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G.R. No. 121592 July 5, 1996 ROLANDO P. DELA TORRE vs. COMELEC and MARCIAL VILLANUEVA Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC. The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8, 1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) 2 which provides as follows: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence; In disqualifying the petitioner, the COMELEC held that: Documentary evidence . . . established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court, . . . in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1, 1990. Respondent appealed the said conviction with the Regional Trial Court . . . , which however, affirmed respondent's conviction in a Decision dated November 14, 1990. Respondent's conviction became final on January 18, 1991. . . . , there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is "dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D. 1612" . . . , the nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude . . . . 3 The second assailed resolution, dated August 28, 1995, denied petitioner's motion for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well. 4 The two (2) issues to be resolved are: 1. Whether or not the crime of fencing involves moral turpitude. 2. Whether or not a grant of probation affects Section 40 (a)'s applicability. Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification i.e., "when the conviction by final judgment is for an offense involving moral turpitude." And in this connection, the Court has consistently adopted the definition in Black's Law Dictionary of "moral turpitude" as: . . . an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. 5 Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime involves moral turpitude, is for the Supreme Court to determine". 6 In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not 7, the rationale of which was set forth in "Zari v. Flores," 8 to wit: It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself,

and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited. 9 This guidelines nonetheless proved short of providing a clear-cut solution, for in "International Rice Research Institute v. NLRC, 10 the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statue. 11 The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone. Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as: . . . . the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. 12 From the foregoing definition may be gleaned the elements of the crime of fencing which are: 1. A crime of robbery or theft has been committed; 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and [Emphasis supplied.] 4. There is, on the part of the accused, intent to gain for himself or for another. 13 Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded one's peaceful dominion for gain thus deliberately reneging in the process "private duties" they owe their "fellowmen" or "society" in a manner "contrary to . . . accepted and customary rule of right and duty . . . , justice, honesty . . . or good morals." The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on "Human Relations" and "Solutio Indebiti", to wit: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Art. 22. Everyone person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

Art. 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. The same underlying reason holds even if the "fence" did not have actual knowledge, but merely "should have known" the origin of the property received. In this regard, the Court held: When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists. 14 [Emphasis supplied.] Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefor should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, . . . , object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing" a presumption that is, according to the Court, "reasonable for no other natural or logical inference can arise from the established fact of . . . possession of the proceeds of the crime of robbery or theft." 15 All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. 16 Petitioner's conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. 17 Clearly then, petitioner's theory has no merit. ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto. Salalima et al vs Guingona (GR 11589-92) We agree with the petitioners that Governor Salalima could no longer be held administratively liable in O.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Cortes and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term. The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. Such a rule is not only founded on the theory that an officials reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound public policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts, alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal acts which the reelected official may have committed during his previous term.

[G.R. NO. 168550 : August 10, 2006] URBANO M. MORENO v. COMELEC and NORMA L. MEJES, CHICO-NAZARIO In this Petition1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of the Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. The following are the undisputed facts: Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998. Moreno filed an answer averring that the petition states no cause of action because he was already granted probation. Allegedly, following the case of Baclayon v. Mutia,4 the imposition of the sentence of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a result of his conviction, including the right to vote and be voted for in the July 15, 2002 elections. The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing. After due proceedings, the Investigating Officer recommended that Moreno be disqualified from running for Punong Barangay. The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the Comelec en banc, the Resolution of the First Division was affirmed. According to the Comelec en banc, Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence, are disqualified from running for any elective local position. 5 Since Moreno was released from probation on December 20, 2000, disqualification shall commence on this date and end two (2) years thence. The grant of probation to Moreno merely suspended the execution of his sentence but did not affect his disqualification from running for an elective local office. Further, the Comelec en banc held that the provisions of the Local Government Code take precedence over the case of Baclayon v. Mutia cited by Moreno and the Probation Law because it is a much later enactment and a special law setting forth the qualifications and disqualifications of elective local officials. In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those who have served their sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the Local Government Code because it is a special law which applies only to probationers. Further, even assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous misconduct. In its Comment6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues that this Court in Dela Torre v. Comelec7 definitively settled a similar controversy by ruling that conviction for an offense involving moral turpitude stands even if the candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and remains totally unaffected notwithstanding the grant of probation. Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out material differences between his case and Dela Torre v. Comelec which allegedly warrant a conclusion favorable to him.

According to Moreno, Dela Torre v. Comelec involves a conviction for violation of the Anti-Fencing Law, an offense involving moral turpitude covered by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for probation nearly four (4) years after his conviction and only after appealing his conviction, such that he could not have been eligible for probation under the law. In contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local Government Code does not apply to him. The resolution of the present controversy depends on the application of the phrase "within two (2) years after serving sentence" found in Sec. 40(a) of the Local Government Code, which reads: Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; [Emphasis supplied.] We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of which Moreno was convicted by final judgment, involves moral turpitude falling under the first part of the above-quoted provision. The question of whether Arbitrary Detention is a crime involving moral turpitude was never raised in the petition for disqualification because the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his alleged disqualification from running for a local elective office within two (2) years from his discharge from probation after having been convicted by final judgment for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the crucial issue being whether Moreno's sentence was in fact served. In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding that the crime of fencing of which petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase "within two (2) years after serving sentence" should have been interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code. The Court's declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add, ought to be considered an obiter in view of the fact that Dela Torre was not even entitled to probation because he appealed his conviction to the Regional Trial Court which, however, affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the alternative remedy of availing of the Probation Law, the purpose of which is to prevent speculation or opportunism on the part of an accused who, although already eligible, did not at once apply for probation, but did so only after failing in his appeal.9 Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase "service of sentence," understood in its general and common sense, means the confinement of a convicted person in a penal facility for the period adjudged by the court.10 This seemingly clear and unambiguous provision, however, has spawned a controversy worthy of this Court's attention because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the law to include even those who did not serve a day of their sentence because they were granted probation. Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve the adjudged sentence having been granted probation and finally discharged by the trial court. In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of

suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession. Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period11 imposed upon Moreno were similarly suspended upon the grant of probation. It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation. Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation,12 the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order.13 It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused on the fact that Moreno's judgment of conviction attained finality upon his application for probation instead of the question of whether his sentence had been served. The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence. This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation which, we reiterate, should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run. The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of the Probation Law provides that "[t]he final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted." Thus, when Moreno was finally discharged upon the court's finding that he has fulfilled the terms and conditions of his probation, his case was deemed terminated and all civil rights lost or suspended as a result of his conviction were restored to him, including the right to run for public office. Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for judicial interpretation,14 our conclusion will remain the same. It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the intended meaning of the phrase "service of sentence," i.e., whether the legislature also meant to disqualify those who have been granted probation. The Court's function, in the face of this seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government Code. Interpretare et concordare legis legibus est optimus interpretandi. Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which is granted to a deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he was convicted. 15 Thus, the Probation Law lays out rather stringent standards regarding who are qualified for probation. For instance, it provides that the benefits of probation shall not be extended to those sentenced to serve a maximum term of imprisonment of more than six (6) years; convicted of any offense against the security of the State; those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less than P200.00; those who have been once on probation; and those who are already serving sentence at the time the substantive provisions of the Probation Law became applicable.16

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not specifically disqualify probationers from running for a local elective office. This omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not covered by the disqualification. Further, it should be mentioned that the present Local Government Code was enacted in 1991, some seven (7) years after Baclayon v. Mutia was decided. When the legislature approved the enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification from holding public office. That it chose not to include probationers within the purview of the provision is a clear expression of the legislative will not to disqualify probationers. On this score, we agree with Moreno that the Probation Law should be construed as an exception to the Local Government Code. While the Local Government Code is a later law which sets forth the qualifications and disqualifications of local elective officials, the Probation Law is a special legislation which applies only to probationers. It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute.17 In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification to include Moreno, the Comelec committed an egregious error which we here correct. We rule that Moreno was not disqualified to run for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec18 where he said that "it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms." WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as well as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on Elections is directed to proceed in accordance with this Decision. No pronouncement as to costs.

G.R. Nos. 117589-92 May 22, 1996 ROMEO R. SALALIMA vs. HON. TEOFISTO T. GUINGONA

Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of authority under Section 60 (e) of the Local Government Code of 1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60 (c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to be served successively but not to go beyond their respective unexpired terms in accordance with Section 66 (b) of R.A. No. 7160. Prefacing the petition with a claim that the challenged administrative order is "an oppressive and capricious exercise of executive power," the petitioners submit that: I. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE. II.THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,471.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992. III.THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE: A. WHAT WERE NOT COMPLAINED OF; B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY COVERED BY PRESCRIPTION. IV.THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT SITTING EN BANC. We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far submitted, after due consideration of the satisfactory explanation of the petitioners that his case has not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the Office of the Solicitor General that this case be resolved on the merits. In seeking a resolution of this case on the merits, the office of the Solicitor General invites the attention of the Court to the following: (a) While the periods of suspension have been served by petitioners and that some of them have even been elected to other government positions, there is the primary issue of whether the suspensions were valid and grounded on sufficient cause. (b) If the suspensions are found to be valid, petitioners are not entitled to reimbursement of salaries during their suspension period. (c) If upheld, Administrative Order No. 15, would be used as a strong ground in filing cases against petitioners for violations of the Anti Graft and Corrupt Practices Act.

(d) Corollary [sic] to these issues is the issue of the interpretation and application of the [R]eal Property Tax Code and the Local Government Code under the circumstances of this case. (e) The resolution of these issues would finally put to rest whether respondents acted with grave abuse of discretion amounting to lack of jurisdiction for having suspended petitioners on the basis of their findings in the four (4) administrative cases filed against the petitioners. The factual antecedents are not complicated. Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President and later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its findings and recommendations. The Ad Hoc committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar. On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President. On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval the following pertinent findings and recommendations of the Committee; thus: The finding of the Ad-Hoc Committee in OP Case Nos. 547(1, 5469, 5471 and 5450 are as follows I. OP Case No. 5470 This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaa, and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go [S]r., Jesus Marcellana, Ramon Fernandez, Jr. Masikap Fontilla, and Wilbor Rontas. Docketed as OP Case No. 5470, the complaint charges the respondents for malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the "Local Government Code." The antecedent facts are as follows: On 4 June 1990, the Supreme Court in the case entitled "National Power Corporation (NPC) v. The Province of Albay, et al.", G.R. No. 87479 rendered judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties in Albay covering the period 11 June 1984 to 10 March 1987. Citing the fact that its tax exemption privileges had been revoked, the Supreme Court held that NPC's real properties, consisting mainly of geothermal plants in Tiwi and substation facilities in Daraga, are subject to real estate tax in accordance with Presidential Decree (PD) No. 464, as amended, otherwise known as the "Real Property Tax Decree." Earlier, said properties were sold at an auction sale conducted by the Province of Albay (the "Province") to satisfy NPC's tax liabilities. Being the sole bidder at the auction, the Province acquired ownership over said properties. On 29 July 1992, the NPC through then President Pablo Malixi and the Province represented by respondent Salalima, entered into a Memorandum of agreement ("MOA") [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then estimated at P214,845,104.76. Under the MOA, the parties agreed that: the actual amount collectible from NPC will have to be recomputed/revalidated;

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NPC shall make an initial payment of P17,763,000.00 upon signing of the agreement; the balance of the recomputed/revalidated amount (less the aforesaid initial payment), shall be paid in twenty-four (24) equal monthly installments to commence in September 1992; and ownership over the auctioned properties shall revert to NPC upon satisfaction of the tax liabilities. On 3 August 1992, Mayor Corral formally requested the Province through respondent Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where NPC's properties are located ("concerned barangays") relative to the payments made by NPC (Exh. B). On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution No. 12-91 (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold a joint session with the former together with Mayor Corral and the Sangguniang Pambarangays of the concerned barangays, for the purpose of discussing the distribution or application of the NPC payments. On 10 August 1992, respondent Salalima replied that the request cannot be granted as the initial payment amounting to P17,763,000.00 was only an "earnest money" and that the total amount to be collected from NPC was still being validated (Exh. 1). Not satisfied with respondent Salalima's response, Mayor Corral complained to NPC about the Province's failure to remit Tiwi's and the concerned barangays' shares in the payments made by NPC (Exh. 50-C). On 14 August 1992, President Malixi informed respondent Salalima that the representatives of both NPC and the Province have reconciled their accounts and determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20). Due to the brewing misunderstanding between Tiwi and the concerned barangays on the one hand, and the Province on the other, and so as not to be caught in the middle of the controversy, NPC requested a clarification from the Office of the President as to the scope and extent of the shares of local government units in real estate tax collections (Exh. 6 to 6-A). Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5 November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,431.58 or a total of P27,442,364.15 from the general fund to satisfy "prior years" obligations and to implement certain projects of the Province. These resolutions were approved by respondent Salalima on 22 October 1992 and 6 November 1992, respectively. On 3 December 1992, the Office of the President through Chief Presidential Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province merely recognized and established NPC's tax liability. He further clarified that the sharing scheme and those entitled to the payments to be made by NPC under the MOA should be that provided under the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit such share directly to Tiwi. The pertinent portion of Chief Presidential Legal Counsel Carpio's letter dated 3 December 1992 (Exhs. H to H-1) addressed to President Malixi reads: The Memorandum of Agreement entered into by the Province of Albay and NPC merely enunciates the tax liability of NPC. The Memorandum of Agreement does not provide for the manner of payment of NPC's liability. Thus, the manner of payment as provided for by law shall govern. In any event, the Memorandum of Agreement cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi. The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only establishes the liability of NPC for real property taxes but does not specifically provide that said back taxes be paid exclusively to Albay province. Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi the real property taxes accruing to the same. Please be guided accordingly.

11

Very truly yours, (Sgd.) ANTONIO T. CARPIO Chief Presidential Legal Counsel Because of this opinion, President Malixi, through a letter dated 9 December 1992 (Exh. I to I-1), informed Mayor Corral and respondent Salalima that starting with the January 1993 installment, NPC will directly pay Tiwi its share in the payments under the MOA. He also invited the parties to a clarificatory meeting on 17 December 1992 at his Quezon City office to discuss the matter in detail. Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as respondent Salalima was indisposed. President Malixi then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments already made by NPC under the MOA and the computation and the distribution of shares. As of 9 December 1992, payments made by NPC to the Province reached P40,724,471.74, broken down as follows: Payment Dates Amount July 29, 1992 P 17,763,000.00 Sept. 3, 1992 4,660,255.80 Oct. 5, 1992 6,820,480.02 Nov. 5, 1992 5,740,367.96 Dec. 9, 1992 5,740,367.96 Total P 40,724,471.74 On 19 December 1992, in an apparent reaction to NPC's decision to directly remit to Tiwi its share in the payments made and still to be made pursuant to the MOA, the Albay Sangguniang Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1), which, among others: authorized the Provincial Treasurer upon the direction of the Provincial Governor to sell the real properties (acquired by the Province at the auction sale) at a public auction, and to cause the immediate transfer thereof to the winning bidder; and declared as forfeited in favor of the Province, all the payments already made by NPC under the MOA. Realizing from the actuations of the respondents that Tiwi's share in the P40,724,471.74 payments already made by NPC will not be forthcoming, Mayor Corral filed the present complaint with the Office of the President on 25 January 1993. In determining whether the respondents are guilty of the charges against them, the threshold issue of whether the payments to be made by NPC under the MOA should accrue solely and exclusively in favor of the Province, must first be resolved. Sections 38, 39, 41, 86 and 87 of PD No. 464, as amended, prescribe the authority of local government units to levy real property tax as well as the sharing scheme among local government units including the national government with respect thereto. Said provisions read: Sec. 38. Incidence of Real Property Tax. There shall be levied, assessed, and collected in all provinces, cities and municipalities an annual ad valorem tax on real property, such as land, buildings, machinery and the improvements affixed or attached to real property not hereinafter specifically exempted.

12

Sec. 39. Rates of Levy. The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities as follows: (1) In the case of a province, the tax shall be fixed by ordinance of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property; (2) In the case of a city, the tax shall be fixed by ordinance of the municipal board or city council at the rate of not less than one-half of one percent but not more than two percent of the assessed value of real property; and (3) In the case of a municipality, the tax shall be fixed by ordinance of the municipal council subject to the approval of the provincial board at the rate of not less than one-fourth of one percent but not more than onehalf of one percent of the assessed value of real property. Sec. 41. An additional one percent tax on real property for the Special Education Fund. There is hereby imposed an annual tax of one percent on real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; Provided, That real property granted exemption under Section 40 of this code shall also be exempt from the imposition accruing to the Special Education Fund. (as amended by PD No. 1913). Sec. 86. Distribution of proceeds. (a) The proceeds of the real property tax, except as otherwise provided in this Code, shall accrue to the province, city or municipality where the property subject to the tax is situated and shall be applied by the respective local government unit for its own use and benefit. (b) Barrio shares in real property tax collections. The annual shares of the barrios in real property tax collections shall be as follows: (1) Five percent of the real property tax collections of the province and another five percent of the collections of the municipality shall accrue to the barrio where the property subject to the tax is situated. (2) In the case of the city, ten percent of the collections of the tax shall likewise accrue to the barrio where the property is situated. Sec. 87. Application of proceeds. (a) The proceeds of the real property tax pertaining to the city and to the municipality shall accrue entirely to their respective general funds. In the case of the province, one-fourth thereof shall accrue to its road and bridge fund and remaining three-fourths of its general fund. (b) The entire proceeds of the additional one percent real property tax Levied for the Special Education Fund created under R.A. No. 6447 collected in the province or city on real property situated in their respective territorial jurisdictions shall be distributed as follows: (1) Collections in the provinces: Fifty-five percent shall accrue to the municipality where the property subject to the tax is situated; twenty-five percent shall accrue to the province; and twenty percent shall be remitted to the Treasurer of the Philippines. (as amended by PD No. 1969). (c) The proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof, shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes had been paid in regular course. The foregoing provisions clearly show that local government units may levy and collect real property tax ranging from a low of one-fourth of one percent (0.25%) to a high of two percent (2.0%) of the assessed value of real property depending on the local government unit levying the same. It is likewise clear that a province, a municipality and a city may each separately levy said tax on real property located within their respective jurisdictions but not exceeding the rates prescribed under Sec. 39 of PD No. 464.

13

And apart from said basic tax; the law authorizes the collection of an additional tax equivalent to one percent (1.0%) of the assessed value of the real property to accrue to the Special Education Fund (SEF). In accordance with the authority confirmed upon them by PD No. 464, the following tax resolutions or ordinances were passed: By the province Resolution No. 30, series of 1974, of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4 whose Section 1, provides: There shall be levied, assessed and collected an annual ad valorem tax on real properties including improvements thereon equivalent to one-half of one percent of the assessed value of real property. By the Municipality of Tiwi Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides: That the tax rate of real property shall be one-half of one percent of the assessed value of real property. By the Municipality of Daraga Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides: Rates of Levy The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50-G; Emphasis supplied). Applying said rates of levy, the real property taxes collectible from the NPC are: 1. A basic tax of 1%, levied by the Province (0.5%) and Tiwi (0.5%) on the one hand; and the Province (0.5%) and Daraga (0.5%) on the other; and 2. The additional 1% tax pertaining to the SEF. or a total of 2.0% on the assessed value of NPC's real properties. On the other hand, sharing on said taxes, shall be as follows: 1. On the basic tax: Province 47.5% Municipality 47.5% Barangay 5.0% Total 100.0% 2. On the additional tax pertaining to the SEF: Province 25.0% Municipality 55.0% National Government 20.0%

14

Total 100.0% In real terms, the P40,724,471.74 in payments earlier made by NPC should be shared by the Province, Tiwi and Daraga, the concerned barangays and the national government, as follows: Province Municipalities Barangay Natl. Govt. Basic Tax P 9,672,062.04 9,672,062.04 1,018,111.79 none SEF 4,072,447.18 10,181,117.93 none 6,108,670.76 Total P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76 =========== ========== ========= ========= This shows that the Province is entitled only to P13,744,509.21 of the P40,724,471.74 aggregate payments by NPC. On the other hand, the balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned barangays and the national government. The Province maintains, however, that considering that it acquired ownership over the properties of NPC subject matter of the auction, all the payments to be made by NPC under the MOA should accrue exclusively to the Province. This is untenable. The law clearly provides that "the proceeds of all the delinquent taxes and penalties as well as the income realized from the . . . disposition of real property acquired by the province or city at a public auction . . ., and the sale of delinquent property or the redemption thereof shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes have been paid in the regular course" (Sec. 87(c) supra.). It is immaterial that the Province was the highest bidder and eventually became the owner of the properties sold at the auction sale. What is essential is that the proceeds of the re-sale of said properties acquired by the Province, be distributed in the same manner and proportion among the rightful beneficiaries thereof as provided by law. This was the import and essence of Chief Presidential Legal Counsel Carpio's opinion when he stated that the sharing scheme provided by law cannot be amended by a mere agreement between the taxpayer, in this case NPC, and the collecting authority, in this instance, the Province of Albay. Likewise, it is axiomatic that while "contracting parties may establish stipulations, clauses, terms and conditions as they may deem convenient", they may not do so if these are "contrary to law, morals, good customs, public order or public policy" (Art 1306, New Civil Code.). Also relevant to the discussion are the following provisions of the Local Government Code of 1991: Sec. 307. Remittance of Government Monies to the Local Treasury. Officers of local government authorized to receive and collect monies arising from taxes, revenues, or receipts of any kind shall remit the full amount received and collected to the treasury of such Local government unit which shall be credited to the particular account or accounts to which the monies in question properly belong. Sec. 308. Local Funds. Every local government unit shall maintain a General Fund which shall be used to account for such monies and resources as may be received by and disbursed from the local treasury. The

15

General Fund shall consist of monies and resources of the local government which are available for the payment of expenditures, obligations or purposes not specifically declared by law as accruing and chargeable to, or payable from any other fund. Sec. 309. Special Funds. There shall be maintained in every provincial, city, or municipal treasury the following special funds: (a) Special Education Fund (SEF) shall consist of the respective shares of provinces, cities, municipalities and barangays in the proceeds of the additional tax on real property to be appropriated for purposes prescribed in Section 272 of this Code; and (b) Trust Funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the Local government unit. (Emphasis supplied). These provisions are restatements of Sec. 3(4) and (5) of PD No. 1445 and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise known as the "Administrative Code of 1987." It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as amended). Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations. However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law. Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAG) of the Commission on Audit (COA) further support our findings, thus Part II. Findings and Observations The audit findings, which are discussed in detail in the attached report, are summarized below: 1. The remittances of the NPC of the P40,724,471.74 from July to December 1992 representing partial payments of real tax delinquencies from June 22, 1984 to March 10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the concerned barangays and the National Government in violation of PD 464. The Memorandum of Agreement entered into between the Province of Albay and Napocor cannot amend the provisions of PD 464 which specifies the sharing scheme of the real property tax among the province, city or municipality where the property subject to tax is situated and the National Government. 2. The collection of P40,724,471.74 was fully treated as surplus adjustment (Account 7-92-419) being prior years income, without creating a trust liability for the municipality and barangays concerned and national government. As of December 31, 1992, the balance of the account was only P25,668,653.12 thus, stressing that P15,255,818.62 was spent. . . . Under the General Fund, cash available was only P4,921,353.44 leaving practically no cash to answer for the shares of the Municipalities of Tiwi and Daraga and their barangays where the properties are located. (pp. 4 and 16; (Emphasis supplied).

16

As pointed our earlier, the Province was entitled only to P13,744,509.21 of the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate and disburse P13,744,509.21. Any disbursements exceeding this amount would therefore be illegal. This Committee particularly notes the factual finding of COA that as of 31 December 1992, the actual cash balance of the Province's general fund was only P4,921,353.44. This means that of the P40,724,471.74 actually paid by the NPC and lodged in the Province's general fund, P35,803,118.30 was disbursed or spent by the Province. This exceeds the P13,744,509.21 share of the Province by P22,058,609.09. The foregoing may be illustrated as follows: NPC Payments received by the Province P40,724,471.74 Less Actual Cash Balance general fund as of 12-31-92 4,921,353.44 P35,803,118.30 =========== Less Share of the Province 13,744,509.21 Amount Illegally Disbursed by the Province P22,058,609.09

We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as forfeited in favor of the Province the entire amount of P40,724,471.74 paid by NPC to be patently illegal as it unlawfully deprives Tiwi and Daraga, the barangays concerned, and the national government of their rightful shares in said payments. Being illegal, said ordinance may not be used or relied upon by the respondents to justify the disbursements of funds in excess of their share.

Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements considering that the appropriations made thereunder totalling P27,442,364.51 are to be funded by the P40,724,471.74 "surplus adjustment" that includes the "trust funds" not belonging to the Province. Even assuring that Resolution No. 178-92 authorizing the expenditure of P9,778,912.57 were to be taken from the Province's share amounting to P13,744,509.21, the rest of the disbursements still have no legal basis. Clearly, this is violative of the fundamental rule that "(n)o money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law" (par [a], Sec. 305, Republic Act No. 7160). Respondents raise the common defense that the findings obtained in SAO Report No. 93-11 are not yet final as they have filed an appeal therefrom. It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries. Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

17

Respondents' contention that COA's factual findings, contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative or criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court. Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts. Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report, 93-11 to enable this Committee to evaluate the merits of the instant complaint. We also reject respondent Azaa's defense that since he did not participate in the deliberation and passage of Resolution No. 09-92, merely signing the same as presiding officer of the Sangguniang Panlalawigan, and only certifying that the same had been passed, he did not incur any administrative liability. The fact remains that as presiding officer of the Sangguniang Panlalawigan and being the second highest official of the Province, respondent Azaa is jointly responsible with other provincial officials in the administration of fiscal and financial transactions of the Province. As presiding officer of the Sangguniang Panlalawigan, respondent Azaa has a duty to see to it that resolutions or ordinances passed are within the bounds of the law. He cannot merely preside over the sessions of the Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or ordinances being proposed or deliberated upon by his colleagues. This collective responsibility is provided under Secs. 304 and 305 of Republic Act. No. 7160, thus, Sec. 304. Scope. This Title shall govern the conduct and management of financial affairs, transactions and operations of provinces, cities, municipalities, and barangays. Sec. 305. Fundamental Principles. The financial affairs, transactions, and operations of local government units shall be governed by the following fundamental principles: (1) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of local government units; and It cannot be denied that the Sangguniang Panlalawigan has control over the Province's "purse" as it may approve or not resolutions or ordinances generating revenue or imposing taxes all well as appropriating and authorizing the disbursement of funds to meet operational requirements or for the prosecution of projects. Being entrusted with such responsibility, the provincial governor, vice-governor and the members of the Sangguniang Panlalawigan, must always be guided by the so-called "fundamental" principles enunciated under the Local Government Code, i.e., "No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; local revenue is generated only from sources authorized by law or ordinance and collection thereof shall at all times be acknowledged properly; all monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; and trust funds in the local treasury shall not be paid out except in fulfillment of the purposes for which the trust was created or the funds received" (Sec. 305, R.A. 7160). All the respondents could not claim ignorance of the law especially with respect to the provisions of PD No. 464 that lay down the sharing scheme among local government units concerned and the national government, for both the basic real property tax and additional tax pertaining to the Special Education Fund. Nor can they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC considering that the Province is only entitled to a portion thereof and that the balance was merely being held in trust for the other beneficiaries. As a public officer, respondent Azaa (and the other respondents as well) has a duty to protect the interests not only of the Province but also of the municipalities of Tiwi and Daraga and even the national government. When the passage of an illegal or unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act accordingly, but actively opposing the same by temporarily relinquishing his chair and

18

participating in the deliberations. If his colleagues insist on its passage, he should make known his opposition thereto by placing the same on record. No evidence or any sort was shown in this regard by respondent Azaa. Clearly, all the respondents have, whether by act or omission, denied the other beneficiaries of their rightful shares in the tax delinquency payments made by the NPC and caused the illegal forfeiture, appropriation and disbursement of funds not belonging to the Province, through the passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-92. The foregoing factual setting shows a wanton disregard of law on the part of the respondents tantamount to abuse of authority. Moreover, the illegal disbursements made can qualify as technical malversation. This Committee, thus, finds all the respondents guilty of abuse of authority, and acccordingly, recommends the imposition of the following penalties of suspension without pay: a. Respondent Salalima five (5) months; and b. All the other respondents four (4) months each.

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaa, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint was docketed as OP Case No. 5469. The antecedent facts are as follows. Because of the refusal by the National Power Corporation ("NPC") to pay real property taxes assessed by the Province of Albay ("the Province") covering the period from 11 June 1984 up to 10 March 1987 amounting to P214,845,184.76, the Province sold at public auction the properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale. As NPC failed to redeem its properties sold at the auction, the Province petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of possession over the same. Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed as G.R. No. 87479, questioning the validity of the auction sale conducted by the Province. NPC claims, inter alia, that its properties are not subject to real property tax. On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed it; comment on the NPC petition with the Supreme Court. On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 (Exhs. B to B-1) authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC. On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479. The entry of appearance of Atty. Cornago bore the conformity of respondent Governor.

19

On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth the conditions of the retainer agreement, thus: As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 million, payable to us in the event that we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also. On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 (Exhs. C to C-1) authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm.

Respondent Salalima signed the retainer agreement.

On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the province to answer for NPC's tax liabilities.

Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-1) were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago: Particulars Claimant/Payee Amount Disbursement Cortes & Reyna P 60,508.75 Voucher (DV No. 4, Jan. 8, 1990 Check No. 931019 DV No. 1889 Atty. Antonio Jose Cortes P 1,421,040.00 Aug. 13, 1992; Check No. 236063-S DV No. 1890 Atty. Jesus R. Cornago P 1,736,300.00 Aug. 13, 1992; Check No. 236064-S DV No. 2151 Atty. Antonio Jose Cortes P 838,851.44 Sept. 28, 1992; Check No. 238174-S DV No. 2226 Atty. Antonio Jose Cortes P 886,662.40 Oct. 8, 1992; Check No. 239528-S

20

DV No. 2227 Atty. Jesus R. Cornago P 341,024.00 Oct. 8, 1992; Check No. 239529-S DV No. 2474 Atty. Jesus R. Cornago P 287,018.40 Nov. 6, 1992; Check No. 250933 DV No. 2475 Atty. Antonio Jose Cortes P 746,247.83 Dec. 9, 1992; Check No. 253163 DV No. 2751 Atty. Antonio Jose Cortes P 747,247.84 Dec. 9, 1992; Check No. 253163 DV No. 2752 Atty. Jesus R. Cornago P 267,018.40 Dec. 9, 1992; Check No. 253164 TOTAL P 7,380,410.31

Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaa. The rest were approved by respondent Governor. In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent Governor that payments made by the Province as attorney's fees amounting to P7,380,410.31 have been disallowed by the Commission on Audit (COA) with the following notation: The disbursement vouchers detailed hereunder represent payments for attorney's fees of Cortes & Reyna Law Office for Legal services rendered re: G.R. No. 87479 "NAPOCOR, Petitioner vs. The Province of Albay, et al., Respondent," Supreme Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the requisite "prior written conformity and acquiescence of the Solicitor General . . . as well as the written concurrence of the Commission on Audit" as provided for and required under COA Circular No. 86-255 dated April 2, 1986, re: "Inhibition against employment by government: agencies and instrumentalities . . . of private lawyers to handle their legal cases," viz. The complaint alleges that by entering into the retainer agreement with private lawyers and paying P7,380,410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorney's fees. The sole issue in this case is whether or not respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the province.

21

We find merit in the complaint and hold that under the circumstances surrounding the transaction in question, the respondents abused their authority. Sec. 481 of the Local Government Code (RA. No. 7160) requires the appointment of a legal officer for the province whose functions include the following: Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party. The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93 Phil 173 (1953), that local governments [sic] units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus: Under the law, the Provincial Fiscal of Bulacan and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions . . . It would seem clear that the Provincial Fiscal is the only counsel who can rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers hired by the Province of Bulacan] have no standing in the case. The appeal herein interposed in behalf of the plaintiffs cannot therefore be maintained. This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case of Municipality of Bocaue, et al. v. Manotok. In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court. Moreover, the entire transaction was attended by irregularities. First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-255 dated 2 April 1986. The respondents attempted to dispute this finding by presenting the Solicitor General's conformity dated 15 July 3993. This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 85-255 is a prior written conformity and acquiescence of the Solicitor General. Another irregularity in the transaction concerns the lawyers. Resolution No. 01-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retainer contract itself: As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also. Very truly yours, CORTES & REYNA

22

LAW FIRM -and- Atty. JESUS R. CORNAGO Jamecca Building 280 Tomas Morato Avenue by: (Sgd.) ANTONIO JOSE F. CORTES

With my conformity: (Sgd) GOV. ROMEO R. SALALIMA Province of Albay In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90. Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case (G R. No. 87479). We quote the entry of appearance of Atty. Cornago in full in said case: APPEARANCE COMES NOW, the undersigned counsel, and to this Honorable Supreme Court, respectfully enters his appearance as counsel for the respondents in the above-entitled case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the respondents. This appearance bears the conformity of the respondent Gov. Romeo R. Salalima, as shown by his signature appearing at the space indicated below. In this connection, it is respectfully requested that, henceforth, the undersigned counsel be furnished with a copy of all notices, orders, resolutions and other matters that may be issued in this case at its office address indicated below. Quezon City, for Manila, August 24, 1989. (Sgd.) JESUS R. CORNAGO Counsel for Respondents 280 Tomas Morato Avenue, Quezon City PTR No. 561005-'89 Mandaluyong IBP No. 279351-'89 Pasig, MM With my conformity: (Sgd) ROMEO R. SALALIMA Respondent Office of the Governor of Albay, Legaspi City

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

23

Incidentally, a check with our office records of the case G.R. No. 87479 reveals that the Province of Albay and its officials named respondents therein were represented in the Supreme Court by Atty. Romulo Ricafort the Province's Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance was entered therein by the Cortes & Reyna Law Firm. (Emphasis supplied.) Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479. Finally, the attorney's fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable. The contingent fee of 18% of the "P214 million" claim of the Province against NPC amounts to P38.5 million. The word "unconscionable", as applied to attorney's fee, "means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him." (Moran, Comments on the Rules of Court, Vol. 6, p. 236.) The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC's petition against the Province. The comment filed by Atty. Ricafort already covers the basic issues raised in the petition. When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million. Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College, thus: SECRETARY CORONA: May I ask a question Governor, what was your basis for choosing this particular law office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this particular Law office? Frankly, I never heard of this law office. Who recommended it? GOVERNOR SALALIMA: Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda. SECRETARY CORONA: Were you classmates? GOVERNOR SALALIMA: No. SECRETARY CORONA: How many years apart were you? GOVERNOR SALALIMA: Two (2) years. SECRETARY CORONA: So, you knew each other from the law school?

24

GOVERNOR SALALIMA: Yes. SECRETARY CORONA: Were you members of the same fraternity in San Beda? GOVERNOR SALALIMA: Yes. It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record. Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney's fee of P38.5 million is unconscionable. By allowing such scandalously exorbitant attorney's fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority. Parenthetically, the retainer contract containing such exorbitant attorney's fees may also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985) prohibiting irregular, unnecessary, excessive or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Finally, the Committee again applies in this case, as was applied in OP Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305 (1) of the Local Government Code. In view of the foregoing, the Committee holds that respondents committed abuse of authority under Sec. 60(e) of the Local Government Code for the following: 1. Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to handle the case of the Province of Albay before the Supreme Court in G.R. No. 87479; 2. Disbursing public money in violation of COA rules and regulations; 3. Paying the Cortes & Reyna Law Firm public money although it was only Atty. Cornago who was the counsel of record of the Province of Albay in the Supreme Court case; 4. Authorizing an unconscionable and grossly disadvantageous attorney's fees of P38.5 million; and 5. Additionally, as to respondent Governor, entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his authority under Resolution No. 01-90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the Committee recommends that the following penalties of suspensions without pay be meted out: a. Respondent Salalima six (6) months; and Azaa each; and b. All the other respondents four (4) months each. III. OP Case No. 5471 This refers to the administrative complaint filed by the Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus

25

Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor Rodolfo Benibe for "abuse of authority and oppression" under Sec. 60 (c) and (e) of RA No. 7160. The antecedent facts are as follows: On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang Bayan charged herein respondent Governor Salalima and Vice-Governor Azaa for abuse of authority, misconduct in office and oppression. This administrative complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-893), arose from the refusal of said respondents to remit Tiwi's share in the P40,724,471.74 tax delinquency payments made by NPC. This case was subsequently substituted by OP Case No. 5470 filed on 25 January 1993 which now included as respondents Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana, Fernandez, Fontanilla, and Rontas. Subsequently, Mayor Corral became the subject of several administrative and criminal complaints filed by certain individuals with the following offices: a. Achilles Berces v. Mayor Naomi Corral (1) Albay Sangguniang Panlalawigan, Adm. Case No. 02-92 (2) Albay Sangguniang Panlalawigan, Adm. Case No. 05-92 (3) Office of the Ombudsman, OMB Adm. Case No. 1930163 (4) Office of the Ombudsman, OMB Case No. 0930682 (5) Office of the Ombudsman, OMB-092-3008 b. Muriel Cortezano v. Mayor Naomi Corral (6) Albay Sangguniang Panlalawigan, Adm. Case No. 10-93 (7) Office of the Ombudsman, OMB-0-92-3000 c. Amelia Catorce v. Mayor Naomi Corral (8) Albay Sangguniang Panlalawigan, Adm. Case No. 09-93 d. Aida Marfil v. Mayor Naomi Corral (9) Albay Sangguniang Panlalawigan, Adm. Case No. 07-93 (10) Office of the Ombudsman, OMB Case No. 5-93-0110 e. Rodolfo Belbis v. Mayor Naomi Corral (11) Albay Sangguniang Panlalawigan, Adm. Case No. 06-93 (12) Office of the Ombudsman, OMB Case No. 0-93-0098 f. Kin. Juan Victoria, et al. v. Mayor Naomi Corral (13) Office of the Prosecutor, I.S. No. 93-046 (for Libel), Legaspi City g. Governor Romeo Salalima, et al. v. Mayor Naomi Corral (14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi City

26

(15) Office of the Prosecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi City or a total of fifteen (15) cases. On 7 January 1993, the respondent-members of the Sangguniang Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor Corral be placed under preventive suspension for sixty (60) days pending the resolution of Adm. Case No. 05-92 (Exh. 18). On 11 January 1993, respondent Salalima approved said resolution and, on the same date, officially directed herein respondent Tiwi Vice-Mayor Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh. 18). On 21 January 1993, Department of the Interior and Local Government (DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993 suspension order issued by respondent Salalima. In his letter to Mayor Corral (Exh. C), he stated, thus: Considering that the preventive suspension imposed upon you by Governor Romeo R. Salalima of that province, was issued after the latter's refusal to accept your answer, therefore, the issuance of subject order of preventive suspension is premature, the issues having not been joined. In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by Governor Salalima, is hereby lifted. On 26 January 1993, the Office of the President (OP), acting in OP Case No. 4982, after finding that "the evidence of guilt is strong, and given the gravity of the offense and the great probability that the continuance in office of respondent Governor Romeo R. Salalima would influence the witnesses or pose a threat to the safety and integrity of the records and other evidence," placed respondent Salalima under preventive suspension for sixty (60) days (Exhs. D to D-2). Respondent Salalima subsequently sought the reversal of the OP Order dated 26 January 1993 but the same was dismissed by the Supreme Court on 26 May 1993 in the case entitled "Salalima v. the Hon. Executive Secretary," G.R. No. 108585 (Exh. E). On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents from hearing the six cases filed against her with the Sangguniang Panlalawigan (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93 and 10-93) asserting her constitutional right to due process of law. This motion was however denied with the respondentmembers of the Sangguniang Panlalawigan assuming jurisdiction over the cases. After conducting marathon hearings, respondent-members of the Sangguniang Panlalawigan rendered judgments against Mayor Corral and imposing, among others, the following penalties of suspension: 1. In Adm. Case No. 02-92 suspension for two (2) months (see Decision dated 1 July 1993, [Exhs. F to F-2]); 2. In Adm Case No. 05-92 suspension for three (3) months (see Resolution dated 5 July 1993, [Exhs. G to 62]); 3. In Adm Case No. 06-93 and 07-93 suspension for one (1) month (see Resolution dated 8 July 1993, [Exhs. H to H-3]); and 4. In Adm Case No. 10-93 suspension for the period of unexpired term (see Resolution dated 9 July 1993, [Exhs. I to I-21). On 22 July 1993, respondent Salalima issued a directive addressed to the Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial Assessor, Provincial Accountant, Provincial Budget Officer, Provincial DILG Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining them to assist in the implementation of the decisions suspending Mayor Corral "by decreeing directives to your subordinate officials in Tiwi, Albay to strictly adhere thereto."

27

Subsequently, Mayor Corral interposed appeals from the decisions of respondent-members of the Sangguniang Panlalawigan suspending her from office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer that the implementation of said decisions be stayed. On 28 July 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to 5-2). Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K to K-1). Also, with respect to Adm. Case Nos. 6-93 and 7-93, the Civil Service Commission (CSC) issued Resolution Nos. 93-005 (dated 5 January 1993) and 92-817 (dated 4 March 1993), which provided the bases and justifications for the acts of Mayor Corral complained of in these two (2) cases. The Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2). In the multiple charges for libel and perjury against Mayor Corral, arising from her complaint in OP Case No. 5470, filed with the Regional Trial Court of Legaspi City, the Supreme Court ordered the lower court to cease and desist from proceeding with the case in a resolution dated 16 September 1993 (Exhs. Q to Q-2). In determining whether respondents are guilty of the charges levelled against them, the following issue has to be resolved, i.e., whether the conduct of the proceedings in the administrative cases filed and the series of suspension orders imposed by the respondent-members of the Sangguniang Panlalawigan on Mayor Corral constitute oppression and abuse of authority? Oppression" has been defined as an "act of cruelty, severity, unlawful exaction, domination or excessive use of authority." (Ochate v. Ty Deling, L-13298, March 30, 1959, 105 Phil. 384, 390.). "Abuse" means "to make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one's authority" (Black's Law Dictionary <5th Ed.>, 11). It includes "misuse" (City of Baltimore v. Cornellsville & S.P. Ry, Co. 6 Phils. 190, 191, 3 Pitt 20, 23). Moreover, Section 63(d) of RA No. 7160 expressly states that, "[a]ny abuse of the exercise of the powers of preventive suspension shall be penalized as abuse of authority." Now, does the above narration of facts show commission by respondents of the administrative offenses complained of? A review of the proceedings reveal that the same were marked by haste and arbitrariness. This was evident from the start when Mayor Corral was preventively suspended (in Adm. Case No. 05-92) even before she could file her answer. In the other cases, respondent-members of Sangguniang Panlalawigan ruled that Mayor Corral had waived her right to adduce evidence in her defense. Consequently, respondents did not also fully evaluate the evidences presented to support the charges made. As such, all the decisions of respondents suspending Mayor Corral were ordered lifted suspended by the DILG and OP. Thus, even the cases filed with the Office of the Ombudsman, which were based on the same incidents complained of in the said administrative cases, were subsequently dismissed. Respondents should have inhibited themselves from assuming jurisdiction over said cases (Adm Case Nos. 0292, O6-92, 06-93, 07-93, 09-93, and 10-93) as timely moved by Mayor Corral considering that they were the respondents in various administrative complaints she earlier filed with the OP and with the DILG starting with OP Case No. 4892. However, despite the violation of due process resulting from their collective acts, respondents, in their determination and eagerness to suspend and harass Mayor Corral, proceeded to hear and decide said cases. The OP has no jurisdiction over administrative complaints filed against elective municipal officials. Under Sec. 61(b) of RA No. 7160, "[a] complaint against any elective official of a municipality shall be filed before the Sangguniang Panlalawigan whose decision may be appealed to the Office of the President."

28

WHEREFORE, the charges against Vice Mayor Benibe are dismissed. However, all the other respondents herein are found guilty of oppression and abuse of authority under Section 60 (c) and (e) of RA No. 7160. Accordingly, it is recommended that each of them be meted the penalty of four (4) months suspension without pay. IV. OP Case No. 5450. This refers to the administrative charges filed by Tabaco Mayor Antonio Demetriou against Governor Romeo Salalima for violation of Section 60, pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of Republic Act No. 3019, and the provisions of PD No. 1594, as amended. This case was filed with the Office of the President (OP) on 18 October 1993 and docketed as OP Case No. 5450. The facts as found by this Committee are as follows: On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh. A, par. 1). On 26 September 1990, the OP advised Mayor Demetriou and respondent Salalima that the P12.0 Million in Budgetary Assistance to Local (Government Units (BALGU) funds earlier remitted by the national government to the Province, should be used for the rehabilitation of the Tabaco Public Market, and that the project should be implemented by the Provincial Governor in consultation with the Mayor of Tabaco (Exh.. 37). On 8 May 1991, a public bidding was conducted by the Albay Provincial Government for the repair and rehabilitation of the Tabaco Public Market (Exh. A, par. 1) On 29 May 1991, the Province represented by respondent Salalima and RYU Construction entered into a contract for P6,783,737.59 for said repair and rehabilitation (Exh. H). Among others, the contract stipulated that the contracted work should be completed in 150 days. The contractor started the project on 1 July 1991 and completed the same on 2 June 1992 (Exh. 41). On 6 March 1992, the Province represented by respondent Salalima entered into another contract (Exh. I) for P4,304,474.00 with RYU Construction for additional repair and rehabilitation works for the Tabaco Public Market. The terms and conditions of this contract are the same as those stipulated in the 29 May 1991 contract except for the construction period which is only for 90 days. Construction of the second project commenced on 27 March 1992 and was completed on 2 June 1992 (Exh. 42). In his complaint, Mayor Demetriou alleged that despite the delay in the completion of work under the first contract, liquidated damages were not imposed on, nor collected from, RYU Construction by the Province. Moreover, he claims that the second contract with RYU Construction was entered into in violation of PD No. 1594 as RYU incurred delay with respect to the first contract. We find merit in the complaint: Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item IB of the Implementing Rules and Regulations (IRR) of PD No. 1594, as amended, read: CI 3 LIQUIDATED DAMAGES. 1. Where the contractor refuses or fails to satisfactorily complete the work within the specified contract time, plus any time extension duly granted and is hereby in default under the contract, the contractor shall pay the Government for Liquidated damages, and not by way of penalty, an amount to be determined in accordance with the following formula for each calendar day of delay, until the work is completed and accepted or taken over by the Government: 2. To be entitled to such Liquidated, damages, the Government does not have to prove that it has incurred actual damages. Such amount shall be deducted from any money due or which may become due the contractor under

29

the contract and/or collect such Liquidated damages from the retention money or other securities posted the contractor whichever is convenient to the Government. CI Extension of Contract time. 1. Should the amount of additional work of any kind or other special circumstances of any kind whatsoever occur such as to fairly entitle the contractor to an extension of contract time, the Government shall determine the amount of such extension; provided that the Government is not bound to take into account any claim for an extension of time unless the contractor has prior to the expiration of the contract time and within thirty (30) calendar days after such work has been commenced or after the circumstances leading to such claim have arisen, delivered to the Government notices in order that it could have investigated them at that time. Failure to provide such notice shall constitute a waiver by the contractor of any claim. Upon receipt of full and detailed particulars, the Government shall examine the facts and extend of the delay and shall extend the contract title for completing the contract work when, in the Government's opinion, the finding of facts justify an extension. IB 10.4.2 By Negotiated Contract 1. Negotiated contract may be entered into only where any of the exists and the implementing following conditions office/agency/corporation is not capable of undertaking the project by administration: c Where the subject project is adjacent or contiguous to an ongoing project and it could be economical prosecuted by the same contractor, in which case, direct negotiation may be undertaken with the said contractor at the same unit prices adjusted to price levels prevailing at the time of negotiation using parametric formulae herein prescribed without the 5% deduction and contract conditions, less mobilization cost, provided that he has no negative slippage and has demonstrated a satisfactory performance. (Emphasis supplied). A reading of items CI 8 and CI 11 above shows that the collection of liquidated damages is mandatory in cases of delay unless there are valid orders of extension of contract work given by the Government. Under the 29 May 1991 contract, the repair works should have been completed on 26 December 1991 since the project was started on 1 July. But then the project was finished only on 2 June 1992. This is confirmed by the COA through CAO Report No. 93-11 (Exh. N), thus . . . The project was completed only on June 2, 1992 or a delay of 132 working days, as shown in the following tabulation: Billing As of Days Lapsed % Accomplished First Dec. 2, 1991 130 26.48 Second Jan. 8, 1992 187 53.19 Third Feb. 10, 1992 100 75.23 Final June 2, 1992 202 100.00. In view of the delays in project completion the Team requested from the Provincial Engineer any copy of the order suspending and resuming the work (suspension and resume order) since the same was not, attached to the claims of the contractor or paid vouchers. Unfortunately the Provincial Engineer could not provide said document at the Engineering Office had not issued any. In effect. there was no basis for the extension of contract time and the contractor should have been considered as behind schedule in the performance of the contract. Despite its deficiency, no liquidated damages was ever imposed against the contractor. (pp. 25-26) [emphasis supplied] Respondent Salalima failed to submit an evidence concerning any order issued by the Provincial Government extending RYU Construction's contract.

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The law requires that requests for contract extension as well as the orders granting the same must be made and given prior to the expiration of the contract. The rationale for this requirement is obviously to prevent a contractor from justifying any "delay" after the contract expires. Before signing the 6 March 1992 contract, which was entered into on a negotiated basis and not through bidding, respondent Salalima should have inquired whether or not RYU Construction incurred negative slippage. Had he done so, the matter of imposing and collecting liquidated damages would have been given appropriate attention. This is aggravated by the fact that respondent knew that RYU Construction was the contractor for the original rehabilitation and repair work for the Tabaco Public market being the signatory to the first contract. Clearly, therefore, there was a failure on the part of the Province to impose and collect liquidated damages from the erring contractor, RYU Construction. Going to the second charge, we find that respondent Salalima unmistakably violated the provision of PD No. 1594, as amended. Fundamental is the rule that government contracts especially infrastructure contracts are awarded only through bidding. As explicitly ordained by Sec. 4 of PD No. 1594, construction projects shall generally be undertaken by contract after "competitive bidding". By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. At the same time, bidding seeks to prevent or curtail favoritism, fraud and corruption in the award of the contract which otherwise might prevail were the government official concerned is vested with the full or absolute authority to select the prospective contractor (Fernandez, Treatise on Government Contracts Under Philippine Law, 1991 Ed. citing Caltex Phil., Inc. v. Delgado Bros. 96 Phil. 368; San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v. Hernandez, 66 Phil. 68). This is precisely the reason why negotiated contracts can be resorted to only in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR' of PD No. 1594, supra. However, said proviso requires that the contractor had not incurred negative slippage and has demonstrated a satisfactory performance. And since RYU Construction incurred negative slippage with respect to the repair works under the 29 May 1991 contract as found by COA, it was anomalous for the Province through respondent Salalima to enter into a negotiated contract with said contractor for additional repair and rehabilitation work; for the Tabaco public market. Failing to comply with the requirements of law, the 6 March 1992 contract is clearly irregular, if not illegal. Finally, said contract may also be violative of the following: (a) COA Circular No. 85-55-A (dated 8 September 1985) prohibiting irregular expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Premises considered, this Committee finds the respondent guilty of abuse of authority and gross negligence. Accordingly, it is recommended that the penalty of suspension without pay be meted out on respondents Salalima for five (5) months. (pp. 2-35). The President then concluded and disposed as follows: After a careful review of the cases, I agree with and adopt the findings and recommendations of the Ad-Hoc Committee, supported as they are by the evidence on record. WHEREFORE, the following penalties are meted out on each of the respondents, to wit: In OP Case No. 5470 a. Governor Romeo Salalima suspension without pay for five (5) months; b. Vice-Governor Danilo Azana, Albay Sangguniang Panlalawigan members Juan Victoria, Lorenzo Reyeg, Arturo Osia, CLenio Cabredo, Vicente Go, Sr., Jesus Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas suspension without pay for four (4) months.

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In OP Case No. 5469 a. Governor Romeo Salalima and Vice-Governor Danilo Azaa suspension without pay for six (6) months; and b. Albay Sangguniang members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao suspension without pay for four (4) months; In OP Case No. 5471 a. Governor Romeo Salalima and Albay Sangguniang members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao suspension without pay for four (4) months;. In OP Case No. 5450 a. Governor Romeo Salalima suspension without pay for five (5) months. The suspension imposed on respondents shall be served successively but shall not exceed their respective unexpired terms, in accordance with the limitation imposed under Section 66 (b) of the Local Government Code. It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of its substantive aspect is challenged in this petition. The petitioners mentioned it only in their claim of prematurity of Administrative Order No. 153 in view of their appeal from Special Audit Office (SAO) Report No. 93-11 to the COA en banc. O. P. Case No. 5471 is the administrative complaint, filed by Tiwi Mayor Corral against the petitioners for abuse of authority and oppression in connection with their conduct in the several administrative cases filed by certain individuals against Mayor Corral. It has no logical nexus to the appeal. The decision then in O.P. Case No. 5471 stands unchallenged in this petition. As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may be reformulated in this wise: I. Did the Office of the President act with grave abuse of discretion amounting to lack or excess of jurisdiction in suspending the petitioners for periods ranging from twelve to twenty months? II. Did the Office of the President commit grave abuse of discretion in deciding O.P. cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners' appeal to the COA en banc from Special Audit Office (SAO) Report No. 93-11 and the Certificate of Settlement and Balances (CSB)? III. Did the Office of the President commit grave abuse of discretion in holding the petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its rightful shore in the P40,724,471.74 which the Province of Albay had received from the NPC under the Memorandum of Agreement? IV. Did the Office of the President commit grave abuse of discretion in suspending in O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May 1992, for an alleged administrative offense committed during his first term; and in suspending in O.P. Case No. 5469 the other petitioners, some of whom were elected and others reelected on 11 May 1992, for an alleged administrative offense committed in 1989? V. Did the Office of the President commit grave abuse of discretion in holding the petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section 60 (e) of the Local Government Code of 1991 although they were charged under Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local Government? Code of 1991, thereby depriving them of due process of law? We shall take up these issues in the order they are presented. I. Anent the first issue, the petitioners contend that the challenged administrative order deprived them of their respective offices without procedural and substantive due process. Their suspensions ranging from twelve

32

months to twenty months or for the entire duration of their unexpired term, which was then only seven months, constituted permanent disenfranchisement or removal from office in clear violation of Section 60 of R.A. No. 7160 which mandates that an elective local official may be removed from office by order of the court. The Comment of the Solicitor General is silent on this issue. However, respondents Mayor Corral and newly appointed provincial officials maintain that the suspension imposed upon the petitioners in each of the four cases was within the limits provided for in Section 66(b) of R.A. No. 7160 and that the Aggregate thereof ranging from twelve months to twenty months, but not to exceed the unexpired portion of the petitioners term of office, did not change its nature as to amount to removal. Section 66(b, of R.A. No. 7160 expressly provides: Sec. 66. Form and Notice of Decision. . . . (b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meet the qualifications for the office. This provision sets the limits to the penalty of suspension , viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. An administrative offense means every act or conduct or omission which amounts to, or constitutes, every of the grounds or disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code, which reads: Sec. 60. Grounds for Disciplinary Action. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at Least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; g) Acquisition for, or acquisition of, foreign citizenship or residence or the status ,e an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases are correct, it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners' term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. 2 And this Court is not prepared to rule that the suspension to the petitioners' removal office. 3 II. Petitioners contend that the decisions in O.P. Cases Nos. 5450, 5470, and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with, and pending resolution by, the

33

Commission on Audit En Banc, they are not yet final, conclusive, and executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA Chairman had already reversed the recommendation in the SAO Report No. 93-11 that the Provincial Government of Albay should share with the Municipality of Tiwi the P40,724,471.74 representing payments of the NPC as of December 1992. They then submit that Administrative Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to the COA en banc from SAO Report No. 93-11 and the CSB. This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the Committee explained as follows: It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries. Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, as the very least, as corroborative evidence. Respondents' contention that COA's factual finding, as contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative and criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held it abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court. Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation, of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts. Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report No. 93-11 to enable this Committee to evaluate the merits of the instant complaint. The alleged appeal from the CSB is unclear From the records, and in light of the foregoing statement of the Ad Hoc Committee it is obvious that such appeal was not raised. We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to the investigation and resolution of their administrative cases. It may be further stressed that a special audit has a different purpose in line with the constitutional power, authority, and duty of the COA under Section 2, Subdivision D, Article IX of the Constitution "to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held intrust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters" and its "exclusive authority . . . to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting aid auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." 4 III. As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province of Albay from the NPC represents part of the price paid for properties owned by the province in a corporate capacity and repurchased by the former owner. It constitutes payment of a debt and net of a tax, which debt "arose from. and was a consequence of the Memorandum of agreement dated May 29, 1992." They further contend that the Memorandum of Agreement (MOA) partakes of a deed of sale. And nowhere in the Real Property Tax Code (P.D. No. 464) 5 is there any provision requiring provinces to share with the municipalities the proceeds of a private sale. What are required to be shared are only the collections of real property taxes and Special Education Fund (SBF); proceeds of delinquent taxes and penalties, or of the sale of delinquent real property, or of the redemption thereof; and income realized from the use, lease, or disposition of real property seized by the province.

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It must be recalled that in August 1992, Governor Salalima and NPC President; Pablo Malixi, were already agreed that the basic tax due from the NPC was P207,375,774.72. 6 But later, Malixi informed the former that upon recomputation of the real property tax payable to the Province of Albay at the minimum of one-fourth of one percent pursuant to Section 39(1) of the Real Property Tax Code, the NPC came up with an adjusted figure of P129,609,859.20. 7 Governor Salalima then explained that one percent was applied in the computation for the reconciled figure of P207,375,774.72 because the one-half percent imposed by the respective ordinances of the municipalities where the delinquent properties are located was added to the one-half percent imposed by the tax ordinance of the Province. His reply reads as follows: September 9, 1992 Hon Pablo V. Malixi President, National Power Corporation Diliman, Quezon City. Dear President Malixi: As suggested in your letter of August 31, 1992, we are very pleased to furnish you herewith the certified true copies of the local tax ordinances which served as our basis in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit: (a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4, whose Section I, provides: "There shall be levied, assessed and collected as annual ad valorem tax on real properties including improvements thereon equivalent to one half of one percent, of the assessed value of real property." (b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides: "That the tax rate of real property shall be one-half of one percent of the assessed value of real property." (c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides: "Rates of Levy The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of the real property. These tax ordinances were in pursuance to Sec. 39 (1) (3) of PD 464, the applicable law during the period 1984 to 1987. By adding the one half percent imposed in the tax Ordinance of Tiwi to the one half percent also imposed in the Provincial Tax Ordinance, we have a total of one percent which we used as the rate of levy in computing the basic tax due on the real properties in Tiwi. On the real properties in Daraga, we also added the one-half percent imposed by the Daraga Tax Ordinance to the one-half percent of the Provincial Tax Ordinance. The additional tax of one percent for the Special Educational Fund (SEF) was imposed pursuant to Section 41 of PD 464, which provides as follows: "There is hereby imposed annual tax of one percent on real property to accrue to the Special Educational Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; . . . " We hope that the foregoing clarification will settle whatever doubt there is on why we applied 1% for basic tax and another 1% for SEF in arriving at P207,375,774.72. 8 (emphasis supplied). The petitioners even emphasized in the instant petition that "Governor Salalima specifically included the amounts due to the Municipalities of Tiwi and Daraga in asking Napocor to settle its obligations." In other words, the original claim of P214,845,184.76 or the reconciled figure of P207,375,774.72 representing real

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property taxes from 11 June 1984 to 10 March 1987 already covered the real property taxes payable to the municipalities concerned. Hence, when the Province sold at public auction the delinquent properties consisting of buildings, machines, and similar improvements, it was acting not only in its own behalf but also in behalf of the municipalities concerned. And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound collect taxes throughout the province, including the national, provincial, and municipal taxes and other revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the provincial or city treasurer is the one authorized to advertise the sale at public auction of the entire delinquent real property, except real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to buy the delinquent real property in the name of the province if there is no bidder or if the highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale. 9 Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the delinquent properties in the name of the province for the amount of taxes, penalties due thereon, and the costs of sale, which included the amounts of taxes due the municipalities concerned. It is therefore wrong for the petitioners to say that the subject NPC properties are exclusively owned by the Province. The Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent of their respective shares in the real property taxes and the penalties thereon. It must further be noted that it is the provincial treasurer who has charge of the delinquent real property acquired by the province. 10 He is also the one whom the delinquent taxpayer or any person holding a lien or claim to the property deal with in case the latter wishes to redeem the property. 11 He is also the one authorized to effect the resale at public auction of the delinquent property. 12 Thus, the municipalities concerned had to depend on him for the effective collection of real property taxes payable to them. Accordingly, when the Province entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the municipalities concerned. And whatever benefits that might spring from that agreement should also be shared with the latter. The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale. Hereinbelow is the pertinent portion of that agreement: WHEREAS, the Supreme Court ruled in the NATIONAL POWER CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of Tiwi and Daraga, Albay for the period June 11, 1984 to March 10, 1987; WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the PROVINCE OF ALBAY; WHEREAS, there is a need to further validate/reconcile the computation of the realty tax in the total amount of P214,845,184.76; NOW, THEREFORE, in view of the foregoing premises and for and in consideration of the mutual covenant and stipulations hereinafter provided, the parties hereto have agreed as follows: 1. NAPOCOR will make an initial payment of P17,783,000.00 receipt of which is hereby/acknowledged. 2. The balance of the validated/reconciled amount of the real estate taxes will be paid in 24 equal monthly installments, payable within the first five (5) working days of the month. The first monthly installment will commence in September 1992. 3. Should NAPOCOR default in any monthly installment, the balance will immediately become due and demandable. 4. NAPOCOR will pay such other taxes and charges, such as the franchise tax as provided for in the Local Government Code of 1991.

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5. In consideration of settlement of NAPOCOR's tax Liability, the PROVINCE OF ALBAY hereby waives its claim of ownership over NAPOCOR' properties subject in G.R. No. 87479 upon full payment of the balance due to the PROVINCE OF ALBAY. 13 (emphasis supplied). The tenor of the abovequoted agreement shows that the intention of the parties was for the redemption of the subject properties in that the Province would waive ownership over the properties "in consideration of settlement of Napocor's tax liability. Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public auction may be redeemed by paying the total amount of taxes and penalties due up to the date of redemption, costs of sale, and the interest at 20% of the purchase price. The petitioners are estopped from claiming that the amounts received by the Province from the NPC constitute payments of a debt under the MOA or of contract price in a private sale. They constitute redemption price or payments of NPC's tax liabilities. This is evident from the MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer, which reads: Date: July 29, 1992 Received from National Power Corp., Manila. In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos Philippine Currency P17,763,030.00 In payment of the following: For Partial Payment = P17,763,000.00 of Realty Tax Delinquency of Case No. 87479, NPC vs. Province of Albay. Total P17,763,000.00. (Sgd.) Abundio M. Nuez, Provincial Treasurer. Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which provides: "That the installments paid by said corporation for the months of September to December 1992, representing partial payments of the principal tax due are declared forfeited in favor of the Provincial Government of Albay." Moreover, in Resolution No. 197-92, the petitioners referred as "tax benefits" the shares of certain municipalities and barangays from the amount paid by the NPC under the MOA. The resolution reads in part as follows: WHEREAS, by virtue of the Memorandum agreement, signed by the petitioner, Province of Albay and respondent-oppositor, National Power Corporation (NPC), the latter have agreed and paid an initial payment to the Province of Albay; WHEREAS, the sharing based on the Local Government Code of 1991, the municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,416.82 respectively and the barangays Bay in Lingao to P319.00 and Tagoytoy in Malinao to P981.00, WHEREAS, these tax benefits due them are not enough to pursue a worthwhile project in said municipalities and barangays considering the present economic situation. 15 (emphasis supplied). As pointed out by the respondents, if the MOA was merely for the repurchase by NPC of its properties from Albay, what could have been executed was a simple deed of absolute sale in favor of NPC at an agreed price not necessarily P214 million which was the total amount of the realty tax in arrears. Additionally, there would have been no need for the parties "to further validate/reconcile the tax computation of the realty tax in the total amount of P214,845,184,76." Clearly, the P40,724,471.74 paid by the NPC to the Province pursuant to the MOA was part of the redemption price or of the realty taxes in arrears.

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It is conceded that under Section 78 of the Real Property Tax Code, redemption of delinquency property must be made within one year from the date of registration of sale of the property. The auction sale of the NPC properties was held on 30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the NPC offered to repurchase its former properties by paying its tax liabilities. When the Province accepted the offer, it virtually waived the one-year redemption period. And having thus allowed the MPC to redeem the subject properties and having received part of the redemption price, the Province should have shared with the municipalities concerned those amounts paid by the NPC in the same manner and proportion as if the taxes had been paid in, regular course conformably with Section 87(c) of the Real Property Tax Code, which provides: (c) the proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof shall accrue to the province, city or municipality in the same proportion as if the tax or taxes had been paid in regular course. As early as 3 August 1992, respondent Mayor Corral had already made a written demand for payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor Salalima refused saying that the initial check of P17,763,000.00 was merely an "earnest money." Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No. 197-92 giving some local government units, where smaller portions of the delinquent properties are situated, shares from the payments made by the NPC under the MOA.. The petitioners cannot claim to have acted in good faith in refusing to give the municipalities of Tiwi and Daraga their share. As pointed out by the Office of the Solicitor General, the petitioners were aware of the local tax ordinances passed by the respective Sangguniang Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in their respective localities. Petitioner Salalima had even quoted the said ordinances in his letter to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the petitioners averred in the instant petition that "Governor Salalima specifically included the amounts due to the municipalities of Tiwi and Daraga in asking NPC to settle its obligations." When doubt arose as to whether the municipalities concerned are entitled to share in the amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992, the province had already disbursed or spent a large part of the NPC payments. As found by COA, "of the P40,724,471.74 actually paid by the NPC and lodged in the province's general fund, P35,803,118.300 was disbursed or spent by the Province." If petitioners were really in good faith, they should have held the shares of Tiwi and Daraga in trust pursuant to Section 309 (b) of the Local Government Code of 1991, which provides: Trust funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator . . . A trust fund shall only be used for the specific purpose for which it came into the possession of the local government unit. As pointed out by the Ad Hoc Committee in its report, which was adopted by the Office of the President: It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as amended). Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

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However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law. We cannot therefore fault the public respondents with grave abuse of discretion in holding the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi and Daraga the amount of P40,724,471.74 paid by the NPC. IV. We agree with the petitioners that Governor Salalima could no longer be held administratively liable in C.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Corte's and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term, as held in Pascual vs. Provincial Board of Nueva Ecija 17 and Aguinaldo vs. Santos. 18 In Pascual, this Court ruled: We now come to one main issue of the controversy the legality of disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office. In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct. The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term, to which we fully subscribe. Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the office was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d 237; Board of Com'rs of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.V. 2d. 217). The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. This Court reiterated this rule in Aguinaldo and explicitly stated therein: Clearly then, the rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefore. The foregoing rule, however, finds no application to criminal cases pending against petitioners for acts he may have committed during the failed coup. However, the Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid. It is of the view that an official's reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us. The rule makes no distinction. As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year after he was reelected.

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

[G.R. No. 120099. July 24, 1996]

EDUARDO T. RODRIGUEZ vs. COMELEC, BIENVENIDO O. MARQUEZ, JR., respondents.

Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr. (Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed duly-elected governor. Marquez challenged Rodriguez victory via petition for quo warranto before the COMELEC (EPC No. 9228). Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez. The COMELEC dismissed Marquez quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise denied a reconsideration thereof. Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for

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certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez is a "fugitive from justice" as contemplated by Section 40(e) of the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned). In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC" promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that: fugitive from justice includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (x x x), and it may be so conceded as expressing the general and ordinary connotation of the term."i Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on Immigration showing that Rodriguez left the US on June 25, 1985 roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ Decision. In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when Rodriguez' petition for certiorari (112889) from where the April 18, 1995 MARQUEZ Decision sprung was still then pending before the Court. On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA No. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that: 1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases; 2. the parties, facts and issue involved are identical in both cases 3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from justice" 4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the two (2) cases is not procedurally flawed. Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind the MARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary evidence consisting of 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles Municipal Court against Rodriguez, and 2. an authenticated copy of the felony complaint which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walkout, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis: "The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed, respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be so, one must be aware of the filing of

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the criminal complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any attached document to show when he left the United States and when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent."ii And proceeding therefrom, the COMELEC, in the dispositive portion, declared: "WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside." At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the position of governor. On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995. The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari (G.R. No. 120099) on May 16, 1995. On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation Of Rodriguez To Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089). Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R. No. 120099). Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively). As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995. Marquez, on August 3, 1995, filed an "Urgent Motion For Temporary Restraining Order Or Preliminary Injunction" which sought to restrain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon x x x." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion To Lift Temporary Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied. In a Resolution dated October 24, 1995, the Court "x x x RESOLVED to DIRECT the Chairman of the Commission on Elections ('COMELEC') to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a fugitive from justice. Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof." The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled

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"EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion of the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985). But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's observations in full: x x x. The main opinion's definition of a 'fugitive from justice includes not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution.' It proceeded to state that: This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus, 275 Pacific Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. But in the majority of the cases cited, the definition of the term 'fugitive from justice' contemplates other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a 'fugitive from justice' as: (A) person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district. x x x Then, citing King v. Noe, the definition continues and conceptualizes a 'fugitive from justice' as: x x x a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. (our emphasis) In Hughes v. Pflanz, the term was defined as: a person who, having committed within a state a crime, when sought for, to be subjected to criminal process, is found within the territory of another state. Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an: expression which refers to one having committed, or being accused, of a crime in one jurisdiction and is absent for any reason from that jurisdiction. Specifically, one who flees to avoid punishment x x x (Italics ours) From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person committed a 'crime' or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode. Filing of charges prior to flight is not always an antecedent requirement to label one a 'fugitive from justice. Mere commission of a 'crime' without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word 'crime' which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person 'was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice. Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly

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(116 US 80) the United States Supreme Court held: x x x it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction (Italics supplied) Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakable language: The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice. THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A ' FUGITIVE FROM JUSTICE.' From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the definition of a 'fugitive from justice'. Considering, therefore, the equally valid yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law." The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice, the determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice": "x x x includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution." The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27iii and June 26 of 1995,iv preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by that same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez. With that, the Court gives due credit to the COMELEC in having made the. same analysis in its "x x x COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit: "It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-publicized announcement to the perpetrators of the imminent filing of charges

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against them. And having been forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law is a material element in the definition of a fugitive. "The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns first against the Marcos government, then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office. "Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. "The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. No justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him. "Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts? "It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged 'fugitive from justice' must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost

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priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. To require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very functions of his office." However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-define "fugitive from justice." They espouse the broader concept of the term as culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of "fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various definitions of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit: "'Law of the case' has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court." (21 C.J.S. 330) "It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein." (5 C.J.S. 1267) "In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal. "As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing." (5 C.J.S. 1276-77). "Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion." (5 C.J.S. 1286-87). To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision. To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local position under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit: "A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution." (Italics ours.)" Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.

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WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt) are SET ASIDE.

ii

[G.R. No. 112889. April 18, 1995.] BIENVENIDO O. MARQUEZ, JR., Petitioner, v. COMELEC and EDUARDO T. RODRIGUEZ, SYLLABUS 1. POLITICAL LAW; SEC. 40 (e), R.A. 7160 (LOCAL GOVERNMENT CODE OF 1991); ART. 73; IMPLEMENTING RULES AND REGULATIONS; SHOULD NEITHER EXPAND NOR CONSTRICT THE LAW. The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: "Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position:" (a) . . . (b)Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment." Private respondent reminds this Court that the construction placed upon a law by the officials in charge of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development Corp. v. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Courts en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment," is an inordinate and undue circumscription of the law. 1. POLITICAL LAW; SEC. 40; R.A. 7160 (LOCAL GOVERNMENT CODE OF 1991); ART. 73, RULES AND REGULATIONS; UNREASONABLY EXPANDS THE SCOPE OF DISQUALIFICATION. Section 40 of R.A. No. 7160, otherwise known as the Local Government Code of 1991 enumerates those who are disqualified from running for any elective local position, among whom is a: (e) Fugitive from justice in criminal or non-political cases here or abroad. The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, as inordinate and an undue circumscription of the law. Justice Davide agrees and further submits that it also unreasonably expands the scope of the disqualification in the 1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have served or are serving their sentences or have evaded service of sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the word fugitive. This new

definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear language of the law leaves no room for a reexamination of the meaning of the term. 2. ID.; ID.; DISQUALIFICATIONS, JUSTIFIED. There are certain fundamental considerations which do not support the application of the presumption of innocence under the Bill of Rights which support disqualification. Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who are disqualified from exercising the right of suffrage. Since the minimum requirement of a candidate for a public office is that he must be a qualified voter, it logically follows that Congress has the plenary power to determine who are disqualified to seek election for a public office. Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly provides. A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo v. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office may thus be required by law. Thirdly, the disqualification in question does not, in reality, involve the issue of presumption of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an information or criminal complaint against him. He is disqualified because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice. In the face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is not the challenged disqualifying provision which overcomes the presumption of innocence but rather the disqualified person himself who has proven his guilt. Finally, Dumlao v. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the validity of the challenged disqualification. Dumlao struck out as violative of the constitutional presumption of innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact." It is clear that the law challenged therein did in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in violation of the constitutional right to presumption of innocence. The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term "fugitive from justice" as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states:jgc:chanrobles.com.ph "SECTION 40. Disqualifications. The following persons are disqualified from running for any elective local position:j "(e) Fugitive from justice in criminal or non-political cases here or abroad(.)" Bienvenido Marquez, a defeated candidate for the elective position of Governor in the Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for being allegedly a fugitive from justice.chanrobles.com.ph : virtual law library It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against him for ten (10) counts of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent on account of his alleged "flight" from that country. Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondents certificate of candidacy, on the ground of the candidates disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the COMELEC dismissed the petition. Petitioners subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of a possible post-

election quo warranto proceeding against private Respondent. The Court, in its resolution of 02 June 1992, held:jgc:chanrobles.com.ph "Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private respondent had already been proclaimed as the duly elected Governor of the Province of Quezon, the petitioner below for disqualification has ceased to be a pre-proclamation controversy. In Casimiro v. Commission on Elections, G.R. Nos. 84462-63 and Antonio v. Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a pre-proclamation controversy is no longer viable at this point of time and should be dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in a separate proceeding.chanrobles lawlibrary : rednad "ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the appropriate proceedings in the proper forum, if so desired, within ten (10) days from notice." 1 Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution. Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether private respondent who, at the time of the filing of his certificate of candidacy (and to date), is said to be facing a criminal charge before a foreign court and evading a warrant for his arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore, disqualified from being a candidate for, and thereby ineligible from holding on to, an elective local office. Petitioners position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitives from justice in criminal or non-political cases here or abroad" from seeking any elective local office. The Solicitor General, taking the side of petitioner, expresses a like opinion and concludes that the phrase "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Blacks Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes v. PFlanz, 138 Federal Reporter 980; Tobin v. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term. In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with Section 533 2 2a of RA. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations necessary for the efficient and effective implementation of any and all provisions of the Code to ensure compliance with the principles of Local Autonomy." chanroblesvirtualawlibrary The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: "ARTICLE 73. Disqualifications. The following persons shall be disqualified from running for any elective local position: "(b) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment." Private respondent reminds us that the construction placed upon a law by the officials in charge of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development Corp. v. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed

during the Courts en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment," is an inordinate and undue circumscription of the law. Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the Courts opinion. The omission is understandable since the COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of this unresolved factual matter.chanrobles.com.ph : virtual law library WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing opinion. No special pronouncement on costs. SO ORDERED. Feliciano, Padilla, Regalado, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur. Separate Opinions1aw l ary Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for elective provincial, city, municipal, and barangay officials shall be those provided for in the Local Government Code. The quondam Local Government Code was B.P. Blg. 337, which was superseded by R.A. No. 7160, otherwise known as the Local Government Code of 1991. Section 39 of the latter provides for the qualifications and election of local elective officials. Section 40 enumerates those who are disqualified from running for any elective local position, among whom is a:chan(e) Fugitive from justice in criminal or non-political cases here or abroad. The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, as inordinate and an undue circumscription of the law. I agree. But this is only one side of the coin. I further submit that it also unreasonably expands the scope of the disqualification in the 1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have served or are serving their sentences or have evaded service of sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the word fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear language of the law leaves no room for a reexamination of the meaning of the term. I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification based on the presumption of innocence clause of the Bill of Rights. There are certain fundamental considerations which do not support the application of the presumption.: red Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who are disqualified from exercising the right of suffrage. Since the minimum requirement of a candidate for a public office is that he must be a qualified voter, it logically follows that Congress has the plenary power to determine who are disqualified to seek election for a public office. Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly provides:chanrob1es virtual 1aw library

SECTION 1. Public office is public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo v. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office may thus be required by law. Thirdly, the disqualification in question does not, in reality, involve the issue of presumption of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an information or criminal complaint against him. He is disqualified because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice. In the face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is not the challenged disqualifying provision which overcomes the presumption of innocence but rather the disqualified person himself who has proven his guilt. Finally, Dumlao v. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the validity of the challenged disqualification. Dumlao struck out as violative of the constitutional presumption of innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact." It is clear that the law challenged therein did in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in violation of the constitutional right to presumption of innocence.
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[G.R. No. 153475. November 13, 2002.] ATTY. MIGUEL M. LINGATING, Petitioner, v. COMMISSION ON ELECTIONS and CESAR B. SULONG This is a petition for certiorari to set aside the resolution, 1 dated April 4, 2002, of the Commission on Elections (COMELEC) en banc, reversing the resolution, 2 dated August 1, 2001, of its First Division and dismissing the petition for disqualification filed by petitioner Miguel M. Lingating against respondent Cesar B. Sulong as candidate for mayor of Lapuyan, Zamboanga del Sur in the May 14, 2001 elections.chanrob1es virtua1 1aw 1ibrary On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to 40(b) of Republic Act No. 7160 (Local Government Code), which disqualifies from running for any elective local position "those removed from office as a result of an administrative case." 3 It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other individuals, 4 was administratively charged (AC No. 12-91) with various offenses, 5 and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992. 6 Respondent Sulong denied that the decision in AC No. 12-91 had become final and executory. He averred that after receiving a copy of the decision on February 17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent Sulongs motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulongs) motion had consequently remained pending. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 12-

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91.chanrob1es virtua1 1aw 1ibrary After the parties had filed their memoranda, the case was submitted for resolution. Because the COMELEC was unable to render judgment before the elections of May 14, 2001, respondent Sulong was voted for in the elections, receiving 4,882 votes as against the 3,611 votes for petitioner. On May 16, 2001, respondent Sulong was proclaimed by the Municipal Board of Canvassers of Lapuyan as the duly elected mayor of that municipality. In a resolution dated August 1, 2001, the COMELECs First Division declared respondent Cesar B. Sulong disqualified. It held:chanrob1es virtual 1aw library Section 40(b) of the Local Government Code is clear that any person removed from office by reason of an administrative case is disqualified from running for any elective local office. From such point, it is clear that Respondent Sulong was declared guilty of having violated the AntiGraft and Corrupt Practices Act by the Sangguniang Panlalawigan of Zamboanga del Sur . . . which . . . has become final and executory, thereby depriving him of his right to run for public office. WHEREFORE, in the light of the foregoing, this Commission hereby resolves to GRANT this Petition and DISQUALIFY Respondent Cesar B. Sulong to run for Municipal mayor for Lapuyan, Zamboanga del Sur in the May 14, 2001 Elections in violation of Section 40[b] of the Local Government Code. Respondent Sulong filed a motion for reconsideration citing a certification, dated August 7, 2001, of Provincial Secretary of Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC No. 1291 "has not become final and executory as the final disposition thereof was overtaken by the local elections of May 1992." He reiterated his claim that at no time had he been removed by virtue of the said decision. Petitioner filed an opposition contending, among other things, that the fact that Zamboanga del Sur Governor Ariosa had ordered the enforcement of the decision signified that respondent Sulongs motion for reconsideration and/or notice of appeal had not been given due course by the Sangguniang Panlalawigan; and that respondent Sulongs claim that he had not been removed from office was belied by the fact that he (respondent Sulong) brought charges against Vicente Imbing for Usurpation of Official Functions (I.S. No. 92-35), in support of which respondent Sulong attested under oath that Imbing had succeeded him as mayor of Lapuyan. 9 In a separate motion, petitioner prayed that the resolution of August 1, 2001 be executed and that he be installed as mayor of Lapuyan in view of private respondents disqualification. On August 30, 2001, the COMELECs First Division denied petitioners motion for execution on the ground that the disqualification of an elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated. 10 Petitioner then filed a motion for reconsideration of this order. On April 4, 2002, the COMELEC en banc issued its resolution subject of the petition in this case, reversing the resolution, dated August 1, 2001, of its First Division insofar as it found respondent Sulong disqualified from running as mayor. It held:chanrob1es virtual 1aw library The only issue in this case is whether or not the foregoing decision [in AC No. 12-91], assuming it has become final and executory, constitutes a ground for the disqualification of herein respondent-movant as a candidate in the elections [of May 14, 2001].chanrob1es virtua1 1aw 1ibrary The records of the case reveal that the decision of the Sanggunian Panlalawigan was promulgated on February [4], 1992 finding respondent Sulong "guilty of dishonesty, falsification of public documents, malversation . . ."cralaw virtua1aw library In the May 1992 elections, respondent Sulong was re-elected mayor of Lapuyan, Zamboanga del Sur despite the decision of the Sangguniang dismissing him from office. In the 1995 May elections, respondent Sulong ran and won the mayoralty elections of Lapuyan, Zamboanga del Sur. While it is true that one of the disqualifications from running in an elective position is removal from

office as a result of an administrative case, said provision no longer applies if the candidate whose qualification is questioned got re-elected to another term. In Aguinaldo v. Santos, 212 SCRA 768, the Supreme Court ruled that re-election renders an administrative case moot and academic. Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995 elections would be tantamount to a condonation of the Sangguniang Panlalawigan decision promulgated 04 February 1992 which found him guilty of dishonesty, malversation of public funds etc[.], granting said decision has become final and executory. Moreover, the people of LAPUYAN have already expressed their will when they cast their votes in the recent elections as evidenced by the results which found respondent Sulong to have won convincingly. WHEREFORE, premises considered, the Commission En Banc RESOLVED as it hereby RESOLVES to reverse the First Division Resolution [dated August 1, 2001] and DISMISS the petition for lack of merit. 12 The COMELEC en banc also ruled that, in any event, respondent Sulong was not entitled to occupy the office thus vacated. Hence, this petition by Lingating. Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v. Commission on Elections 13 in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections 14 in which we held that an elective local executive officer, who is removed before the expiration of the term for which he was elected, is disqualified from being a candidate for a local elective position under 40(b) of the Local Government Code.chanrob1es virtua1 1aw 1ibrary We stated in Reyes:chanrob1es virtual 1aw library Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, . . . the decision in the administrative case, . . . was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. The records of this case show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a "motion for reconsideration and/or notice of appeal;" that on February 27, 1992, the Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91, to comment; and that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang Panlalawigan resolved respondents motion. The filing of his motion for reconsideration prevented the

decision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. Thus, it was held 15 that a party in a disbarment proceeding under Rule 139-B, 12(c) can move for a reconsideration of a resolution of the Integrated Bar of the Philippines although Rule 139-B does not so provide: Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration, nothing in its text or history suggests that such motion is prohibited. It may therefore be filed . . . Indeed, the filing of such motion should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment [an] opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of evidence.chanrob1es virtua1 1aw 1ibrary There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was "overtaken by the local elections of May [11,]1992."cralaw virtua1aw library Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to 68 16 of the Local Government Code, which makes decisions in administrative cases immediately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since, at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. Having come to the conclusion that respondent Sulong is not disqualified from holding the position of mayor of Lapuyan, it is unnecessary to pass upon petitioners contention that, as the candidate who obtained the second highest number of votes, he is entitled to be installed as mayor because the votes cast in favor of respondent Sulong were void.chanrob1es virtua1 1aw 1ibrary WHEREFORE, the petition for certiorari is DISMISSED and the resolution, dated April 4, 2002, of the COMELEC en banc, dismissing petitioners petition for disqualification, is AFFIRMED.