that
petitioners breached a statutory mandate provides: Xsc
"SEC. 322. Reversion of Unexpended Balances of Appropriations, Continuing
Appropriations Unexpended balances of appropriations authorized in the annual
appropriations ordinance shall revert to the unappropriated surplus of the general
funds at the end of the fiscal year and shall not thereafter be available for expenditure
except by subsequent enactment. However, appropriations for capital outlays shall
continue and remain valid until fully spent, reverted or the project is completed.
Reversions of continuing appropriations shall not be allowed unless obligations
therefor have been fully paid or settled."
"Based on the above provision, the OP reached the determination that Ordinance No.
0254, S. 1998 could not have lawfully realigned the amount of P39,352,047.75 which
was previously appropriated for the expropriation of Lot 26 of the Maysilo Estate since
such appropriation was in the nature of a capital outlay until fully spent, reverted, or
the project for which it is earmarked is completed.
"The question, however, is not whether the appropriation of P39,352,047.75 could fall
under the definitions of continuing appropriation and capital outlays, considering that
such amount was not the subject of realignment made by Ordinance No. 0254, Series
of 1998. Rather, the issue is whether petitioners are liable for their actions in regard
to said ordinance which actually realigned a position of the P50 million which was
simply denominated in a general manner as "Expropriation of Properties" and classified
under "Current Operating Expenditures" in the 1998 Annual Budget of Caloocan City.
Clearly, these are two distinct amounts separate from each other. x x x [T]he P50 million
was NOT appropriated for the purpose of purchasing Lot 26 of the Maysilo Estate but
rather for expenses incidental to expropriation such as relocation of squatters, appraisal
fee, expenses for publication, mobilization fees and expenses for preliminary studies. x
x x The appropriation of P39,352,047.75 under Ordinance No. 0246, S. 1997 is, we
believe, still a subsisting appropriation that has never been lumped together with other
funds to arrive at the sum of P50 million allocated in the 1998 budget. To be sure,
denomination of the P50 million amount as "Expropriation of Properties left much to
be desired and would have been confused with the appropriation for expropriation
under Ordinance No. 0246, S. 1997, but had respondents probed deeper into the
actual intention for which said amount was allocated then they would have reached
an accurate characterization of the P50 million. Misspped
 Bearing in mind, therefore, the fact that it is the P50 million which is now being
realigned, the next logical question to ask is whether such amount is capable of being
lawfully realigned. To this we answer in the affirmative.
"x x x [R]espondents x x x argued x x x that realignment shall not be allowed when
what is involved are continuing appropriations or capital outlays. But this argument
becomes clearly inapplicable in view of our disquisition above x x x. The realignment x
x x pertained to the P50 million which was classified as "Current Operating
Expenditures" x x x
"x x x [W]hat is being realigned is the P50 million appropriation which is classified,
neither as a capital outlay nor a continuing appropriation x x x
As to the alleged violation of Sections 50 and 52 of the Code requiring the adoption of
house rules and the organization of the council, we believe that the same hardly merits
even cursory consideration. We cannot infer x x x that no other business [like the
enactment of the ordinance] may be transacted on the first regular session except to
the take up the matter of adopting or updating rules. Sc
"The foregoing explanation leads us to the ineluctable conclusion that, indeed,
respondents committed grave abuse of discretion. Not only [is] their reasoning flawed
bit [it is] likewise lacking in factual and legal support. Misconduct, being a grave
administrative offense for which petitioners stood charged, cannot be treated cavalierly.
There must be clear and convincing proof on record that petitioners were motivated by
wrongful intent, committed unlawful behavior in relation to their offices, or
transgressed some established and definite rules of action. But, as we have stressed
above, petitioners were acting within legal bounds."
The dispositive portion of Our Decision of March 22, 1999, reads, thus:
"WHEREFORE, the instant petition is hereby GRANTED. The assailed decision of the
office of the president in O.P. Case No. 98-H-8520 dated March 15, 1999 is ANNULLED
and SET ASIDE for having been rendered with grave abuse of discretion amounting to
lack and/or excess of jurisdiction. Consequently, respondents, their subordinates,
agents, representatives, and successors-in-interest are permanently enjoined from
enforcing or causing the execution in any manner of the aforesaid decision against
petitioners."
On August 12, 1999, the Office of the Solicitor General filed a Motion for Reconsideration[2] contending
that:
I. The OP did not err in its appreciation of facts; Scmis
II. Ordinance No. 0254, Series of 1998 was passed without funds actually available;
III. Ordinance No. 0254, Series of 1998 was also enacted without sufficient compliance
with Section 50, Chapter 3, Title II of the Local Government Code of 1991;
IV. Petitioners failure to observe the stricture in the enactment of the Supplemental
Budget Ordinance constitutes misconduct; and
V. Assuming arguendo that the OP did err in its appreciation of the facts on record,
still this does not constitute grave abuse of discretion which can be reviewed by this
Court through a special civil action for certiorari.
On October 20, 1999, petitioners filed their Comment and/or Opposition to Motion for
Reconsideration.[3]
These issues have already been discussed in Our Decision of July 27, 1999. As respondents persist in
their stance, we must also thus restate our position to dispel any and all doubts on the matter. Missc
First. Respondents aver that in their Consolidated Answer which petitioners filed before the OP [4],
petitioners admitted that the sum of P39,352,047.75 under Ordinance No. 0246, Series of 1997 was
included in the P50,000,000.00 denominated in a general manner as "Expropriation of Properties" and
classified under "Current Operating Expenditures" in the 1998 Budget of Caloocan City. Petitioners
however allegedly only took a different position in their pleadings on appeal and during the oral
argument before the Court as they clarified that the sum of P39,352,047.75 under Ordinance No. 0246
Series of 1997 is separate and distinct from and not part of the sum of P50,000,000.00 categorized as
"Current Operating Expenditures" in the 1998 Budget of Caloocan City. Respondents insist that
petitioners may not change their theory for the first time on appeal since their admissions before the
OP bind them, and to do so would be offensive to the basic rules of fair play and justice.
We disagree.
There is nothing in the records to indicate that the sum of P39,352,047.75 appropriated under
Ordinance No. 0246, Series of 1997 is actually part of the P50,000,000.00 allotted for "Expropriation
of Properties," under the "Current Operating Expenditures" of the 1998 Annual Budget of Caloocan
City.
Ordinance No. 0246, Series of 1997[5] appropriated P39,352,047.75 for the expropriation of Lot 26 of
the Maysilo Estate. It is, however, not this but the sum of P39,343,028.00 appropriated under
Ordinance No. 0254, Series of 1998[6] which was sourced from the P50,000,000,00 allotted for "Current
Operating Expenditures". It should be noted that the P50,000,000.00 under "Current Operating
Expenditures" of the 1998 Annual Budget was denominated as for "Expropriation of Properties" but the
particular properties subject of expropriation were not specified. In fact, petitioners, in the same
consolidated answer cited by respondents, have unequivocally stated that "as will be noted from the
budget, the expropriation of properties does not refer to any particular property."[7] Thus, it can be said
that petitioners, as early as when the case was pending before the OP, were already arguing about the
character of the P50,000,000.00 as proper subject of realignment. Spped
The source of confusion lies in the denomination of P50,000,000.00 as money for "Expropriation of
Properties" under "Current Operating Expenditures". As such, it was to be spent for the expropriation
of various properties, including incidental expenses for expropriation. What was exclusively
appropriated for the expropriation of the Maysilo Lot was the P39, 352,047.75 under Ordinance No.
0246, Series of 1997. It is significant to note that this is a 1997 ordinance while the P39,343,028.00
which was originally intended for incidental expenses for expropriation of the Maysilo Lot was under a
1998 ordinance.
That what was being realigned was the P50,000,000.00 under "Current Operating Expenditures" to
fund the P39,343,028.00 expense under Ordinance No. 0254, Series of 1998, and not the
P39,352,047.75 under Ordinance No. 0247, Series of 1997, was further clarified by petitioners during
their oral argument before this Court on April 20, 1999.[8] Jospped
Second. Respondents insist that Ordinance No. 0254, Series of 1998 was passed without funds
actually available. In support of their contention, they cite the dissenting opinion of Justice Kapunan
that "there was no "unavoidable discontinuance" or an "abandonment of the work or activity" as
contemplated under Section 321 of the Local Government Code since the records do not indicate that
the expropriation case before the Regional Trial Court was actually withdrawn, suspended,
discontinued or abandoned by the City of Caloocan.
This argument however is wrongfully premised as it presupposes the identity, which does not however
exist, between the P39,352,047.75 appropriated under Ordinance No. 0246, Series of 1997, and the
P39,343,028.00 appropriated under Ordinance No. 0254, Series of 1998. The former which was a 1997
appropriation was never touched for the expropriation of the Maysilo Lot and did not materialize, while
the latter was sourced from the 1998 Annual Budget under "Current Operating Expenditures" by
realigning the allocation of P50,000,000.00 therefrom to fund the items in Ordinance No. 0254, Series
of 1998. Since the P50,000,000.00 appropriation is classified neither as capital outlay nor as a
continuing appropriation[9] but as "Current Operating Expenditures," it could be a valid subject of
realignment. Sppedjo
Third. Respondents maintain that Ordinance No. 0254, Series of 1998 was enacted without sufficient
compliance with the requirement of Section 50 of the Local Government Code requiring that house
rules be adopted or updated.
The records satisfactorily show, however, that the Sanggunnian took up the matter of adopting a set of
house rules in its general meeting entitled, "Katitikan ng Karaniwang Pulong ng Sangguniang
Panlungsod na ginanap noong ika2 ng Hulyo 1998 sa Bagong Gusali ng Pamahalaang Lungsod ng
Caloocan."[10] During said meeting, the Sanggunian created an Ad Hoc Committee composed of seven
(7) members to study the existing house rules. Thereafter, it enacted Ordinance No. 0254, Series of
1998.
As we have held in our Decision dated July 27, 1999, such succession of events is legally permissible.
The law does not require the completion of the updating or adoption of the internal rules of procedure
before the Sanggunian could act on any other matter like the enactment of an ordinance. It simply
requires that the matter of adopting or updating the internal rules of procedure be taken up during the
first day of session. It would be inequitable to read something more into the requirement of the law and
use it as a basis for finding petitioners guilty of misconduct, especially when the charge is serious
enough to warrant a penalty of suspension from office for three (3) months without pay. Miso
Fourth. Respondents maintain that assuming that the Sanggunian can legally take up matters
pertaining to the supplemental budget even before the adoption or updating of its existing rules of
procedure, the circumstances that preceded the enactment of the supplemental budget were irregular
since there was undue haste in conducting the three readings of Ordinance No. 0254, Series of 1998,
in one session day.
There is nothing in the law, however, which prohibits that the three readings of a proposed ordinance
be held in just one session day. Respondents themselves are aware of this. And it certainly is not the
function of this Court to speculate that the councilors were not given ample time for reflection and
circumspection before the passage of the proposed ordinance by conducting the three readings in just
one day considering that it was a certain Eduardo Tibor, by himself as taxpayer, and not the councilors
themselves, who raised such complaint. It might not be amiss to point out that the salaries of the city
employees were to be funded by the said ordinance which embodied the supplemental budget for 1998,
hence, the urgency for its passage. Even the five (5) councilors[11] who abstained from voting for the
passage of Ordinance 0254, Series of 1998 took advantage of its benefits by submitting to the office of
petitioner Malonzo the names of the employees assigned to their respective offices for salary and
accounting purposes.[12] Nexold
Finally. Respondents assert that assuming that the OP erred in its appreciation of the facts on record,
no grave abuse of discretion correctible by a special civil action for certiorari may be attributed thereto.
But there was grave abuse of discretion on the part of the OP. Its findings are totally devoid of support
in the record. Hence, the Decision of respondent Executive Secretary, suspending the petitioners, on
the basis of the said findings, constitutes grave abuse of discretion amounting to an act done in excess
of jurisdiction.
WHEREFORE, the respondents motion for reconsideration is DENIED with FINALITY.
SO ORDERED.
[G.R. No. 137621. February 6, 2002]
HAGONOY MARKET VENDOR ASSOCIATION, petitioner, vs. MUNICIPALITY OF HAGONOY,
BULACAN, respondent.
DECISION
PUNO, J.:
Laws are of two (2) kinds: substantive and procedural. Substantive laws, insofar as their provisions
are unambiguous, are rigorously applied to resolve legal issues on the merits. In contrast, courts
generally frown upon an uncompromising application of procedural laws so as not to subvert
substantial justice. Nonetheless, it is not totally uncommon for courts to decide cases based on a rigid
application of the so-called technical rules of procedure as these rules exist for the orderly
administration of justice. Interestingly, the case at bar singularly illustrates both instances, i.e., when
procedural rules are unbendingly applied and when their rigid application may be relaxed.
 This is a petition for review of the Resolution[1] of the Court of Appeals, dated February 15, 1999,
dismissing the appeal of petitioner Hagonoy Market Vendor Association from the Resolutions of the
Secretary of Justice for being formally deficient.
The facts: On October 1, 1996, the Sangguniang Bayan of Hagonoy, Bulacan, enacted an
ordinance, Kautusan Blg. 28,[2] which increased the stall rentals of the market vendors in
Hagonoy. Article 3 provided that it shall take effect upon approval. The subject ordinance was posted
from November 4-25, 1996.[3]
In the last week of November, 1997, the petitioners members were personally given copies of the
approved Ordinance and were informed that it shall be enforced in January, 1998.On December 8,
1997, the petitioners President filed an appeal with the Secretary of Justice assailing the
constitutionality of the tax ordinance. Petitioner claimed it was unaware of the posting of the ordinance.
Respondent opposed the appeal. It contended that the ordinance took effect on October 6,
1996 and that the ordinance, as approved, was posted as required by law. Hence, it was pointed out
that petitioners appeal, made over a year later, was already time-barred.
The Secretary of Justice dismissed the appeal on the ground that it was filed out of
time, i.e., beyond thirty (30) days from the effectivity of the Ordinance on October 1, 1996, as prescribed
under Section 187 of the 1991 Local Government Code. Citing the case of Taada vs. Tuvera,[4] the
Secretary of Justice held that the date of effectivity of the subject ordinance retroacted to the date of its
approval in October 1996, after the required publication or posting has been complied with, pursuant
to Section 3 of said ordinance.[5]
After its motion for reconsideration was denied, petitioner appealed to the Court of
Appeals. Petitioner did not assail the finding of the Secretary of Justice that their appeal was
filed beyond the reglementary period. Instead, it urged that the Secretary of Justice should have
overlooked this mere technicality and ruled on its petition on the merits. Unfortunately, its petition for
review was dismissed by the Court of Appeals for being formally deficient as it was not accompanied by
certified true copies of the assailed Resolutions of the Secretary of Justice.[6]
Undaunted, the petitioner moved for reconsideration but it was denied.[7]
Hence, this appeal, where petitioner contends that:
I
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN ITS STRICT, RIGID AND
TECHNICAL ADHERENCE TO SECTION 6, RULE 43 OF THE 1997 RULES OF COURT AND THIS, IN
EFFECT, FRUSTRATED THE VALID LEGAL ISSUES RAISED BY THE PETITIONER THAT ORDINANCE
(KAUTUSAN) NO. 28 WAS NOT VALIDLY ENACTED, IS CONTRARY TO LAW AND IS
UNCONSTITUTIONAL, TANTAMOUNT TO AN ILLEGAL EXACTION IF ENFORCED RETROACTIVELY
FROM THE DATE OF ITS APPROVAL ON OCTOBER 1, 1996.
II
THE HONORABLE COURT OF APPEALS, WITH DUE RESPECT, ERRED IN DENYING THE MOTION
FOR RECONSIDERATION NOTWITHSTANDING PETITIONERS EXPLANATION THAT ITS FAILURE TO
SECURE THE CERTIFIED TRUE COPIES OF THE RESOLUTIONS OF THE DEPARTMENT OF JUSTICE
WAS DUE TO THE INTERVENTION OF AN ACT OF GOD TYPHOON LOLENG, AND THAT THE ACTUAL
COPIES RECEIVED BY THE PETITIONER MAY BE CONSIDERED AS SUBSTANTIAL COMPLIANCE
WITH THE RULES.
III
PETITIONER WILL SUFFER IRREPARABLE DAMAGE IF ORDINANCE/KAUTUSAN NO. 28 BE NOT
DECLARED NULL AND VOID AND IS ALLOWED TO BE ENFORCED RETROACTIVELY FROM
OCTOBER 1, 1996, CONTRARY TO THE GENERAL RULE, ARTICLE 4 OF THE CIVIL CODE, THAT NO
LAW SHALL HAVE RETROACTIVE EFFECT.
The first and second assigned errors impugn the dismissal by the Court of Appeals of its petition
for review for petitioners failure to attach certified true copies of the assailed Resolutions of the
Secretary of Justice. The petitioner insists that it had good reasons for its failure to comply with the
rule and the Court of Appeals erred in refusing to accept its explanation.
We agree.
In its Motion for Reconsideration before the Court of Appeals,[8] the petitioner satisfactorily
explained the circumstances relative to its failure to attach to its appeal certified true copies of the
assailed Resolutions of the Secretary of Justice, thus:
x x x (D)uring the preparation of the petition on October 21, 1998, it was raining very hard due to
(t)yphoon Loleng. When the petition was completed, copy was served on the Department of Justice at
about (sic) past 4:00 p.m. of October 21, 1998, with (the) instruction to have the Resolutions of the
Department of Justice be stamped as certified true copies. However, due to bad weather, the person
in charge (at the Department of Justice) was no longer available to certify to (sic) the Resolutions.
The following day, October 22, 1998, was declared a non-working holiday because of (t)yphoon
Loleng. Thus, petitioner was again unable to have the Resolutions of the Department of Justice
stamped certified true copies. In the morning of October 23, 1998, due to time constraint(s), herein
counsel served a copy by personal service on (r)espondents lawyer at (sic) Malolos, Bulacan, despite the
flooded roads and heavy rains. However, as the herein counsel went back to Manila, (official business
in) government offices were suspended in the afternoon and the personnel of the Department of Justice
tasked with issuing or stamping certified true copies of their Resolutions were no longer available.
To avoid being time-barred in the filing of the (p)etition, the same was filed with the Court of Appeals
as is.
We find that the Court of Appeals erred in dismissing petitioners appeal on the ground that
it was formally deficient. It is clear from the records that the petitioner exerted due diligence to get
the copies of its appealed Resolutions certified by the Department of Justice, but failed to do so on
account of typhoon Loleng. Under the circumstances, respondent appellate court should have tempered
its strict application of procedural rules in view of the fortuitous event considering that litigation is not
a game of technicalities.[9]
Nonetheless, we hold that the petition should be dismissed as the appeal of the petitioner with
the Secretary of Justice is already time-barred. The applicable law is Section 187 of the 1991 Local
Government Code which provides:
SEC. 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures;
Mandatory Public Hearings. - The procedure for the approval of local tax ordinances and revenue
measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall
be conducted for the purpose prior to the enactment thereof: Provided, further, That any question on
the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal
within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a
decision within sixty (60) days from the receipt of the appeal: Provided, however, That such appeal
shall not have the effect of suspending the effectivity of the ordinance and accrual and payment
of the tax, fee or charge levied therein: Provided, finally, That within thirty (30) days after receipt
of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon
the appeal, the aggrieved party may file appropriate proceedings.
The aforecited law requires that an appeal of a tax ordinance or revenue measure should be
made to the Secretary of Justice within thirty (30) days from effectivity of the ordinance and even
during its pendency, the effectivity of the assailed ordinance shall not be suspended. In the case
at bar, Municipal Ordinance No. 28 took effect in October 1996. Petitioner filed its appeal only in
December 1997, more than a year after the effectivity of the ordinance in 1996. Clearly, the
Secretary of Justice correctly dismissed it for being time-barred. At this point, it is apropos to state
that the timeframe fixed by law for parties to avail of their legal remedies before competent courts is
not a mere technicality that can be easily brushed aside. The periods stated in Section 187 of the
Local Government Code are mandatory.[10] Ordinance No. 28 is a revenue measure adopted by
the municipality of Hagonoy to fix and collect public market stall rentals. Being its lifeblood, collection
of revenues by the government is of paramount importance. The funds for the operation of its agencies
and provision of basic services to its inhabitants are largely derived from its revenues and
collections. Thus, it is essential that the validity of revenue measures is not left uncertain for a
considerable length of time.[11] Hence, the law provided a time limit for an aggrieved party to assail
the legality of revenue measures and tax ordinances.
In a last ditch effort to justify its failure to file a timely appeal with the Secretary of Justice, the
petitioner contends that its period to appeal should be counted not from the time the ordinance took
effect in 1996 but from the time its members were personally given copies of the approved ordinance
in November 1997. It insists that it was unaware of the approval and effectivity of the subject ordinance
in 1996 on two (2) grounds: first, no public hearing was conducted prior to the passage of the ordinance
and, second, the approved ordinance was not posted.
We do not agree.
Petitioners bold assertion that there was no public hearing conducted prior to the passage
of Kautusan Blg. 28 is belied by its own evidence. In petitioners two (2) communications with the
Secretary of Justice,[12] it enumerated the various objections raised by its members before the passage
of the ordinance in several meetings called by the Sanggunian for the purpose. These show beyond
doubt that petitioner was aware of the proposed increase and in fact participated in the public hearings
therefor. The respondent municipality likewise submitted the Minutes and Report of the public hearings
conducted by the Sangguniang Bayans Committee on Appropriations and Market on February 6, July
15 and August 19, all in 1996, for the proposed increase in the stall rentals.[13]
Petitioner cannot gripe that there was practically no public hearing conducted as its objections to
the proposed measure were not considered by the Sangguniang Bayan. To be sure, public hearings are
conducted by legislative bodies to allow interested parties to ventilate their views on a proposed law or
ordinance. These views, however, are not binding on the legislative body and it is not compelled by law
to adopt the same. Sanggunian members are elected by the people to make laws that will promote the
general interest of their constituents.They are mandated to use their discretion and best judgment in
serving the people. Parties who participate in public hearings to give their opinions on a proposed
ordinance should not expect that their views would be patronized by their lawmakers.
On the issue of publication or posting, Section 188 of the Local Government Code provides:
Section 188. Publication of Tax Ordinance and Revenue Measures. Within ten (10) days after their
approval, certified true copies of all provincial, city, and municipal tax ordinances or revenue measures
shall be published in full for three (3) consecutive days in a newspaper of local circulation; Provided,
however, That in provinces, cities and municipalities where there are no newspapers of local
circulation, the same may be posted in at least two (2) conspicuous and publicly accessible
places. (emphasis supplied)
The records is bereft of any evidence to prove petitioners negative allegation that the subject
ordinance was not posted as required by law. In contrast, the respondent Sangguniang Bayan of
the Municipality of Hagonoy, Bulacan, presented evidence which clearly shows that the
procedure for the enactment of the assailed ordinance was complied with. Municipal Ordinance
No. 28 was enacted by the Sangguniang Bayan of Hagonoy on October 1, 1996. Then Acting Municipal
Mayor Maria Garcia Santos approved the Ordinance on October 7, 1996. After its approval, copies of
the Ordinance were given to the Municipal Treasurer on the same day. On November 9, 1996, the
Ordinance was approved by the Sangguniang Panlalawigan. The Ordinance was posted during the
period from November 4 - 25, 1996 in three (3) public places, viz: in front of the municipal building,
at the bulletin board of the Sta. Ana Parish Church and on the front door of the Office of the Market
Master in the public market.[14] Posting was validly made in lieu of publication as there was no
newspaper of local circulation in the municipality of Hagonoy. This fact was known to and admitted
by petitioner. Thus, petitioners ambiguous and unsupported claim that it was only sometime in
November 1997 that the Provincial Board approved Municipal Ordinance No. 28 and so the posting
could not have been made in November 1996[15] was sufficiently disproved by the positive evidence of
respondent municipality. Given the foregoing circumstances, petitioner cannot validly claim lack of
knowledge of the approved ordinance. The filing of its appeal a year after the effectivity of the subject
ordinance is fatal to its cause.
Finally, even on the substantive points raised, the petition must fail. Section 6c.04 of the 1993
Municipal Revenue Code and Section 191 of the Local Government Code limiting the percentage of
increase that can be imposed apply to tax rates, not rentals. Neither can it be said that the rates were
not uniformly imposed or that the public markets included in the Ordinance were unreasonably
determined or classified. To be sure, the Ordinance covered the three (3) concrete public markets: the
two-storey Bagong Palengke, the burnt but reconstructed Lumang Palengke and the more
recent Lumang Palengke with wet market. However, the Palengkeng Bagong Munisipyo or Gabaldon
was excluded from the increase in rentals as it is only a makeshift, dilapidated place, with no doors or
protection for security, intended for transient peddlers who used to sell their goods along the
sidewalk.[16]
IN VIEW WHEREOF, the petition is DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.
[G.R. No. 121215. November 13, 1997]
MAYOR OSCAR DE LOS REYES, petitioner, vs. SANDIGANBAYAN, THIRD DIVISION, and the
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
ROMERO, J.:
The significance of the minutes taken during the session of a local legislative assembly is the
determinant issue in this present petition.
Petitioner, along with two others, was charged with the crime of falsification of a public document,
specifically Resolution No. 57-S-92 dated July 27, 1992 of the Municipal Council of Mariveles,
Bataan. The complaint[1] alleged that the resolution, appropriating the amount of P8,500.00 for the
payment of the terminal leave of two municipal employees, was anomalous for not having been approved
by the said Council, as the minutes of the proceedings therein made no reference to the supposed
approval thereof. It contended that its seeming passage was carried out by petitioner in connivance
with Sangguniang Bayan (SB) Member Jesse Concepcion and SB Secretary Antonio Zurita.
After preliminary investigation, the deputized prosecutor of Balanga, Bataan recommended the
filing of an information[2] for Falsification of Public Document against petitioner and Concepcion,
excluding Zurita who died during the pendency hereof.
On September 21, 1994, the information filed before the Sandiganbayan reads as follows:
That on or about July 27, 1992 or sometimes (sic) prior or subsequent thereto, in Mariveles, Bataan,
Philippines, and within the jurisdiction of this Honorable Court, OSCAR DELOS REYES and JESSE
CONCEPCION, both public officers, being Municipal Mayor of Mariveles, Bataan and Member of the
Sangguniang Bayan of Mariveles, Bataan, passed and approved the said resolution appropriating the
amount of P8,500.00 for payment of the terminal leave of two (2) employees of the municipality, when
in truth and in fact as both accused knew well the same is false and incorrect as the said resolution
was not approved by the aforesaid Sangguniang Bayan for which both accused has the obligation to
disclose the truth.
CONTRARY TO LAW.[3]
On October 14, 1994, prior to his arraignment, petitioner filed a Motion for Reinvestigation
arguing, among other things, that the Ombudsman previously dismissed a similar complaint against
him involving the same factual setting.[4]
Likewise adduced in the motion is the joint affidavit of the other members of the Sangguniang Bayan
of Mariveles attesting to the actual passage and approval of Resolution No. 57-S-92.
In a resolution dated December 29, 1994, respondent Sandiganbayan denied the Motion for
Reinvestigation, the pertinent portion of which reads:
Acting on accused Mayor Oscar delos Reyes Motion for Reinvestigation and accused Jesse Concepcions
Manifestation, the same are hereby DENIED, being without merit and the prosecution having vigorously
opposed the Motion. The allegations of fact and the arguments of counsel are best taken up in the trial
on the merits. As found by the prosecution, a prima facie case exists.
Consequently, let the arraignment of the above entitled case be set on March 03, 1995, at 8:30 A.M. [5]
After the motion for reconsideration was denied on May 24, 1995, petitioner filed this instant
petition for certiorari. On September 18, 1995, the Court resolved to issue the temporary restraining
order prayed for by petitioner.
The order of respondent Sandiganbayan must be sustained.
In an effort to exonerate himself from the charge, petitioner argues that the deliberations
undertaken and the consequent passage of Resolution No. 57-S-92 are legislative in nature.He adds
that as local chief executive, he has neither the official custody of nor the duty to prepare said
resolution; hence, he could not have taken advantage of his official position in committing the crime of
falsification as defined and punished under Article 171[6] of the Revised Penal Code.
Petitioner would like to impress upon this Court that the final step in the approval of an ordinance
or resolution, where the local chief executive affixes his signature, is purely a ministerial act. This view
is erroneous. Article 109(b) of the Local Government Code outlines the veto power of the Local Chief
Executive which provides:
Article 109 (b) The local chief executive, except the punong barangay shall have the power to veto any
particular item or items of an appropriations ordinance, an ordinance or resolution adopting a local
development plan and public investment program or an ordinance directing the payment of money or
creating liability. x x x. (Underscoring supplied)
Contrary to petitioners belief, the grant of the veto power confers authority beyond the simple
mechanical act of signing an ordinance or resolution, as a requisite to its enforceability.Such power
accords the local chief executive the discretion to sustain a resolution or ordinance in the first instance
or to veto it and return it with his objections to the Sanggunian, which may proceed to reconsider the
same. The Sanggunian concerned, however, may override the veto by a two-thirds (2/3) vote of all its
members thereby making the ordinance or resolution effective for all legal intents and purposes. It is
clear, therefore, that the concurrence of a local chief executive in the enactment of an ordinance or
resolution requires, not only a flourish of the pen, but the application of judgment after meticulous
analysis and intelligence as well.
Petitioners other contention that the Ombudsman should have dismissed the present case in view
of a previous dismissal of a similar complaint involving the same factual context is likewise misplaced.
As explained by Deputy Special Prosecutor Leonardo P. Tamayo in his comment, the other case
relied upon by petitioner has no relation whatsoever with the one in question.Notably, the former case
was subject of a separate complaint and preliminary investigation, hence, the findings and records
therein could not be made part of the case under consideration.[7]
It must be stressed that the Ombudsman correctly relied on the minutes taken during the session
of the Sangguniang Bayan held last July 27, 1992, which petitioner regards as inconclusive evidence
of what actually transpired therein. In a long line of cases, the Court, in resolving conflicting assertions
of the protagonists in a case, has placed reliance on the minutes or the transcribed stenographic notes
to ascertain the truth of the proceedings therein.
The following cases illustrate the importance of the minutes:
It was held that contrary to petitioners claim, what the minutes only show is that on August 12, 1994
the Sanggunian took a vote on the administrative case of respondent Mayor and not that it then
rendered a decision as required by Section 66(a) of the Local Government Code.[8]
With the same factual context as in the case at bar, petitioners herein were accused of having falsified
or caused the falsification of the excerpts of the minutes of the regular sessions of the Sangguniang
Panlalawigan of Quirino province on August 15, 1988 and September 19, 1988. x x x.[9]
In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the
proposed Manila Revenue Code that were sent to interested parties as required by Article 276(b) of the
Implementing Rules of the Local Government Code nor were copies of the proposed ordinance published
in three successive issues of a newspaper of general circulation pursuant to Article 276(a). No minutes
were submitted to show that the obligatory public hearings had been held.[10]
It appears from the minutes of the board meeting of February 28, 1958 that the names of the members
present as well those who were absent have been recorded, and that all those present took active part
in the debates and deliberations. At the end of the session, when the presiding officer asked the
members if there were any objections to the approval of the proposed budget, only one councilor raised
an objection. The minutes, therefore, could readily show who of the members present in the
deliberations voted pro and who voted con.[11]
The certification of the election registrar relied upon by the petitioner is correct as far as it goes. Only
80 votes appear to have voted according to the precinct book in the sense that only 80 voters affixed
their signatures thereon after voting. But this does not necessarily mean that no other voters cast their
ballots in the questioned precinct: there were 279 in all, according to the minutes of voting, although
only 80 of them signed the precinct book.[12]
As found by the trial court, the said minutes of the meeting of the Sangguniang Bayan do not mention
the execution of any deed to perfect the agreement. An engineer was appointed to survey the old
abandoned road, but this act does not in any manner convey title over the abandoned road to the
Pansacola spouses nor extinguishes their ownership over the land traversed by the new provincial
highway.[13]
In the case at bar, the minutes of the session reveal that petitioner attended the session of the
Sangguniang Bayan on July 27, 1992. It is evident, therefore, that petitioner approved the subject
resolution knowing fully well that the subject matter treated therein was neither taken up and
discussed nor passed upon by the Sangguniang Bayan during the legislative session.[14]
Thus, the Court accords full recognition to the minutes as the official repository of what actually
transpires in every proceeding. It has happened that the minutes may be corrected to reflect the true
account of a proceeding, thus giving the Court more reason to accord them great weight for such
subsequent corrections, if any, are made precisely to preserve the accuracy of the records. In light of
the conflicting claims of the parties in the case at bar, the Court, without resorting to the minutes, will
encounter difficulty in resolving the dispute at hand.
With regard to the joint affidavit of some members of the Sangguniang Bayan attesting to the
actual passage and approval of Resolution No. 57-S-92, the Court finds the same to have been belatedly
submitted as a last minute attempt to bolster petitioners position, and, therefore, could not in any way
aid the latters cause.
Indeed, the arguments raised by petitioners counsel are best taken up in the trial on the merits.
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The assailed
resolutions of the Sandiganbayan dated December 29, 1994, and May 24, 1995, are hereby
AFFIRMED. The temporary restraining order issued by this Court on September 18, 1995, is
hereby LIFTED.
The Sandiganbayan is DIRECTED to set Criminal Case No. 21073 for arraignment and trial.
SO ORDERED.
[G.R. No. 134213. July 20, 1999]
Romeo J. Gamboa, Jr., petitioner, vs. Marcelo Aguirre, Jr., and Juan Y. Araneta, respondents.
DECISION
YNARES-SANTIAGO, J.:
The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the Acting
Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)?
The facts are not in dispute.
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents
Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros Occidental Governor, Vice-Governor and
SP members, respectively. Sometime in August of 1995, the governor designated petitioner as Acting
Governor for the duration of the formers official trip abroad until his return. When the SP held its
regular session on September 6, 1995, respondents questioned the authority of petitioner to preside
therein in view of his designation as Acting Governor and asked him to vacate the Chair. The latter,
however, refused to do so. In another session, seven (7) members of the SP voted to allow petitioner to
continue presiding while four (4) others voted against with one (1) abstention. On September 22, 1995,
respondents filed before the lower court a petition for declaratory relief and prohibition. In the
meantime, on October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a
decision and declared petitioner as temporarily legally incapacitated to preside over the sessions of the
SP during the period that he is the Acting Governor.[1] Aggrieved, petitioner filed a petition for review
raising the issue earlier mentioned. Although this case is dismissible for having become moot and
academic considering the expiration in 1998 of the terms of office of the local officials involved herein,
the Court nonetheless proceeds to resolve this common controversy but novel issue under the existing
laws on local government.
Sections 49(a) and 466(a)(1) of Republic Act (R.A.) No. 7160 otherwise known as the Local
Government Code of 1991, provide that the Vice-Governor shall be the presiding officer of the SP.[2] In
addition to such function, he become(s)[3] the Governor and assume(s)[4] the higher office for the
unexpired term of his predecessor, in case of permanent vacancy therein. When the vacancy, however,
is merely temporary, the Vice-Governor shall automatically exercise the powers (subject to certain
limitations) and perform the duties and functions[5] of the Governor. It may be noted that the Code
provides only for modes of succession in case of permanent vacancy in the office of the Governor and
the Vice-Governor (whether single or simultaneously) as well as in case of a temporary vacancy in the
office of the Governor. But, no such contingency is provided in case of temporary vacancy in the office
of the Vice-Governor, just like the 1983 Local Government Code.[6]
It is correct that when the Vice-Governor exercises the powers and duties of the Office of the
Governor, he does not assume the latter office. He only acts as the Governor but does not become the
Governor. His assumption of the powers, duties and functions of the provincial Chief Executive does
not create a permanent vacuum or vacancy in his position as the Vice-Governor. Necessarily, he does
not relinquish nor abandon his position and title as Vice-Governor by merely becoming an Acting
Governor, (not Governor) or by merely exercising the powers and duties of the higher office. But the
problem is, while in such capacity, does he temporarily relinquish the powers, functions, duties and
responsibilities of the Vice-Governor, including the power to preside over the sessions of the SP?
Sad to say the new Local Government Code is silent on this matter, yet this query should be
answered in the positive. A Vice-Governor who is concurrently an Acting Governor is actually a quasi-
Governor. This means, that for purposes of exercising his legislative prerogatives and powers, he is
deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor
and Vice-Governor are essentially executive in nature, whereas plain members of the provincial board
perform functions partaking of a legislative character. This is because the authority vested by law in
the provincial boards involves primarily a delegation of some legislative powers of Congress. [7] Unlike
under the old Code, where the Governor is not only the provincial Chief Executive,[8] but also the
presiding officer of the local legislative body,[9] the new Code delineated the union of the executive-
legislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160,
the Governor was deprived of the power to preside over the SP and is no longer considered a member
thereof.[10] This is clear from the law, when it provides that local legislative power shall be vested in the
SP,[11] which is the legislative body of the province, and enumerates therein its membership consisting
of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral representatives, and
4.) those ex-officio members, namely:
a.) president of the provincial chapter of the liga ng mga barangay,
b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,
c.) president of the provincial federation of sanggunian members of municipalities and component
cities.[12]
Not being included in the enumeration, the Governor is deemed excluded applying the rule in legal
hermeneutics that when the law enumerates, the law necessarily excludes. On the contrary, local
executive power in the province is vested alone in the Governor.[13] Consequently, the union of
legislative-executive powers in the office of the local chief executive under the former Code has been
disbanded, so that either department now comprises different and non-intermingling official
personalities with the end in view of ensuring a better delivery of public service and provide a system
of check and balance between the two.
It has been held that if a Mayor who is out of the country is considered effectively absent, the Vice-
Mayor should discharge the duties of the mayor during the latters absence. [14] This doctrine should
equally apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is
difficult to lay down a definite rule as to what constitutes absence, yet this term should be reasonably
construed to mean effective absence,[15] that is, one that renders the officer concerned powerless, for
the time being, to discharge the powers and prerogatives of his office.[16] There is no vacancy whenever
the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there
is no person lawfully authorized to assume and exercise at present the duties of the office.[17] By virtue
of the foregoing definition, it can be said that the designation, appointment or assumption of the Vice-
Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-
Governor during such contingency. Considering the silence of the law on the matter, the mode of
succession provided for permanent vacancies, under the new Code, in the office of the Vice-Governor
may likewise be observed in the event of temporary vacancy occurring in the same office.[18] This is so
because in the eyes of the law, the office to which he was elected was left barren of a legally qualified
person to exercise the duties of the office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the
duties of the latter office, since the nature of the duties of the provincial Governor call for a full-time
occupant to discharge them.[19] Such is not only consistent with but also appears to be the clear
rationale of the new Code wherein the policy of performing dual functions in both offices has already
been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a
corresponding temporary vacancy in the office of the Vice-Governor whenever the latter acts as
Governor by virtue of such temporary vacancy. This event constitutes an inability on the part of the
regular presiding officer (Vice Governor) to preside during the SP sessions, which thus calls for the
operation of the remedy set in Article 49(b) of the Local Government Code concerning the election of a
temporary presiding officer. The continuity of the Acting Governors (Vice-Governor) powers as presiding
officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), (i)n the event of
the inability of the regular presiding officer to preside at the sanggunian session, the members present
and constituting a quorum shall elect from among themselves a temporary presiding officer.[20]
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
[G.R. No. 126576. March 5, 1997]
MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON ELECTIONS EN BANC, and
ATTY. AURORA S. DE ALBAN, respondents.
DECISION
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 Tumauni, Isabela, scheduled the recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining Order[2] enjoining public
respondent COMELEC from implementing and enforcing Resolution No. 96-2951.
The facts of this case are not disputed.
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 in
Tumauni, 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.
In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson, the
COMELEC en banc issued the herein assailed Resolution No. 96-2951.
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 and 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
Retraining 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 Sanches, 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 x x x 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 petitioners 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 x x x 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.lex
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.
Section 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 x x x.[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:
lexWhileit 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
COMELECs 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 x
x x 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
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. x x x 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 direction 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 peoples 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 x x x
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 x x x.
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 Articles XIII expressly
recognized the Role and Rights of Peoples Organizations x x x.
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 x x x. 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
x x x municipal x x x 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 represetantive
of the official sought to be recalled, and in public place in the x x x municipality x x x.[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 constitution 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]the only logical reasons 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 parting
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]
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 petitioners 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.
Costs against private respondent.
SO ORDERED.

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 xxx. 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:

xxx 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 dissatisfiedwith
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