G.R. No.

108072 December 12, 1995

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

VITUG, J.:
The determination of whether the Ombudsman under Republic Act ("R.A.")
No. 6770, 1 otherwise known as the Ombudsman Act of 1989, has been
divested of his authority to conduct administrative investigations over local
elective officials by virtue of the subsequent enactment of R.A. No.
7160, 2 otherwise known as the Local Government Code of 1991, is the
pivotal issue before the Court in this petition.
The petition seeks (a) to annul the writ of preliminary injunction, dated 21
October 1992, issued against petitioner by respondent trial court and (b) to
prohibit said court from further proceeding with RTC Case No. MDE-14. 3
Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed
the office of Juan Hagad, now resigned, 4 who took the initiative in
instituting this special civil action for certiorari and prohibition.
The controversy stemmed from the filing of criminal and administrative
complaints, on 22 July 1992, against herein respondents Mayor Alfredo
Ouano, Vice-Mayor Paterno Caete and Sangguniang Panlungsod Member
Rafael Mayol, all public officials of Mandaue City, by Mandaue City
Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of
the Deputy Ombudsman for the Visayas. The respondents were charged
with having violated R.A. No. 3019, as amended, 5 Articles 170 6 and
171 7 of the Revised Penal Code; and R.A. No. 6713. 8Councilors Dionson
and Bercede averred that respondent officials, acting in conspiracy, had
caused the alteration and/or falsification of Ordinance No. 018/92 by
increasing the allocated appropriation therein from P3,494,364.57 to
P7,000,000.00 without authority from the Sangguniang Panlungsod of
Mandaue City. The complaints were separately docketed as Criminal Case
No. OMB-VIS-92-391 and as Administrative Case No. OMB-VIS-ADM-92-015.

A day after the filing of the complaints, or on 23 July 1992, a sworn

statement was executed by Mandaue City Council Secretary, Atty. Amado
C. Otarra, Jr., in support of the accusations against respondent officials. The
next day, petitioner ordered respondents, including Acting Mandaue City
Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido,
to file their counter-affidavits within ten (10) days from receipt of the order.
Forthwith, Councilors Dionson and Bercede moved for the preventive
suspension of respondent officials in the separately docketed
administrative case.
Aside from opposing the motion for preventive suspension, respondent
officials, on 05 August 1992, prayed for the dismissal of the complaint on
the ground that the Ombudsman supposedly was bereft of jurisdiction to
try, hear and decide the administrative case filed against them since,
under Section 63 of the Local Government Code of 1991, the power to
investigate and impose administrative sanctions against said local officials,
as well as to effect their preventive suspension, had now been vested with
the Office of the President.
In their opposition, filed on 10 August 1992, Dionson and Bercede argued
that the Local Government Code of 1991 could not have repealed,
abrogated or otherwise modified the pertinent provisions of the
Constitution granting to the Ombudsman the power to investigate cases
against all public officials and that, in any case, the power of the
Ombudsman to investigate local officials under the Ombudsman Act had
remained unaffected by the provisions of the Local Government Code of
1991.
During the hearing on the motion for preventive suspension, the parties
were directed by the Deputy Ombudsman to file their respective
memoranda.
In his memorandum, Mayor Ouano reiterated that, under Sections 61 and
63 of the Local Government Code of 1991, the Office of the President, not
the Office of the Ombudsman, could lawfully take cognizance of
administrative complaints against any elective official of a province, a
highly urbanized city or an independent component city and to impose
disciplinary sanctions, including preventive suspensions, and that there
was nothing in the provision of the Constitution giving to the Office of the
Ombudsman superior powers than those of the President over elective
officials of local governments.
In an Order, 9 dated 10 September 1992, the Office of the Deputy
Ombudsman denied the motion to dismiss and recommended the
preventive suspension of respondent officials, except City Budget Officer
Pedro M. Guido, until the administrative case would have been finally
resolved by the Ombudsman. 10 Respondent officials were formally placed

under preventive suspension by the Deputy Ombudsman pursuant to an

Order 11 of 21 September 1992.
On 25 September 1992, a petition for prohibition, with prayer for a writ of
preliminary injunction and temporary restraining order, was filed by
respondent officials with the Regional Trial Court of Mandaue City. Acting
favorably on the pleas of petitioning officials, respondent Judge issued, on
even date, a restraining order directed at petitioner, enjoining him ". . .
from enforcing and/or implementing the questioned order of preventive
suspension issued in OMB-VIS-ADM-92-015."
Petitioner moved to dismiss the petition but it was to no avail. The court a
quo, on 15 October 1992, denied the motion to dismiss and issued an
Order for the issuance of a writ of preliminary injunction, holding thusly:
So by following and applying the well-established rules of
statutory construction that endeavor should be made to
harmonize the provisions of these two laws in order that
each shall be effective, it is the finding of this Court that
since the investigatory power of the Ombudsman is so
general, broad and vague and gives wider discretion to
disciplining authority to impose administrative sanctions
against a responsible public official or employee while that
of Section 60 of the New Local Government Code provides
for more well defined and specific grounds upon which a
local elective official can be subjected to administrative
disciplinary action, that it Could be considered that the
latter law could be an exception to the authority and
administrative power of the Ombudsman to conduct an
investigation against local elective officials and as such,
the jurisdiction now to conduct administrative investigation
against local elective officials is already lodged before the
offices concerned under Section 61 of Republic Act No.
7160.
xxx xxx xxx
WHEREFORE, foregoing premises considered, Order is
hereby issued:

and/or damages which he may sustain by reason of the

injunction, if the Court will finally adjudge that the
petitioners are not entitled thereto, and
2) Denying the respondent's Motion to Dismiss dated
September 28, 1992 for lack of merit.
SO ORDERED.

12

A writ of preliminary injunction was issued on 21 October 1992. 13 A motion

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

1) Expanding the restraining order dated September 25,

1992 issued by the Court into an Order for the issuance of
a writ of preliminary injunction upon the posting of the
petitioners of the bond in the amount of Fifty thousand
pesos (P50,000.00) conditioned that the latter will pay all
the costs that may be adjudged to the adverse party

2. Are unreasonable, unfair, oppressive or discriminatory;

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

4. Proceed from a mistake of law or an arbitrary

ascertainment of facts;
5. Are in the exercise of discretionary powers but for an
improper purpose; or
6. Are otherwise irregular, immoral or devoid of
justification.
Section 21 of the same statute names the officials who could be
subject to the disciplinary authority of the Ombudsman, viz.:
Sec. 21. Officials Subject to Disciplinary Authority;
Exceptions. The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive
officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the
Cabinet, local government, government-owned or
controlled corporations and their subsidiaries except over
officials who may be removed only by impeachment or
over Members of Congress, and the Judiciary. (Emphasis
supplied)
Taken in conjunction with Section 24 of R.A. No. 6770, petitioner
thus contends that the Office of the Ombudsman correspondingly
has the authority to decree preventive suspension on any public
officer or employee under investigation by it. Said section of the
law provides:
Sec. 24. Preventive Suspension. The Ombudsman or his
Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his
judgment, the evidence of guilt is strong, and (a) the
charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in
the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's continued
stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more
than six months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is
due to the fault, negligence or petition of the respondent,
in which case the period of such delay shall not be counted
in computing the period of suspension herein provided.

Respondent officials, upon the other hand, argue that the disciplinary
authority of the Ombudsman over local officials must be deemed to have
been removed by the subsequent enactment of the Local Government
Code of 1991 which vests the authority to investigate administrative
charges, listed under Section 60 15 thereof, on various offices. In the case
specifically of complaints against elective officials of provinces and highly
urbanized cities, the Code states:
Sec. 61. Form and Filing of Administrative Complaints. A
verified complaint against any erring local elective officials
shall be prepared as follows:
(a) A complaint against any elective official of a province, a
highly urbanized city, an independent component city or
component city shall be filed before the Office of the
President.
Thus respondents insist, conformably with Section 63 of the Local
Government Code, preventive suspension can only be imposed by:
". . . the President if the respondent is an elective official of a
province, a highly urbanized or an independent component
city; . . . " under sub-paragraph (b) thereof:
(b) Preventive suspension may be imposed at any time
after the issues are joined, when the evidence of guilt is
strong, and given the gravity of the offense, there is great
probability that the continuance in office of the respondent
could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence; Provided,
That, any single preventive suspension of local elective
officials shall not extend beyond sixty (60)
days: Provided, further, That in the event that several
administrative cases are filed against an elective official,
he cannot be preventively suspended for more than ninety
(90) days within a single year on the same ground or
grounds existing and known at the time of the first
suspension.
In his comment, which the Court required considering that any final
resolution of the case would be a matter of national concern, the SolicitorGeneral has viewed the Local Government Code of 1991 as having
conferred, but not on an exclusive basis, on the Office of the President (and
the various Sanggunians) disciplinary authority over local elective officials.
He posits the stand that the Code did not withdraw the power of the
Ombudsman theretofore vested under R.A. 6770 conformably with a
constitutional mandate. In passing, the Solicitor General has also opined
that the appropriate remedy that should have been pursued by respondent

officials is a petition for certiorari before this Court rather than their
petition for prohibition filed with the Regional Trial Court.
Indeed, there is nothing in the Local Government Code to indicate that it
has repealed, whether expressly or impliedly, the pertinent provisions of
the Ombudsman Act. The two statutes on the specific matter in question
are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other . Well settled is the rule that repeals
of laws by implication are not favored, 16 and that courts must generally
assume their congruent application. 17 The two laws must be absolutely
incompatible, 18 and a clear finding thereof must surface, before the
inference of implied repeal may be drawn. 19 The rule is expressed in the
maxim, interpretare et concordare legibus est optimus interpretendi, i.e.,
every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. 20 The fundament is that
the legislature should be presumed to have known the existing laws on the
subject and not to have enacted conflicting statutes. 21 Hence, all doubts
must be resolved against any implied repeal, 22and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject. 23
Certainly, Congress would not have intended to do injustice to the very
reason that underlies the creation of the Ombudsman in the 1987
Constitution which "is to insulate said office from the long tentacles of
officialdom." 24
Quite interestingly, Sections 61 and 63 of the present Local Government
Code run almost parallel with the provisions then existing under the old
code. Section 61 and Section 63 of the precursor local Government Code of
1983, 25 under the heading of "Suspension and Removal," read:
Sec. 61. Form and Filing of Complaints. Verified
complaints against local elective officials shall be prepared
as follows:
(a) Against any elective provincial or city official, before the
Minister of Local Government.
Sec. 63. Preventive Suspension. (1) Preventive
suspension may be imposed by the Minister of Local
Government if the respondent is a provincial or city official,
by the provincial governor if the respondent is an elective
municipal official, or by the city or municipal mayor if the
respondent is an elective barangay official.
(2) Preventive suspension may be imposed at any time
after the issues are joined, when there is reasonable

ground to believe that the respondent has committed the

act or acts complained of, when the evidence of culpability
is strong, when the gravity of the offense so warrants, or
when the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence. In all cases,
preventive suspension shall not extend beyond sixty days
after the start of said suspension.
(3) At the expiration of sixty days, the suspended official
shall be deemed reinstated in office without prejudice to
the continuation of the proceedings against him until its
termination. However, if the delay in the proceedings of
the case is due to his fault, neglect or request, the time of
the delay shall not be counted in computing the time of
suspension.
The authority to conduct administrative investigation and to
impose preventive suspension over elective provincial or city
officials was at that time entrusted to the Minister of Local
Government until it became concurrent with the Ombudsman upon
the enactment of R.A. No. 6770, specifically under Sections 21 and
24 thereof, to the extent of the common grant. The Local
Government Code of 1991 (R.A. No. 7160), in fine, did not effect a
change from what already prevailed, the modification being only in
the substitution of the Secretary (the Minister) of Local
Government by the Office of the President.
Respondent local officials contend that the 6-month preventive suspension
without pay under Section 24 of the Ombudsman Act is much too
repugnant to the 60-day preventive suspension provided by Section 63 of
the Local Government Code to even now maintain its application. The two
provisions govern differently. In order to justify the preventive suspension
of a public official under Section 24 of R.A. No. 6770, the evidence of guilt
should be strong, and (a) the charge against the officer or employee should
involve dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges should warrant removal from the
service; or (c) the respondent's continued stay in office would prejudice the
case filed against him. The Ombudsman can impose the 6-month
preventive suspension to all public officials, whether elective or appointive,
who are under investigation. Upon the other hand, in imposing the shorter
period of sixty (60) days of preventive suspension prescribed in the Local
Government Code of 1991 on an elective local official (at any time after the
issues are joined), it would be enough that (a) there is reasonable ground
to believe that the respondent has committed the act or acts complained
of, (b) the evidence of culpability is strong, (c) the gravity of the offense so
warrants, or (d) the continuance in office of the respondent could influence

the witnesses or pose a threat to the safety and integrity of the records
and other evidence.
Respondent officials, nevertheless, claim that petitioner committed grave
abuse of discretion when he caused the issuance of the preventive
suspension order without any hearing.
The contention is without merit. The records reveal that petitioner issued
the order of preventive suspension after the filing (a) by respondent
officials of their opposition on the motion for preventive suspension and (b)
by Mayor Ouano of his memorandum in compliance with the directive of
petitioner. Be that, as it may, we have heretofore held that, not being in
the nature of a penalty, a preventive suspension can be decreed on an
official under investigation after charges are brought and even before the
charges are heard. Naturally, such a preventive suspension would occur
prior to any finding of guilt or innocence. In the early case of Nera
vs. Garcia, 26 reiterated in subsequent cases,27 we have said:
In connection with the suspension of petitioner before he
could file his answer to the administrative complaint,
suffice it to say that the suspension was not a punishment
or penalty for the acts of dishonesty and misconduct in
office, but only as a preventive measure. Suspension is a
preliminary step in an administrative investigation. If after
such investigation, the charges are established and the
person investigated is found guilty of acts warranting his
removal, then he is removed or dismissed. This is the
penalty. There is, therefore, nothing improper in
suspending an officer pending his investigation and before
the charges against him are heard and be given an
opportunity to prove his innocence.

governments. Finally, it is likewise the holding of this office

at this stage that the continued stay in office of
respondents may prejudice the judicious investigation and
resolution of the instant case. 29
Finally, it does appear, as so pointed out by the Solicitor General, that
respondent official's petition for prohibition, being an application for
remedy against the findings of petitioner contained in his 21 September
1992 order, should not have been entertained by the trial court. The
proscription in Section 14 of R.A. No. 6770 reads:
Sec. 14. Restrictions. No writ of injunction shall be issued
by any court to delay an investigation being conducted by
the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation
is outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy
against the decision or findings of the Ombudsman, except
the Supreme Court, on pure question of law.
Likewise noteworthy is Section 27 of the law which prescribes a
direct recourse to this Court on matters involving orders arising
from administrative disciplinary cases originating from the Office of
the Ombudsman; thus:
Sec. 27. Effectivity and Finality of Decisions. . . .
In all administrative disciplinary cases, orders, directives,
or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the
written notice of the order, directive or decision or denial of
the motion for reconsideration in accordance with Rule 45
of the Rules of Court. (Emphasis supplied)

Moreover, respondent officials were, in point of fact, put on preventive

suspension only after petitioner had found, in consonance with our ruling
in Buenaseda vs. Flavier, 28 that the evidence of guilt was strong. Petitioner
gave his justification for the preventive suspension in this wise:
After a careful and honest scrutiny of the evidence
submitted on record, at this stage, it is the holding of this
office that the evidence of guilt against the respondents in
the instant case is strong. There is no question that the
charge against the respondents involves dishonesty or
gross misconduct which would warrant their removal from
the service and there is no gainsaying the fact that the
charge for falsification of veritable documents like city
ordinances are very serious charges that affect the very
foundations of duly established representative

All told, petitioner is plainly entitled to the relief prayed for, and we must,
accordingly; grant the petition.
WHEREFORE, the questioned writ of preliminary injunction of 21 October
1992 is ANNULLED and SET ASIDE, and RTC Case No. MDE-14 is hereby
ordered DISMISSED. No costs.
SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Bellosillo, Melo, Puno,

Kapunan, Mendoza, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.
Davide, Jr., J., took no part.

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

Petitioner,
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
- versus - ABAD, and
MENDOZA, JJ.
ROLSON RODRIGUEZ, Promulgated:
Respondent. July 23, 2010
x------------------------------------------------ - -x
DECISION
CARPIO, J.:

The Case

This is a petition for review[1] of the 8 May 2006 Decision [2] of the Court of
Appeals in CA-G.R. SP No. 00528 setting aside for lack of jurisdiction the 21
September 2004 Decision[3] of the Ombudsman (Visayas) in OMB-V-A-030511-H.

The Antecedent Facts

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

complaint

abuse of authority, dishonesty, oppression, misconduct in office, and

complainants filed a motion[12] to withdraw the complaint lodged in

neglect of duty against Rolson Rodriguez, punong barangay in Brgy. Sto.

the sangguniang bayan on the ground that they wanted to prioritize the

Rosario,

2003,

complaint filed in the Ombudsman. Rodriguez filed a comment [13] praying

the sangguniang bayan of Binalbagan, Negros Occidental, through vice-

that the complaint be dismissed on the ground of forum shopping, not on

mayor Jose G. Yulo, received a similar complaint [5] against Rodriguez for

the ground complainants stated. In their opposition, [14]complainants

abuse of authority, dishonesty, oppression, misconduct in office, and

admitted they violated the rule against forum shopping and claimed they

neglect of duty.

filed the complaint in the sangguniang bayan without the assistance of

Binalbagan,

Negros

Occidental. On

September

filed

in

the sangguniang

bayan. On

29

October

2003,

counsel. In his 4 November 2003 Resolution, [15] the municipal vice-mayor

In its 8 September 2003 notice, [6] the municipal vice-mayor required

dismissed the case filed in the sangguniang bayan.

Rodriguez to submit his answer within 15 days from receipt of the notice.
On 23 September 2003, Rodriguez filed a motion to dismiss [7] the case filed

In its 29 January 2004 order, [16] the Ombudsman directed both parties to

in the sangguniang bayan on the ground that the allegations in the

file their respective verified position papers. Rodriguez moved for

complaint were without factual basis and did not constitute any violation of

reconsideration of the order citing the pendency of his motion to dismiss.

law.

[17]

In a compliance[8] dated 22 October 2003,

Rodriguez alleged

complainants violated the rule against forum shopping.

In its 11 March 2004 order,[18] the Ombudsman stated that a motion to

dismiss was a prohibited pleading under Section 5 (g) Rule III of

Administrative Order No. 17. The Ombudsman reiterated its order for

Meanwhile, in its 10 September 2003 order, [9] the Ombudsman required

Rodriguez to file his position paper.

Rodriguez to file his answer. Rodriguez filed on 24 October 2003 a motion

to dismiss[10] the case filed in the Ombudsman on the grounds of litis

In his position paper, Rodriguez insisted that the sangguniang bayan still

pendentia and

the sangguniang

continued to exercise jurisdiction over the complaint filed against him. He

bayan had already acquired jurisdiction over his person as early as 8

claimed he had not received any resolution or decision dismissing the

September 2003.

complaint

forum

shopping.

He

alleged

that

filed

in

the sangguniang

bayan. In

reply,[19] complainants

maintained there was no more complaint pending in thesangguniang

The municipal vice-mayor set the case for hearing on 3 October 2003.

bayan since the latter had granted their motion to withdraw the complaint.

Since complainants had no counsel, the hearing was reset to a later

In a rejoinder,[20] Rodriguez averred that the sangguniang bayan resolution

date. When the case was called again for hearing, complainants counsel

dismissing the case filed against him was not valid because only the vice-

manifested that complainants would like to withdraw the administrative

mayor signed it.

[11]

The Ruling of the Ombudsman

The

appellate

court

noted

that

the sangguniang

bayan served

on

Rodriguez a notice, requiring the latter to file an answer, on 8 September

In its 21 September 2004 Decision, [21] the Ombudsman found Rodriguez
guilty of dishonesty and oppression. It imposed on Rodriguez the penalty of

2003 while the Ombudsman did so two days later or on 10 September

2003.

dismissal from the service with forfeiture of all benefits, disqualification to

hold public office, and forfeiture of civil service eligibilities. Rodriguez filed
a motion for reconsideration.[22] In its 12 January 2005 Order, [23] the
Ombudsman denied the motion for reconsideration. In its 8 March 2005
Order,[24] the Ombudsman directed the mayor of Binalbagan, Negros
Occidental to implement the penalty of dismissal against Rodriguez.

Petitioner Ombudsman contends that upon the filing of a complaint before

a body vested with jurisdiction, that body has taken cognizance of the
complaint. Petitioner cites Blacks Law Dictionary in defining what to take
cognizance means to wit, to acknowledge or exercise jurisdiction.
Petitioner points out it had taken cognizance of the complaint against
Rodriguez before a similar complaint was filed in the sangguniang

Rodriguez filed in the Court of Appeals a petition for review with prayer for
the issuance of a temporary restraining order.

bayan against the same respondent. Petitioner maintains summons or

notices do not operate to vest in the disciplining body jurisdiction over the
person of the respondent in an administrative case. Petitioner concludes

The Ruling of the Court of Appeals

that consistent with the rule on concurrent jurisdiction, the Ombudsmans

exercise of jurisdiction should be to the exclusion of the sangguniang

In its 8 May 2006 Decision,[25] the Court of Appeals set aside for lack of

bayan.

jurisdiction the Decision of the Ombudsman and directed the sangguniang

bayan to proceed with the hearing on the administrative case. The
appellate

court

reasoned that

the sangguniang bayan had acquired

primary jurisdiction over the person of Rodriguez to the exclusion of the

Ombudsman. The Court of Appeals relied on Section 4, Rule 46 of the Rules
of Court, to wit:
Sec. 4. Jurisdiction over person of respondent, how
acquired. The court shall acquire jurisdiction over the
person of the respondent by the service on him of its order
or resolution indicating its initial action on the petition or
by his voluntary submission to such jurisdiction.

Private respondent Rolson Rodriguez counters that when a competent body

has acquired jurisdiction over a complaint and the person of the
respondent, other bodies are excluded from exercising jurisdiction over the
same complaint. He cites Article 124 of the Implementing Rules and
Regulations of Republic Act No. 7160,[26] which provides that an elective
official may be removed from office by order of the proper court or the
disciplining authority whichever first acquires jurisdiction to the exclusion
of the other. Private respondent insists the sangguniang bayan first
acquired jurisdiction over the complaint and his person. He argues

jurisdiction over the person of a respondent in an administrative complaint

is acquired by the service of summons or other compulsory processes.
Private respondent stresses complainants violated the rule against forum
shopping

when

they

filed

identical

complaints

in

two

disciplining

authorities exercising concurrent jurisdiction.

The Issues

Sec. 15. Powers, Functions, and Duties. The Ombudsman

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

The issues submitted for resolution are (1) whether complainants violated

omission of a public officer or employee applies only in cases cognizable by

the rule against forum shopping when they filed in the Ombudsman and

the Sandiganbayan.

the sangguniang bayanidentical complaints against Rodriguez; and (2)

Ombudsman has concurrent jurisdiction with other investigative agencies

whether it was the sangguniang bayan or the Ombudsman that first

of government.[27] Republic Act No. 8249, otherwise known as An Act

acquired jurisdiction.

Further Defining the Jurisdiction of the Sandiganbayan, limits the cases

In

cases

cognizable

by

regular

courts,

the

that are cognizable by the Sandiganbayan to public officials occupying

The Courts Ruling

positions

corresponding

to

salary

grade

27

and

higher. The Sandiganbayanhas no jurisdiction over private respondent who,

The petition has merit.

as punong barangay, is occupying a position corresponding to salary grade

14 under Republic Act No. 6758, otherwise known as the Compensation

Paragraph 1, Section 13 of Article XI of the Constitution provides:

and Position Classification Act of 1989.[28]

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

Under Republic Act No. 7160, otherwise known as the Local Government

functions, and duties:

Code, the sangguniang panlungsod or sangguniang bayan has disciplinary

(1) Investigate on its own, or on complaint by any person,

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

authority over any elective barangay official, to wit:

Section 15 of Republic Act No. 6770, otherwise known as the Ombudsman

SEC. 61. Form and Filing of Administrative Complaints. A

verified complaint against any erring elective official shall
be prepared as follows:

Act of 1989, states:

xxxx

(c) A complaint against any elective barangay official shall

be
filed
before
the sangguniang
panlungsod or sangguniang
bayan concerned
whose
decision shall be final and executory.
Clearly, the Ombudsman has concurrent jurisdiction with the sangguniang
bayan over

administrative

cases

against

elective barangay officials

occupying positions below salary grade 27, such as private respondent in

this case.

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

In administrative cases involving the concurrent jurisdiction of two or more

disciplining authorities, the body in which the complaint is filed first, and
which opts to take cognizance of the case, acquires jurisdiction to the
exclusion of other tribunals exercising concurrent jurisdiction. [31] In this
case, since the complaint was filed first in the Ombudsman, and the
Ombudsman opted to assume jurisdiction over the complaint, the

It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction, once

acquired, is not lost upon the instance of the parties but continues until the
case is terminated.[32] When herein complainants first filed the complaint in
the Ombudsman, jurisdiction was already vested on the latter. Jurisdiction
could no longer be transferred to the sangguniang bayan by virtue of a
subsequent complaint filed by the same complainants.

As a final note, under Section 60 of the Local Government Code,

the sangguniang

bayan has

no

power

to

remove

an

elective barangay official. Apart from the Ombudsman, only a proper court
may

do

so.[33] Unlike

the sangguniang

bayan, the

powers

of

the

Ombudsman are not merely recommendatory. The Ombudsman is clothed

with authority to directly remove[34] an erring public official other than
members of Congress and the Judiciary who may be removed only by
impeachment.[35]

WHEREFORE, we GRANT the petition. We SET ASIDE the 8 May 2006

Decision of the Court of Appeals in CA-G.R. SP No. 00528. We AFFIRM the
21 September 2004 Decision of the Ombudsman (Visayas) in OMB-V-A-030511-H.

No pronouncement as to costs.

SO ORDERED.

Ombudsmans exercise of jurisdiction is to the exclusion of the sangguniang

bayanexercising concurrent jurisdiction.

10

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

CONRADO B. RODRIGO, JR., ALEJANDRO A. FACUNDO and

REYNALDO G. MEJICA, petitioners, vs. THE HONORABLE
SANDIGANBAYAN (First Division), OMBUDSMAN and PEOPLE
OF THE PHILIPPINES, respondents.

On 14 August 1993, petitioners received a Notice of Disallowance

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

DECISION

Percentage

KAPUNAN, J.:
Accomplished
Petitioners Conrado B. Rodrigo and Reynaldo G. Mejica are the Mayor
and Municipal Planning and Development Coordinator, respectively, of San
Nicolas, Pangasinan, while petitioner Alejandro A. Facundo is the former
Municipal Treasurer of the same municipality.
On 15 June 1992, the Municipality of San Nicolas, represented by
Mayor Rodrigo, entered into an agreement with Philwood Construction,
represented by Larry Lu, for the electrification of Barangay Caboloan, San
Nicolas, for the sum of P486,386.18, requiring:
1. Installation of the two (2) units diesel power generator (20) KVA, 220 W,
Battery start and other accessories);

Amount paid

P452,825.53

93.0090%

(accdg. to Meji

P291,915.07

60.0171%

(accdg. to COA

P160,910.46

33.08%

(difference)

By Municipality

Cost of Actual
Accomplishment

2. Installation of 24 rolls feeder lines with nos. 6, 8 and ten wires;

3. Installation of 40 units 4 x 4 wooden post with accessories; and
4. Construction of powerhouse with concrete foundation double throw
safety switches (double pole, 250 amperes capacity of 220 V with
fuse).[1]
On 2 September 1992, Mejica, the Planning and Development
Coordinator of San Nicolas, prepared an Accomplishment Report stating
that the Caboloan Power Generation project was 97.5% accomplished. Said
report was supposedly approved by mayor Rodrigo and confirmed by Larry
Lu. On the basis of said report, payment of P452,825.53 was effected by
the Municipal Treasurer, petitioner Facundo, to Philwood Construction.

Amount
Disallowed

In September 1993, petitioners requested the Provincial Auditor to lift

the notice of disallowance[2] and to re-inspect the project.[3] Petitioners
reiterated their plea in a letter to the Provincial Auditor dated 3 November
1993,[4] attaching
therewith
a
Certificate
of
Acceptance
and
Completion[5] signed by Clemente Arquero, Jr., Barangay Captain of
Caboloan, and Eusebio Doton, President of the Cabaloan Electric
Cooperative. The Provincial Auditor, however, allegedly did not act on
petitioners requests.

11

On 10 January 1994, the Provincial Auditor filed a criminal complaint

for estafa before the Ombudsman against petitioners. Likewise impleaded
were Larry Lu and Ramil Ang, President and General Manager, and Project
Engineer, respectively, of Philwood Construction.
On 10 June 1995, Acting Ombudsman Francisco Villa approved the
filing of an information against petitioners for violation of Section 3 (e) of
Republic Act No. 3019[6] before the Sandiganbayan.
On 28 July 1995, petitioners filed a motion for reinvestigation before
the Sandiganbayan. The Sandiganbayan granted said motion in an Order
dated 22 April 1996.
On 7 November 1995, the Office of the Special Prosecutor issued a
memorandum recommending that the charges against petitioners be
maintained. The Ombudsman approved said memorandum.
Petitioners thereafter filed before the Sandiganbayan a motion to
quash the information alleging, as grounds therefor that (1) the facts
alleged in the information did not constitute an offense, and (2) the same
information charged more than one offense. Petitioners, however, did not
elaborate on these grounds. They instead faulted the Provincial Auditor for
instituting the complaint against them notwithstanding the pendency of
their opposition to the notice of disallowance. They also argued that the
evidence against them did not establish the element of damage nor the
presence of any conspiracy between them.
The Sandiganbayan denied said motion in an Order dated 18 March
1996.

THE SANDIGANBAYAN ERRED IN ALLOWING THE LITIGATION OF THE

CRIMINAL INFORMATION FOR CONSPIRACY IN VIOLATING SECTION 3(E) OF
THE ANTI- GRAFT ACT (R.A.3019) WHEN THE NOTICE OF DISALLOWANCE
STILL PENDS WITH THE PROVINCIAL AUDITOR UNDER PETITIONER PROTEST
SUPPORTED BY CERTIFICATE OF COMPLETION AND ACCEPTANCE OF THE
REQUIRED ELEMENT OF 'CAUSING UNDUE INJURY TO ANY PARTY,
INCLUDING THE GOVERNMENT AND GROSS NEGLIGENCE.
II
THE SANDIGANBAYAN HAS NO JURISDICTION TO PROCEED AGAINST ALL
THE PETITIONERS AND ALL THE PROCEEDINGS THEREIN, PARTICULARLY
THE ORDER OF SUSPENSION FROM OFFICE PENDENTE LITE, ARE NULL AND
VOID AB INITIO.
III
THE ONGOING PROCEEDINGS BEFORE THE SANDIGANBAYAN IS A CLEAR
VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE PETITIONERS UNDER
THE DUE PROCESS CLAUSEAS IT WAS PRECEDED BY HASTY, MALICIOUS,
SHAM AND HASTY PRELIMINARY INVESTIGATION INEVITABLY EXPOSING
THEM TO A PROLONGED ANXIETY, AGGRAVATION, EXPENSES, AND
HUMILIATION OF A PUBLIC TRIAL.
IV

On 18 March 1996, the prosecution moved to suspend

petitioners pendente lite. Petitioners opposed the motion on the ground
that the Sandiganbayan lacked jurisdiction over them. In a Resolution
dated 2 July 1996, the Sandiganbayan ruled that it had jurisdiction over
petitioners and ordered the suspension of petitioners pendente lite.

THE PRECIPITATE SANDIGANBAYAN ORDER OF SUSPENSION IS A LEGAL

ERROR AS THE SAME EVIDENTLY THE LACK OF THE REQUIRED COLD
NEUTRALITY OF AN IMPARTIAL TRIBUNAL VIOLATING PETITIONERS
CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS CLAUSE AND BILL OF
RIGHTS.[7]

Petitioners thus filed before this Court the instant petition

for certiorari under Rule 65, praying that the Court annul: (a) the order of
the Sandiganbayan denying petitioners motion to quash, and (b) the
resolution of the same court upholding its jurisdiction over
petitioners. Petitioners likewise prayed that this Court issue a temporary
restraining order to enjoin the Sandiganbayan from proceeding with the
case.

The first ground raises two issues: (1) whether petitioners right to due
process was violated by the filing of the complaint against them by the
Provincial Auditor, and (2) whether the Ombudsman committed grave
abuse of discretion in filing the information against petitioners. The second
questions the jurisdiction of the Sandiganbayan over petitioners. The third
and fourth grounds are related to the first and are subsumed thereunder.

On 28 August 1998, the court resolved to issue the temporary

restraining order prayed for.
Petitioners allege the following grounds in support of their petition:
I

After a meticulous scrutiny of petitioners arguments, we find the

petition devoid of merit.
I
Petitioners contend that the institution by the Provincial Auditor of the
complaint despite the pendency of their opposition to the notice of
disallowance violates their right to due process. They submit that the

12

issuance of a notice of disallowance against (them) compels the provincial

auditor to either accept a settlement or adjudicate and decide on the
written explanation for the purpose of lifting/settling the suspension or
extending the time to answer beyond the ninety (90) day period prior to its
conversion into a disallowance. [8]
The italicized portion above is an excerpt from Section 44.6.4 of the
State Audit Manual, which states in full:
Sec. 44.6.4. Auditors Responsibility re Evaluation of Disallowance. It shall
be the responsibility of the auditor to exercise professional judgment in
evaluating, on the basis of the facts and circumstances of each case as
well as the pertinent provisions of applicable laws, rules and regulations,
the grounds for a charge or suspension/disallowance of an account or
transaction.
It shall be the responsibility of the auditor to exercise sound judgment in
evaluating the written explanation of the accountable/responsible/liable
officer concerned for the purpose of lifting the suspension or extending the
time to answer beyond the ninety (90) day period prior to its conversion
into a disallowance. (Underscoring supplied.)
The aforequoted provision should be read in conjunction with Section
82 of the State Audit Code,[9] which states that:
(a) charge of suspension which is not satisfactorily explained within
ninety days after receipt or notice by the accountable officer
concerned shall become a disallowance, unless the Commission or
auditor concerned shall, in writing and for good cause shown, extend
the time for answer beyond ninety days.
At this point, it may be useful to distinguish between a disallowance
and a suspension. A disallowance is the disapproval of a credit or credits
to an account/accountable officers accountability due to non-compliance
with law or regulations.[10] Thus, the auditor may disallow an
expenditure/transaction which is unlawful or improper. [11]
A suspension, on the other hand, is the deferment of action to
debit/credit the account/accountable officers accountability pending
compliance with certain requirements.[12] A notice of suspension is issued
on transactions or accounts which could otherwise have been settled
except for some requirements, like lack of supporting documents or certain
signatures. It is also issued on transactions or accounts the
legality/propriety of which the auditor doubts but which he may later allow
after satisfactory or valid justification is submitted by the parties
concerned.[13]

As stated in Section 82, supra, however, the suspension shall become

a disallowance if the charge of suspension is not satisfactorily explained
within ninety days after receipt or notice by the accountable officer
concerned." The ninety-day period within which the accountable officer
may answer the charge of suspension may nevertheless be extended by
the Commission or the auditor for good cause shown.
Clearly, petitioners misinterpreted Section 44.6.4. First, petitioners
were not charged with suspension but disallowance. Second, the written
explanation referred to in said section is for the purpose of lifting the
suspension or extending the time to answer beyond the ninety (90) day
period prior to its conversion into a disallowance, not for contesting a
disallowance, as petitioners wrongfully assert. Section 44.6.4., therefore,
finds no application in this case.
On the other hand, respondents correctly invoke Sections 55 and 56 of
Commission on Audit Circular No. 85-156-B, which respectively provide:
SECTION 55. REPORTING FRAUD/UNLAWFUL ACTIVITIES
If after evaluation of the findings, the auditor is convinced that the
evidence sufficiently discloses the fraud and other unlawful activities and
identifies the perpetrators thereof, he shall prepare the sworn statements
of the examining witnesses and/or other witnesses and make a report to
the Manager/Regional Director concerned, attaching thereto copies of the
pertinent affidavits and other supporting documents.
SECTION 56. INSTITUTION OF CRIMINAL ACTION
If criminal prosecution is warranted, the Regional Director/Manager
concerned with respect to National Government Agencies/government
Owned or Controlled Corporations or Provincial/City Auditors with respect
to local government units shall prepare a letter-complaint and file the same
with the Tanodbayan or the local deputized Tanodbayan prosecutor within
ten (10) days from receipt of the report from the examining auditor,
attaching thereto copies of the sworn statements or affidavits of witnesses
and other pertinent documents.
Section 56 imposes upon the Provincial Auditor the duty to file a
complaint before the Tanodbayan (now the Ombudsman) when, from the
evidence obtained during the audit, he is convinced that criminal
prosecution is warranted. The Provincial Auditor need not resolve the
opposition to the notice of disallowance and the motion for re-inspection
pending in his office before he institutes such complaint so long as there
are sufficient grounds to support the same. The right to due process of the
respondents to the complaint, insofar as the criminal aspect of the case is
concerned, is not impaired by such institution. The respondents will still

13

have the opportunity to confront the accusations contained in the

complaint during the preliminary investigation. They may still raise the
same defenses contained in their motion to lift the disallowance, as well as
other defenses, in the preliminary investigation. Should the Provincial
Auditor later reverse himself and grant respondents motions, or should the
COA, or this Court, subsequently absolve them from liability during the
pendency of the preliminary investigation, the respondents may ask the
prosecuting officer to take cognizance of such decision. The prosecuting
officer may then accord such decision its proper weight.
It bears stressing that the exoneration of respondents in the audit
investigation does not mean the automatic dismissal of the complaint
against them. The preliminary investigation, after all, is independent from
the investigation conducted by the COA, their purposes distinct from each
other. The first involves the determination of the fact of the commission of
a crime; the second relates to the administrative aspect of the expenditure
of public funds.[14]
Accordingly, we hold that the Ombudsman did not err in entertaining
the complaint filed by the Provincial Auditor against petitioners, nor
the Sandiganbayan in allowing trial to proceed, despite the pendency of
petitioners motions before the auditor.
II
Petitioners argue that their opposition to the disallowance, supported
as it is by a certificate of acceptance and completion, would betray the
absence of the elements of evident bad faith or negligence, and
damage. They likewise claim that the evidence does not establish
conspiracy among them.
The presence or absence of the elements of the crime, however, is
evidentiary in nature and is a matter of defense, the truth of which can be
best passed upon after a full-blown trial on the merits. [15] The same applies
to the alleged absence of any conspiracy between the accused.
This Court, moreover, has maintained a consistent policy of noninterference in the determination of the Ombudsman regarding the
existence of probable cause, provided there is no grave abuse in the
exercise of such discretion. [16] In a recent decision, [17] this Court,
quoting Young vs. Office of the Ombudsman,[18] stated the rationale for this
rule:
... The rule is based not only upon respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of the
court will be grievously hampered by innumerable petitions assailing the
dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, in much the same
way that the courts would be extremely swamped if they could be

compelled to review the exercise of discretion on the part of the fiscals or

prosecuting attorneys each time they decide to file an information in court
or dismiss a complaint by a private complainant.
Petitioners have failed to establish any such abuse on the part of the
Ombudsman.
III
Petitioners next question the jurisdiction of the Sandiganbayan. They
contend that Mayor Rodrigo occupies a position of Grade 24 and is,
therefore,
beyond
the
original
and
exclusive
jurisdiction
of
theSandiganbayan.
Before the passage of Republic Act No. 7975[19] on 30 March 1995, the
pertinent portions of section 4 of Presidential Decree No. 1606, [20] as
amended by Presidential Decree No. 1861,[21] read as follows:
SEC. 4. Jurisdiction. The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees
in relation to their office, including those employed in government-owned
or controlled corporations, whether simple or complexed with other crimes,
where the penalty prescribed by law is higher than prision correccional or
imprisonment for six (6) years, or a fine of P6,000.00; PROVIDED,
HOWEVER, that offenses or felonies mentioned in this paragraph where the
penalty prescribed by law does not exceed prision correccional or
imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the
proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court
and Municipal Circuit Trial Court.
xxx.
Section 2 of R.A. No. 7975 subsequently redefined the jurisdiction of
the Anti-Graft Court such that the pertinent portions of Section 4 of P.D. No.
1606 now reads:
Sec. 4. Jurisdiction. -- the Sandiganbayan shall exercise original jurisdiction
in all cases involving:

14

a. Violations of Republic Act No. 3019, as amended, otherwise known as

the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII of the Revised Penal Code, where one or
more of the principal accused are officials occupying the following positions
in the government, whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:

(5) All other national and local officials classified as Grade 27 and higher
under the Compensation and Position Classification Act of 1989.

(1) Officials of the executive branch occupying the positions of regional

director and higher, otherwise classified as grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:

c. Civil and criminal cases filed pursuant to and in connection with

Executive Order Nos. 1, 2, 14 and 14-A.

(a) Provincial governors, vice-governors, members of the sangguniang

panlalawigan and provincial treasurers, assessors, engineers, and other
provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads.
(c) Officials of the diplomatic service occupying the position of consul and
higher;
(d) Philippine army and air force colonels, naval captains, and all officers of
higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations;
(2) Members of Congress and officials thereof classified as Grade 27 and
up under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairmen and members of Constitutional Commissions, without
prejudice to the provisions of the Constitution; and

b. Other offenses or felonies committed by the public officials and

employees mentioned in subsection (a) of this section in relation to their
office.

In cases where none of the principal accused are occupying positions

corresponding to salary grade 27 or higher, as prescribed in the said
Republic Act No. 6758, or PNP officers occupying the rank of
superintendent or higher, or their equivalent, exclusive jurisdiction thereof
shall be vested in the proper Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be,
pursuant to their respective jurisdictions as provided in Batas Pambansa
Blg. 129.
xxx
Then Associate, now Chief Justice, Hilario Davide explained the effects
of these amendments in People vs. Magallanes:[22]
As a consequence of these amendments, the Sandiganbayan partly
lost its exclusive original jurisdiction in cases involving violations of R.A.
No. 3019, as amended,[23] as amended; R.A. No. 1379,[24]and Chapter II,
Section 2, Title VII of the Revised Penal Code, [25] it retains only cases where
the accused are those enumerated in subsection a, Section 4 above and,
generally, national and local officials classified as Grade 27 and higher
under the Compensation and Position Classification Act of 1989 (R.A. No.
6758). Moreover, its jurisdiction over other offenses or felonies committed
by public officials and employees in relation to their office is no longer
determined by the prescribed penalty, viz., that which is higher
than prision correccional or imprisonment for six years or a fine
of P6,000.00; it is enough that they are committed by those public officials
and employees enumerated in subsection a, Section 4 above. However, it
retains its exclusive original jurisdiction over civil and criminal cases filed
pursuant to or in connection with E.O. Nos. 1, [26] 2,[27] 14,[28] and 14-A.[29]
The apparent intendment of these amendments is to ease the dockets
of the Sandiganbayan and to allow the Anti-Graft Court to focus its efforts
on the trial of those occupying higher positions in government, the
proverbial big fish. Section 4, as amended, freed the Sandiganbayan from
the task of trying cases involving lower-ranking government officials,
imposing such duty upon the regular courts instead. The present structure
is also intended to benefit these officials of lower rank, especially those
residing outside Metro Manila, charged with crimes related to their office,

15

who can ill-afford the expenses of a trial in Metro Manila. As the

Explanatory Note of House Bill No. 9825[30] states:

No. 6758,[31] otherwise known as the Compensation and Position

Classification Act of 1989, lists the following positions under Salary Grade
27, including the position of Municipal Mayor I:

One is given the impression that only lowly government workers or the socalled small fry are expediently tried and convicted by
the Sandiganbayan. The reason for this is that at present,
the Sandiganbayanhas the exclusive and original jurisdiction over graft
cases committed by all officials and employees of the government,
irrespective of rank and position, from the lowest-paid janitor to the highlyplaced government official. This jurisdiction of the Sandiganbayan must be
modified in such a way that only those occupying high positions in the
government and the military (the big fishes) may fall under its
exclusive and original jurisdiction. In this was, the Sandiganbayan can
devote its time to big time cases involving the big fishes in the
government. The regular courts will be vested with the jurisdiction of cases
involving less-ranking officials (those occupying positions corresponding to
salary grade twenty-seven (27) and below and PNP members with a rank
lower than Senior Superintendent. This set-up will prove more convenient
to people in the provinces. They will no longer have to travel to Manila to
file their complaint or to defend themselves. They can already file their
complaint or their defense before the Regional Trial Court or the Municipal
Trial Court in their respective localities, as the case may be.

(5) All other national and local officials classified as Grade 27 and higher
under the Compensation and Position Classification Act of 1989.

Assistant Commissioner of Internal Revenue

Assistant Regional Cabinet Secretary
Assistant Regional Executive Secretary
Board Member I
Chairman, Police Regional Appellate Board
Chief of Mission, Class II
City Government Department Head III
City Trial Court Judge
Clerk of the Commission
Commission Member I
Court Attorney VI
Court of Appeals Reporter II
Deputy Administrator I
Deputy Commissioner I
Deputy Executive Director III
Deputy Insurance Commissioner
Director III
Executive Clerk of Court II
Executive Director II
Government Corporate Attorney III
Graft Investigation Officer II
Municipal Mayor I
Professor IV
Project Manager III
Prosecutor II
Provincial Agrarian Reform Adjudicator
Public Attorney IV
Regional Treasurer
Register of Deeds IV
Sangguniang Panlalawigan Member
Sangguniang Panlungsod Member II
Scientist II
Solicitor II
Special Prosecution Officer II
State Counsel IV
SUC President I
SUC Vice-President III

Such a catchall is necessary, for it would be impractical, if not impossible,

for Congress to list down each position created or will be created
pertaining to Grades 27 and above.

Earlier, in the 1989 version of the same Index, the Municipal Mayor was
also assigned a Salary Grade of 27. It appears, therefore, that petitioner
Mayor comes within the exclusive and original jurisdiction of the
Sandiganbayan.

At present, Volume III of the 1997 edition of the Index of Occupational

Services, Position Titles and Salary Grades, which was prepared by the
Department of Budget and Management (DBM) pursuant to Republic Act

Petitioners, however, claim that at the time of the commission of the

alleged crime on or about 2 September 1992, Mayor Rodrigo, the highest

To distinguish the big fish from the small fry, Congress deemed the
27th Grade as the demarcation between those who should come under the
jurisdiction of the Sandiganbayan and those within the regular
courts. (While H.B. No. 9825 originally intended only officials of Grade 28
and above as within the exclusive and original jurisdiction of the
Sandiganbayan, the resulting law included officials of Grade 27.) Thus,
officials occupying positions of Grade 27 and above, charged with crimes
referred to in Section 4 a. and b., are within the original and exclusive
jurisdiction of the Sandiganbayan; those below come under the jurisdiction
of the regular courts.
Although some positions of Grade 27 and above are stated by name in
Section 4 a., the position of Municipal Mayor is not among
them. Nevertheless, Congress provided a catchall in Section 4 a. (5), thus:

16

public ranking public official impleaded in this case, was receiving a

monthly salary of P10,441.00. Such amount 6758 is supposedly equivalent
to a fourth step increment in Grade 24 under the Salary Schedule
prescribed in Section 7 of R.A. No. 6758: *
SEC. 7. Salary Schedule. The Department of Budget and Management is
hereby directed to implement the Salary Schedule prescribed below:
Salary Schedule
Grade
Xxx
24

Includ[ing] all classes of positions which, although different with respect to

kind or subject matter of work, are sufficiently equivalent as to level of
difficulty and responsibilities and level of qualification requirements of the
work to warrant the inclusion of such classes of positions within one range
of basic compensation.[33]
The Grade is therefore a means of grouping positions sufficiently
equivalent as to level of difficulty and responsibilities and level of
qualification requirements of the work so that they may be lumped
together in one range of basic compensation.
Thus, Congress, under Section 8 of R.A. No. 6758, fixed the Salary
Grades[34] of officials holding constitutional positions, as follows:

Xxx
Petitioners conclude that Mayor Rodrigo, at the time of the commission of
the alleged crime, was occupying a Grade 24 position and, thus, not within
the Sandiganbayans original and exclusive jurisdiction, as defined in
Section 2 of R.A. No. 7975.
This is a simplistic, and altogether incorrect, interpretation of the law.
Section 5, Article IX-C of the Constitution provides that:
The Congress shall provide for the standardization of compensation of
government officials and employees, including those in government-owned
or controlled corporation with original charters, taking into account the
nature of the responsibilities pertaining to, and the qualifications required
for their positions.
This provision is not unique to the 1987 Constitution. The 1973
Constitution, in Section 6, Article XII thereof, contains a very similar
provision pursuant to which then President Marcos, in the exercise of his
legislative powers, issued Presidential Decree No. 985. [32]
However, with the advent of the new Constitution, and in compliance
therewith, Congress enacted R.A. No. 6758. Section 2 thereof declares it
the policy of the State to provide equal pay for substantially equal work
and to base differences in pay upon substantive differences in duties and
responsibilities, and qualification requirements of the positions."
To give life to this policy, as well as the constitutional prescription to
(take) into account the nature of the responsibilities pertaining to, and the
qualifications required for the positions of government officials and
employees, Congress adopted the scheme employed in P.D. No. 985 for
classifying positions with comparable responsibilities and qualifications for
the purpose of according such positions similar salaries. This scheme is
known as the Grade, defined in P.D. No. 985 as:

SEC. 8. Salaries of Constitutional Officials and their Equivalent. Pursuant to

Section 17, Article XVIII of the Constitution, the salary of the following
officials shall be in accordance with the Salary Grades indicated hereunder:
S
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17

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18

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19

er
Ar
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The Department of Budget and Management is hereby authorized to

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

(6) kind of supervision exercised;

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

For
For
Provinces Municip
/Cities
alities
Speci 100%
al
Cities
1stCla 100%
90%
ss
2ndCl 95%
85%
ass
3rdCl 90%
80%
ass
4thCl 85%
75%
ass
5thCl 80%
70%
ass
6thCl 75%
65%
ass

(3) the kind of supervision received;

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

SEC. 19. Funding Source. The funding sources for the amounts necessary
to implement this Act shall be as follows:

(5) nature and extent of internal and external relationships;

20

(a) x x x
(b) For local government units, the amount shall be charged against their
respective funds. Local government units which do not have adequate or
sufficient funds shall only partially implement the established rates as may
be approved by the Joint Commission under Section 8 of Presidential
Decree No. 1188: Provided, That any partial implementation shall be
uniform and proportionate for all positions in each local government
unit: Provided further, That savings from National Assistance to Local
Government Units (NALGU) funds may be used for this purpose.
x x x. (Underscoring supplied.)
Thus, a local government officials actual salary may be less than what
the Salary Schedule under Section 7 prescribes, depending on the class
and financial capability of his or her respective local government unit. This
circumstance, however, has no bearing on such officials Grade. As the
foregoing discussion shows, on officials salary is determined by the
Grade accorded his position, andultimately by the nature of his
position the level of difficulty and responsibilities and level of qualification
requirements of the work. To give credence to petitioners argument that
Mayor Rodrigos salary determines his Grade would be to misconstrue the
provisions of R.A. No. 6758, and ignore the constitutional and statutory
policies behind said law.
Petitioner mayors position having been classified as Grade 27 in
accordance with R.A. No. 6758, and having been charged with violation of
Section 3 (e) of R.A. No. 3019, petitioner is subject to the jurisdiction of the
Sandiganbayan, as defined by Section 4 a. of P.D. No. 1606, as amended
by Section 2 of R.A. No. 7975. By virtue of the same Section 4 a., as
amended, his co-accused are also subject to the Anti-Graft Courts
jurisdiction.
WHEREFORE, the petition is hereby DISMISSED and the Temporary
Restraining Order issued by this Court on 28 August 1996 LIFTED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, and Pardo, JJ., concur.

21

"That on or about June 12, 1989, in the Municipality of

Sindangan, Zamboanga del Norte, and within the
jurisdiction of this Honorable Court, accused Crescente Y.
Llorente, Jr., Municipal Mayor of Sindangan, Zamboanga del
Norte and P/Sgt. Juanito Cadoverde of the defunct
Integrated National Police and as such public officers and
the other accused Jose Dy, a private individual, conspiring
with each other and acting with evident bad faith, did then
and there, willfully, unlawfully and criminally seized (sic)
930 sawn knockdown wooden boxes owned by Godofredo
M. Diamante without any search and seizure warrant and
without issuing any receipt of seizure thereby causing
undue damage and injury to said Godofredo M. Diamante
and this offense was committed in relation to the office of
the said public officers.
"CONTRARY TO LAW.
"Manila, August 6, 1993.
[G.R. Nos. 122297-98. January 19, 2000]
CRESCENTE Y. LLORENTE, JR., petitioner, vs. SANDIGANBAYAN and
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
PARDO, J.:
The case before the Court is a special civil action for certiorari[1] assailing
the jurisdiction of the Sandiganbayan over the criminal cases against then
municipal mayor Crescente Y. Llorente, Jr. for violations of Republic Act No.
3019, as amended.
Petitioner Crescente Y. Llorente, Jr. was elected municipal mayor of
Sindangan, Zamboanga in 1988 and 1992. On May 8, 1995, he was a
candidate for congressman, second district of Zamboanga del Norte, and
was duly elected.
On August 6, 1993, the Office of the Special Prosecutor[2] filed with the
Sandiganbayan an information[3] against Crescente Y. Llorente, Jr.,
municipal mayor of Sindangan, Zamboanga del Norte, P/Sgt. Juanito
Caboverde and Jose Dy for violation of Section 3 (e), Republic Act No. 3019,
as amended, committed as follows:

(s/t) GUALBERTO J. DE LA LLANA

"Special Prosecution Officer III"[4]
On February 2, 1994, the three accused were arraigned before the
Sandiganbayan and pleaded not guilty.
On March 31, 1995, the Office of the Ombudsman [5] filed with the
Sandiganbayan another information[6] against petitioner for violation of
Section 3 (f), Republic Act No. 3019, as amended, committed as follows:
"That on or about July 5, 1993, and for sometime
subsequent thereto, in Sindangan, Zamboanga del Norte,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer, being
then the Municipal Mayor of Sindangan, Zamboanga del
Norte, with grave abuse of authority, did then and there
wilfully, unlawfully and criminally refuse to issue Mayors
permit to the ice plant and resawmill/box factory of R. F.
Diamante and family, without sufficient justification, after
due demand and payment of license fees were made, said
refusal to grant Mayors permit being not only personal but
for the purpose of giving undue advantage to similar
businesses in town and as an act of discriminating against
the interest of the complainant to the latters damage and
prejudice.

22

"CONTRARY TO LAW.

"(e) PNP chief superintendent and PNP officers of higher

rank;

"Manila, Philippines, March 31, 1995

"(s/t) DANIEL B. JOVACON, JR.
"Special Prosecution Officer I"[7]
The trial of both criminal cases before the Sandiganbayan has not begun.
On May 16, 1995, Congress enacted Republic Act No. 7975, [8] amending
Section 4 of Presidential Decree No. 1606,[9] providing:
"SEC. 4. Jurisdiction The Sandiganbayan shall exercise
original jurisdiction in cases involving:
"a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices
Act, Republic Act 1379, and Chapter II, Section 2, Title VII
of the Revised Penal Code, where one or more of the
principal accused are officials occupying the following
positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission of
the offense:
"(1) Officials of the executive branch occupying the
positions of regional director or higher, otherwise classified
as Grade "27" and higher, of the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758),
specifically including:
"(a) Provincial governors, vice governors, members of
the sangguniang panlalawigan, and provincial treasurers,
assessors, engineers, and other provincial department
heads;
"(b) City mayors, vice mayors, members of
the sangguniang panglungsod, city treasurers, assessors,
engineers, and other city department heads;
"(c) Officials of the diplomatic service occupying the
position of consul and higher;
"(d) Philippine army and air force colonels, naval captains,
and all other officials of higher rank;

"(f) City and provincial prosecutors and their assistants,

and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
"(g) Presidents, directors, or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions of foundations.
"(2) Members of Congress and officials thereof classified as
Grade "27" and up under the Compensation and Position
Classification Act of 1989;
"(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
"(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and
"(5) All other national and local officials classified as Grade
"27" and higher under the Compensation and Position
Classification Act of 1989.
"b. Other offenses or felonies committed by the public
officials and employees mentioned in subsection (a) of this
section in relation to their office.
"c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-A.
"In cases where none of the principal accused are
occupying positions corresponding to salary grade "27" or
higher, as prescribed in the said Republic Act No. 6758, or
PNP officers occupying the rank of superintendent or
higher, or their equivalent, exclusive jurisdiction thereof
shall be vested in the proper Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court, and
Municipal Circuit Trial Court, as the case may be, pursuant
to their respective jurisdiction as provided in Batas
Pambansa Blg. 129."[10]

23

On July 10, 1995, petitioner filed with the Sandiganbayan, Third Division, a
motion to dismiss or transfer Criminal Case No. 19763 to the Regional Trial
Court, Sindangan, Zamboanga.

6758 and the Index of Occupational Services, Position Titles and Salary
Grades. An officials grade is not a matter of proof, but a matter of law
which the court must take judicial notice."[20]

On the same date, petitioner filed with the Sandiganbayan, First Division, a
motion to refer Criminal Case No. 22655 to the Regional Trial Court,
Sindangan, Zamboanga.

Section 444 (d) of the Local Government Code provides that "the municipal
mayor shall receive a minimum monthly compensation corresponding to
Salary Grade twenty-seven (27) as prescribed under Republic Act No. 6758
and the implementing guidelines issued pursuant thereto." Additionally,
both the 1989 and 1997 versions of the Index of Occupational Services,
Position Titles and Salary Grades list the municipal mayor under Salary
Grade 27.[21] Consequently, the cases against petitioner as municipal
mayor for violations of Republic Act No. 3019, as amended, are within the
exclusive jurisdiction of the Sandiganbayan.

Petitioner averred that the enactment of Republic Act No. 7975 divested
the Sandiganbayan of its jurisdiction over criminal cases against municipal
mayors for violations of Republic Act No. 3019, as amended, who receive
salary less than that corresponding to Grade 27, pursuant to the Index of
Occupational Services prepared by the Department of Budget and
Management (DBM).
On September 7, 1995, the Sandiganbayan, First Division
denied the
motion to refer Criminal Case No. 22655 to the Regional Trial Court. On
October 10, 1995, the Sandiganbayan denied petitioners motion for
reconsideration.[12]
[11]

WHEREFORE, we hereby DISMISS the consolidated petitions at bar, for

lack of merit.
No costs.
SO ORDERED.

On September 14, 1995, Sandiganbayan, Third Division [13] also denied the
motion to transfer Criminal Case No. 19763 to the Regional Trial Court.

Davide, Jr., C. J., (Chairman), Puno, Kapunan, and Ynares-Santiago,

JJ., concur.2

Hence, petitioner filed these petitions for certiorari.[14]

On December 27, 1995, the Court consolidated the two cases. [15]
On February 23, 1997, Congress enacted Republic Act No. 8249, an act
redefining the jurisdiction of Sandiganbayan.[16]
On September 1, 1999, we gave due course to the petitions. [17]
The issue raised in these two cases is whether or not Republic Act No. 7975
divested the Sandiganbayan of its jurisdiction over violations of Republic
Act No. 3019, as amended, against municipal mayors.
We have resolved this issue in recent cases ruling that the Sandiganbayan
has jurisdiction over violations of Republic Act No. 3019, as amended,
against municipal mayors.[18]
There is no merit to petitioners averment that the salary received by a
public official dictates his salary grade. "On the contrary, it is the officials
grade that determines his or her salary, not the other way around." [19] "To
determine whether the official is within the exclusive jurisdiction of the
Sandiganbayan, therefore, reference should be made to Republic Act No.

24

G.R. No. 123169 November 4, 1996

DANILO E. PARAS, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION

FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula,
Cabanatuan City who won during the last regular barangay election in
1994. A petition for his recall as Punong Barangay was filed by the
registered voters of the barangay. Acting on the petition for recall, public
respondent Commission on Elections (COMELEC) resolved to approve the
petition, scheduled the petition signing on October 14, 1995, and set the
recall election on November 13,
1995. 1 At least 29.30% of the registered voters signed the petition, well
above the 25% requirement provided by law. The COMELEC, however,
deferred the recall election in view of petitioner's opposition. On December
6, 1995, the COMELEC set anew the recall election, this time on December
16, 1995. To prevent the holding of the recall election, petitioner filed
before the Regional Trial Court of Cabanatuan City a petition for injunction,
docketed as SP Civil Action No. 2254-AF, with the trial court issuing a
temporary restraining order. After conducting a summary hearing, the trial
court lifted the restraining order, dismissed the petition and required
petitioner and his counsel to explain why they should not be cited for
contempt for misrepresenting that the barangay recall election was without
COMELEC approval. 2
In a resolution dated January 5, 1996, the COMELEC, for the third time, rescheduled the recall election an January 13, 1996; hence, the instant
petition for certiorari with urgent prayer for injunction. On January 12,
1996, the Court issued a temporary restraining order and required the
Office of the Solicitor General, in behalf of public respondent, to comment
on the petition. In view of the Office of the Solicitor General's manifestation
maintaining an opinion adverse to that of the COMELEC, the latter through
its law department filed the required comment. Petitioner thereafter filed a
reply. 3
EN BANC

Petitioner's argument is simple and to the point. Citing Section 74 (b) of

Republic Act No. 7160, otherwise known as the Local Government Code,

25

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

statute or provision being construed is defeated, or as otherwise

expressed, nullified, destroyed, emasculated, repealed, explained away, or
rendered insignificant, meaningless, inoperative or nugatory. 6
It is likewise a basic precept in statutory construction that a statute should
be interpreted in harmony with the Constitution. 7 Thus, the interpretation
of Section 74 of the Local Government Code, specifically paragraph (b)
thereof, should not be in conflict with the Constitutional mandate of
Section 3 of Article X of the Constitution to "enact a local government code
which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization
with effective mechanism of recall, initiative, and referendum . . . ."

The subject provision of the Local Government Code provides:

Sec. 74. Limitations on Recall. (a) Any elective local
official may be the subject of a recall election only once
during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year
immediately preceding a regular local election.

Moreover, petitioner's too literal interpretation of the law leads to absurdity

which we cannot countenance. Thus, in a case, the Court made the
following admonition:
We admonish against a too-literal reading of the law as this
is apt to constrict rather than fulfill its purpose and defeat
the intention of its authors. That intention is usually found
not in "the letter that killeth but in the spirit that
vivifieth". . . 8

[Emphasis added]
It is a rule in statutory construction that every part of the statute must be
interpreted with reference to the context,i.e., that every part of the statute
must be considered together with the other parts, and kept subservient to
the general intent of the whole enactment. 4 The evident intent of Section
74 is to subject an elective local official to recall election once during his
term of office. Paragraph (b) construed together with paragraph (a) merely
designates the period when such elective local official may be subject of a
recall election, that is, during the second year of his term of office. Thus,
subscribing to petitioner's interpretation of the phrase regular local
election to include the SK election will unduly circumscribe the novel
provision of the Local Government Code on recall, a mode of removal of
public officers by initiation of the people before the end of his term. And if
the SK election which is set by R.A No. 7808 to be held every three years
from May 1996 were to be deemed within the purview of the phrase
"regular local election", as erroneously insisted by petitioner, then no recall
election can be conducted rendering inutile the recall provision of the Local
Government Code.
In the interpretation of a statute, the Court should start with the
assumption that the legislature intended to enact an effective law, and the
legislature is not presumed to have done a vain thing in the enactment of a
statute. 5 An interpretation should, if possible, be avoided under which a

The spirit, rather than the letter of a law determines its

construction; hence, a statute, as in this case, must be read
according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of the
local government unit necessitating additional expenses, hence the
prohibition against the conduct of recall election one year immediately
preceding theregular local election. The proscription is due to the proximity
of the next regular election for the office of the local elective official
concerned. The electorate could choose the official's replacement in the
said election who certainly has a longer tenure in office than a successor
elected through a recall election. It would, therefore, be more in keeping
with the intent of the recall provision of the Code to construe regular local
election as one referring to an election where the office held by the local
elective official sought to be recalled will be contested and be filled by the
electorate.
Nevertheless, recall at this time is no longer possible because of the
limitation stated under Section 74 (b) of the Code considering that the next
regular election involving the barangay office concerned is barely seven (7)
months away, the same having been scheduled on May 1997. 9

26

ACCORDINGLY, the petition is hereby dismissed for having become moot

and academic. The temporary restraining order issued by the Court on
January 12, 1996, enjoining the recall election should be as it is hereby
made permanent.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

G.R. No. 126576 March 5, 1997

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

HERMOSISIMA, JR., J.:

Before us on certiorari is a petition seeking to annul and set aside
Resolution No. 96-2951 1 dated October 15, 1996 issued by public
respondent Commission on Elections (COMELEC) which (1) approved the
Petition for Recall filed and signed by only one registered voter herein
private respondent Ma. Aurora Siccuan de Alban, against petitioner
incumbent Mayor Ricardo Angobung; (2) set the further signing of said
petition by the rest of the registered voters of Tumauini, Isabela on
November 9, 1996; and (3) in case the said petition is signed by at least
25% of the total number of registered votes in Tumauini, Isabela,
scheduled the recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining
Order 2 enjoining public respondent COMELEC from implementing and
enforcing Resolution No. 96-2951.
The facts of this case are not disputed.

27

Petitioner won as the duly elected Mayor of the Municipality of Tumauini,

Isabela in the local elections of 1995. He garnered 55% of all the votes
cast. Private respondent de Alban was also a candidate in said elections.
Sometime in early September, 1996, private respondent filed with the
Local Election Registrar of Tumauini, Isabela, a Petition for Recall 3 against
petitioner. On September 12, 1996, petitioner received a copy of this
petition. Subsequently said petition was forwarded to the Regional Office in
Tuguegarao, Cagayan and then to the main office of COMELEC in Manila,
for approval.
Acting on the petition, Deputy Executive Director for Operations Pio Jose
Joson submitted to the COMELEC En Banc, a Memorandum 4 dated October
8, 1996 recommending approval of the petition for recall filed by private
respondent and its signing by other qualified voters in order to garner at
least 25% of the total number of registered voters as required by Section
69(d) of the Local Government Code of 1991.
In turn acting on the abovementioned Memorandum of Deputy Executive
Director Joson, the COMELEC en bancissued the herein assailed Resolution
No. 96-2951.
Petitioner now attacks the aforementioned resolution as being
unconstitutional and therefore invalid, on two main grounds: (1) that the
resolution approved the Petition for Recall albeit same was signed by just
one person in violation of the statutory 25% minimum requirement as to
the number of signatures supporting any petition for recall; and (2) that
the resolution scheduled the recall election within one (1) year from the
May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent has sought the
lifting of the Temporary Restraining Order issued last October 25, 1996 on
the twin grounds (1) that the issue of the one-year bar on recall elections
has been resolved in the case of Paras v. COMELEC 5, promulgated on
November 4, 1996; and (2) that the procedure prescribed by Resolution No.
96-2951 involving petition signing upon initiation of even just one person,
is no different from that provided for in COMELEC Resolution No. 2272
which was upheld as constitutional in the 1991 cases of Sanchez, et
al. v. COMELEC6 and Evardone v. COMELEC 7.
Private respondent is correct in saying that in the light of our
pronouncement in Paras v. COMELEC 8, the recall election scheduled on
December 2, 1996 in the instant case cannot be said to be barred by the
May 12, 1997 Barangay Elections. In construing the meaning of the term,
"regular local election" in Section 74 of the Local Government Code of
1991 which provides that "no recall shall take place within one (1) year . . .

immediately preceding a regular local election," we ruled that for the time
bar to apply, the approaching regular local election must be one where the
position of the official to be recalled, is to be actually contested and filled
by the electorate. Thus, in the instant case where the time bar is being
invoked by petitioner mayor in view of the approaching Barangay Elections
in May 1997, there can be no application of the one year bar, hence no
invalidity may be ascribed to Resolution No. 96-2951 on this ground.
We, however, find petitioner's second ground to be impressed with merit.
Before the enactment of the 1991 Local Government Code, the recall of
public officials voted for in popular elections, was governed by Sections 54
to 59 of Batas Pambansa Blg. 337, otherwise known as the Local
Government Code of 1983. Pursuant to Section 59 thereof, which states
that "the Commission on Elections shall conduct and supervise the process
of and election on recall . . . and, in pursuance thereof, promulgate the
necessary rules and regulations," the COMELEC promulgated Resolution
No. 2272 Sections 4 and 5 of which provide as follows:
Sec. 4. How instituted. The recall of an elective
provincial, city or municipal official shall be commenced by
the filing of a duly verified notice of recall containing the
address and precinct number of the voter filing the notice,
and the name of the official sought to be recalled, his
position, and the ground(s) for the recall. Each notice shall
refer to only one official.
The notice shall be filed in triplicate with the local Election
Registrar if the recall involves a city or municipal official, or
with the Provincial Election Supervisor if it involves a
provincial official, one copy of which shall be posted upon
receipt thereof on the bulletin board in the city/municipal
hall.
If the recall involves a provincial official, two additional
copies of the notice shall also be furnished by the voter
filing the notice to the Election Registrar of each city and
municipality in the province, one copy of which shall be
posted upon receipt thereof on the bulletin board in the
city/municipal hall.
In every case, the voter filing the notice of recall shall
furnish a copy thereof to the official sought to be recalled,
the Commission on Elections in Manila and the Election
Records and Statistics Department of the Commission.

28

Sec. 5. Schedule and place of signing of the petition. The

Election Registrar shall submit to the Commission on
Elections, not later than ten days from filing of the notice of
recall, the schedule of the signing of the petition to recall
for approval and funding . . . 9
In the case of Sanchez v. COMELEC 10, petitioners therein contended that
the aforegoing "Resolution No. 2272 is unconstitutional there being no
legislative enactment yet on [the] mechanism of recall as mandated under
Sec. 3, Art. X of the Constitution". 11 It is true, as private respondent
asseverates, that we upheld the constitutionality of Resolution No. 2272,
but not because we found nothing constitutionally infirm about the
procedure of allowing the initiatory recall petition to be filed by only one
person. The issue in Sanchez was not this questioned procedure but the
legal basis for the exercise by the COMELEC of its rule-making power in the
alleged absence of a grant of such power by an enabling statute on recall.
Thus we ruled:
While it is true that Sec. 3, Art. X of the Constitution
mandates the Congress to enact a local government code
providing among others for an effective mechanism of
recall, nothing in said provision could be inferred the repeal
of BP 337, the local government code existing prior to the
adoption of the 1987 Constitution. Sec. 3, Art. X of the
Constitution merely provides that the local government
code to be enacted by Congress shall be "more responsive"
than the one existing at present. Until such time that a
more responsive and effective local government code is
enacted, the present code shall remain in full force and
effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws,
decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent
with this Constitution shall remain operative until
amended, repealed, or revoked.
Considering that the present local government code (BP
337) is still in effect, respondent COMELEC's promulgation
of Resolution No. 2272 is therefore valid and constitutional,
the same having been issued pursuant to Sec. 59 of BP
337. It reads:
Sec. 59. Supervision by the Commission on Elections.
The Commission on Elections shall conduct and supervise
the process of and election on recall . . . and, in pursuance
thereof, promulgate the necessary rules and regulations. 12

We reiterated the foregoing ruling in the case of Evardone v.

COMELEC 13 in this wise:
Article XVIII, Section 3 of the 1987 Constitution expressly
provides that all existing laws not inconsistent with the
1987 Constitution shall remain operative, until amended,
repealed or revoked. Republic Act No. 7160 providing for
the Local Government Code of 1991, approved by the
President on 10 October 1991, specifically repeals B.P. Blg.
337 as provided in Sec. 534, Title Four of said Act. But the
Local Government Code of 1991 will take effect only on 1
January 1992 and therefore the old Local Government Code
(B.P. Blg. 337) is still the law applicable to the present case.
xxx xxx xxx
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the
mechanism for recall of local elective officials. Section 59
expressly authorizes the respondent COMELEC to conduct
and supervise the process of and election on recall and in
the exercise of such powers, promulgate the necessary
rules and regulations. . . . Thus, pursuant to the rulemaking power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by
respondent COMELEC is valid and constitutional.
Consequently, the respondent COMELEC had the authority
to approve the petition for recall and set the date for the
signing of said petition. 14
In Sanchez and Evardone, the COMELEC-prescribed procedure of (1)
allowing the recall petition to be filed by at least one person or by less than
25% of the total number of registered voters and then (2) inviting voters to
sign said petition on a date set for that purpose, was never put to issue. As
this is the crux of the present constitutional challenge, the proper time has
come for this court to issue a definitive ruling on the matter.
Apropos for starters is the following chronicle of the evolution of the
mechanism of recall as a mode of removing a public officer by direct action
of the people, essayed in the case of Garcia v. COMELEC 15:
Recall is a mode of removal of a public officer by the
people before the end of his term of office. The people's
prerogative to remove a public officer is an incident of their
sovereign power and in the absence of constitutional

29

restraint, the power is implied in all governmental

operations. Such power has been held to be indispensable
for the proper administration of public affairs. Not
undeservedly, it is frequently described as a fundamental
right of the people in a representative democracy.
Recall as a mode of removal of elective local officials made
its maiden appearance in section 2 of Article XI entitled
Local Government, viz.:
Sec. 2. The Batasang Pambansa shall enact
a local government code which may not
thereafter be amended except by a
majority vote of all its Members, defining a
more responsive and accountable local
government structure with an effective
system of recall . . .
The Batasang Pambansa then enacted BP 337 entitled,
"The Local Government Code of 1983. Section 54 of its
Chapter 3 provided only one mode of initiating the recall
elections of local election officials, i.e., by petition of at
least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned . .
..
Our legal history does not reveal any instance when this
power of recall as provided by BP 337 was exercised by our
people.
In February, 1986, however, our people more than
exercised their right of recall for they resorted to revolution
and they booted out of office the highest elective officials
of the land. The successful use of people power to remove
public officials who have forfeited the trust of the
electorate led to its firm institutionalization of the 1987
Constitution. Its Article XIII expressly recognized the Role
and Rights of People's Organizations . . . .
Section 3 of its Article X also reiterated the mandate for
Congress to enact a local government code which "shall
provide for a more responsive and accountable local
government structure instituted through a system of
decentralization with effective mechanisms of recall,
initiative and referendum . . . . In response to this
constitutional call, Congress enacted R.A. 7160, otherwise

known as the Local Government Code of 1991, which took

effect on January 1, 1992." 16
Section 69 (d) of the Local Government Code of 1991 expressly provides
that "recall of any elective . . . municipal . . . official may also be validly
initiated upon petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit concerned during
the election in which the local official sought to be recalled was elected".
The law is plain and unequivocal as to what initiates recall proceedings:
only a petition of at least 25% of the total number of registered voters,
may validly initiate recall proceedings. We take careful note of the phrase,
"petition of at least twenty-five percent (25%)" and point out that the law
does not state that the petition must be signed by at least 25% of the
registered voters; rather, the petition must be "of" or by, at least 25% of
the registered voters, i.e., the petition must be filed, not by one person
only, but by at least 25% of the total number of registered voters. This is
understandable, since the signing of the petition is statutorily required to
be undertaken "before the election registrar or his representative, and in
the presence of a representative of the official sought to be recalled, and in
a public place in the . . . municipality . . . " 17. Hence, while the initiatory
recall petition may not yet contain the signatures of at least 25% of the
total number of registered voters, the petition must contain the names of
at least 25% of the total number of registered voters in whose behalf only
one person may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by a
number of people less than the foregoing 25% statutory requirement,
much less, the filing thereof by just one person, as in the instant case,
since this is indubitably violative of clear and categorical provisions of
subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice or
in a vacuum. They knew that this is the requirement under a majority of
the constitutions and recall statutes in various American states to the
same extent that they were aware of the rationale therefor. While recall
was intended to be an effective and speedy remedy to remove an official
who is not giving satisfaction to the electorate regardless of whether or not
he is discharging his full duty to the best of his ability and as his
conscience dictates 18 it is a power granted to the people who, in concert,
desire to change their leaders for reasons only they, as a collective, can
justify. In other words, recall must be pursued by the people, not just by
one disgruntled loser in the elections or a small percentage of
disenchanted electors. Otherwise, its purposes as a direct remedy of the
people shall be defeated by the ill motives of a few among them whose
selfish resort to recall would destabilize the community and seriously
disrupt the running of government.

30

A scrutiny of the rationale underlying the time bar provisions and the
percentage of minimum voter requirement in American recall statutes,
unmistakably reveals the vigilance of lawmakers against the abuse of the
power of recall. For instance, the Supreme Court of Illinois held in the case
of In Re Bower 19 that:
[t]he only logical reason which we can ascribe for requiring
the electors to wait one year before petitioning for a recall
election is to prevent premature action on their part in
voting to remove a newly elected official before having had
sufficient time to evaluate the soundness of his political
policies and decisions. We view the statutory provision
requiring the number of petition signers to equal at least
45% of the total votes case in the last general election for
mayor as a further attempt to insure that an official will not
have to defend his policies against frivolous attacks
launched by a small percentage of disenchanted
electors. 20
Along the same lines, the Supreme Court of Colorado held in the case
of Bernzen, v. City of Boulder 21 that:
[t]he framers, by requiring that a recall petition contain the
signatures of at least 25% of all votes cast in the last
election for all candidates for the position which the person
sought to be recalled occupies, assured that a recall
election will not be held in response to the wishes of a
small and unrepresentative minority. However, once at
least 25% of the electorate have expressed their
dissatisfaction, the constitution reserves the recall power
to the will of the electorate. 22
And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan
echoed the foregoing posturings in this wise:
Much of what has been said to justify a limit upon recall
clearly not provided or contemplated by the Constitution
has revealed fears about an irresponsible electorate . . . . A
much cited Nebraska case pertaining to a Nebraska recall
statute provides some answers which are equally
applicable to the Michigan constitutional right of recall:

Legislature apparently assumed that nearly

one-third of the electorate would not entail
upon the taxpayers the cost of an election
unless the charges made approved
themselves to their understanding and
they were seriously dissatisfied with the
services of the incumbent of the office. 24
In the instant case, this court is confronted with a procedure that is
unabashedly repugnant to the applicable law and no less such to the spirit
underlying that law. Private respondent who is a lawyer, knows that
Section 69 (d) of the Local Government Code plainly provides that recall is
validly initiated by a petition of 25% of the total number of registered
voters. Notwithstanding such awareness, private respondent proceeded to
file the petition for recall with only herself as the filer and initiator. She
claims in her petition that she has, together with many others in Tumauini,
Isabela, lost confidence in the leadership of petitioner. But the petition
does not bear the names of all these other citizens of Tumauini who have
reportedly also become anxious to oust petitioner from the post of mayor.
There is no doubt that private respondent is truly earnest in her cause, and
the very fact that she affixed her name in the petition shows that she
claims responsibility for the seeming affront to petitioner's continuance in
office. But the same cannot be said of all the other people whom private
respondent claims to have sentiments similar to hers. While the people are
vested with the power to recall their elected officials, the same power is
accompanied by the concomitant responsibility to see through all the
consequences of the exercise of such power, including rising above
anonymity, confronting the official sought to be recalled, his family, his
friends, and his supporters, and seeing the recall election to its ultimate
end. The procedure of allowing just one person to file the initiatory recall
petition and then setting a date for the signing of the petition, which
amounts to inviting and courting the public which may have not, in the first
place, even entertained any displeasure in the performance of the official
sought to be recalled, is not only violative of statutory law but also tainted
with an attempt to go around the law. We can not and must not, under any
and all circumstances, countenance a circumvention of the explicit 25%
minimum voter requirement in the initiation of the recall process.
WHEREFORE, premises considered, the PETITION FOR CERTIORARI is
hereby GRANTED. COMELEC Resolution No. 96-2951 is hereby DECLARED
NULL and VOID and accordingly SET ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made permanent.

. . . Doubtless the provision requiring 30

per cent of the electors to sign the petition
before the council [is] compelled to act was
designed to avoid such a contingency. The

Costs against private respondent.

SO ORDERED.

31

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Francisco, Panganiban and Torres, Jr., JJ., concur.

The facts are as follows:

Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor
of Pasay City in the May 11, 1998 elections. He assumed office on July 1,
1998.
Sometime during the second week of May 1999, the chairs of several
barangays in Pasay City gathered to discuss the possibility of filing a
petition for recall against Mayor Claudio for loss of confidence. On May 19,
1999, at the residence of barangay chair Benjamin Lim, Jr. in Barangay 11,
Zone 4, Pasay City, several barangay chairs formed an ad hoc committee
for the purpose of convening the PRA. Richard Advincula, private
respondent in G.R. No. 140560 and petitioner in G.R. No. 140714, was
designated chair.

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

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

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

chairs, kagawads, and sangguniang kabataan chairs of Pasay City, adopted
Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE THE RECALL
OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF
CONFIDENCE. In a letter dated June 29, 1999, Advincula, as chair of the
PRA, invited the Mayor, Vice-Mayor, Station Commander, and thirteen (13)
Councilors of Pasay City to witness the formal submission to the Office of
the Election Officer on July 2, 1999 of the petition for recall. Mesm
As scheduled, the petition for recall was filed on July 2, 1999, accompanied
by an affidavit of service of the petition on the Office of the City Mayor.
Pursuant to the rules of the COMELEC, copies of the petition were posted
on the bulletin boards of the local COMELEC office, the City Hall, the Police
Department, the public market at Libertad St. and Taft Avenue, and at the
entrance of the Sta. Clara Church on P. Burgos St., all in Pasay City.
Subsequently, a verification of the authenticity of the signatures on the
resolution was conducted by Ligaya Salayon, the election officer for Pasay
City designated by the COMELEC.
Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev.
Ronald Langub, and Roberto L. Angeles, alleging procedural and
substantive defects in the petition, to wit: (1) the signatures affixed to the
resolution were actually meant to show attendance at the PRA meeting; (2)
most of the signatories were only representatives of the parties concerned
who were sent there merely to observe the proceedings; (3) the convening
of the PRA took place within the one-year prohibited period; (4) the
election case,[2] filed by Wenceslao Trinidad in this Court, seeking the
annulment of the proclamation of petitioner Claudio as mayor of Pasay
City, should first be decided before recall proceedings against petitioner
could be filed; and (5) the recall resolution failed to obtain the majority of
all the members of the PRA, considering that 10 were actually double
entries, 14 were not duly accredited members of the barangays, 40

32

sangguniang kabataan officials had withdrawn their support, and 60

barangay chairs executed affidavits of retraction. Slx
In its resolution of October 18, 1999, the COMELEC granted the petition for
recall and dismissed the oppositions against it. On the issue of whether the
PRA was constituted by a majority of its members, the COMELEC held that
the 1,073 members who attended the May 29, 1999 meeting were more
than necessary to constitute the PRA, considering that its records showed
the total membership of the PRA was 1,790, while the statistics of the
Department of Interior and Local Government (DILG) showed that the total
membership of the PRA was 1,876. In either case, since only a majority is
required to constitute the PRA, clearly, a majority had been obtained in
support of the recall resolution. Based on the verification made by election
officer Ligaya Salayon, the COMELEC found the signatures of 958 members
of the PRA sufficient. On whether the pendency of the case questioning the
proclamation of petitioner was a prejudicial question which must first be
decided before any recall election could be held, the COMELEC ruled that it
was not and that petitioner was merely using the pendency of the case to
delay the recall proceedings. Finally, on whether the petition for recall
violated the bar on recall within one year from the elective official's
assumption of office, the COMELEC ruled in the negative, holding that
recall is a process which starts with the filing of the petition for
recall. Since the petition was filed on July 2, 1999, exactly one year and a
day after petitioner Claudio's assumption of office, it was held that the
petition was filed on time.
Hence, these petitions. Oral arguments were held in these cases in Baguio
City on April 4, 2000, after which the Court, by the vote of 8 to 6 of its
members,[3] resolved to dismiss the petition in G.R. No. 140560 for lack of
showing that the COMELEC committed a grave abuse of discretion. On the
other hand, the Court unanimously dismissed the petition in G.R. No.
140714 on the ground that the issue raised therein had become moot and
academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date
of the recall elections in Pasay City on April 15, 2000. Consequently, the
petition for mandamus in G.R. No. 140714 to compel the COMELEC to fix a
date for the recall elections in Pasay City is no longer tenable. We are thus
left with only petitioner Claudio's action for certiorari and prohibition.
The bone of contention in this case is 74 of the Local Government Code
(LCG)[4] which provides: Scslx

Limitations on Recall. - (a) Any elective local official may be

the subject of a recall election only once during his term of
office for loss of confidence.
(b) No recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year
immediately preceding a regular local election.
As defined at the hearing of these cases on April 4, 2000, the issues are:
WHETHER, under Section 74 of the Local Government Code
of 1991 (R.A. No. 7160) ...
A. The word "recall" in paragraph (b) covers a process
which includes the convening of the Preparatory Recall
Assembly and its approval of the recall resolution.
B. The term "regular local election" in the last clause of
paragraph (b) includes the election period for that regular
election or simply the date of such election.
(1)
On Whether the Word "Recall" in
Paragraph (b) of 74 of the Local
Government Code Includes the
Convening of the Preparatory Recall
Assembly and the Filing by it of a
Recall Resolution
Petitioner contends that the term "recall" in 74(b) refers to a process, in
contrast to the term "recall election" found in 74(a), which obviously refers
to an election. He claims that "when several barangay chairmen met and
convened on May 19, 1999 and unanimously resolved to initiate the recall,
followed by the taking of votes by the PRA on May 29, 1999 for the purpose
of adopting a resolution to initiate the recall of Jovito Claudio as Mayor of
Pasay City for loss of confidence, the process of recall began" and, since
May 29, 1999 was less than a year after he had assumed office, the PRA
was illegally convened and all proceedings held thereafter, including the
filing of the recall petition on July 2, 1999, were null and void. Slxsc
The COMELEC, on the other hand, maintains that the process of recall
starts with the filing of the petition for recall and ends with the conduct of
the recall election, and that, since the petition for recall in this case was
filed on July 2, 1999, exactly one year and a day after petitioner's

33

assumption of office, the recall was validly initiated outside the one-year
prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term "recall"
as used in 74 refers to a process. They disagree only as to when the
process starts for purposes of the one-year limitation in paragraph (b) of
74.
We can agree that recall is a process which begins with the convening of
the preparatory, recall assembly or the gathering of the signatures at least
25% of the registered voters of a local government unit, and then proceeds
to the filing of a recall resolution or petition with the COMELEC, the
verification of such resolution or petition, the fixing of the date of the recall
election, and the holding of the election on the scheduled date. [5] However,
as used in paragraph (b) of 74, "recall" refers to the election itself by
means of which voters decide whether they should retain their local official
or elect his replacement. Several reasons can be cited in support of this
conclusion.
First, 74 deals with restrictions on the power of recall. It is in fact entitled
"Limitations on Recall." On the other hand, 69 provides that "the power of
recall ...shall be exercised by the registered voters of a local government
unit to which the local elective official belongs." Since the power vested on
the electorate is not the power to initiate recall proceedings [6] but the
power to elect an official into office, the limitations in 74 cannot be
deemed to apply to the entire recall proceedings. In other words, the term
"recall" in paragraph (b) refers only to the recall election, excluding the
convening of the PRA and the filing of a petition for recall with the
COMELEC, or the gathering of the signatures of at least 25 % of the voters
for a petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan Province in
1993) or petitions for recall filed with the COMELEC - there is no legal limit
on the number of times such processes may be resorted to. These are
merely preliminary steps for the purpose of initiating a recall. The
limitations in 74 apply only to the exercise of the power of recall which is
vested in the registered voters. It is this - and not merely, the preliminary
steps required to be taken to initiate a recall - which paragraph (b) of 74
seeks to limit by providing that no recall shall take place within one year
from the date of assumption of office of an elective local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC where two
objections were raised against the legality of PRAs: (1) that even the power
to initiate recall proceedings is the sole prerogative of the electorate which
cannot be delegated to PRAs, and (2) that by vesting this power in a PRA,
the law in effect unconstitutionally authorizes it to shorten the term of
office of incumbent elective local officials. Both objections were dismissed
[7]

on the ground that the holding of a PRA is not the recall itself. With respect
to the first objection, it was held that it is the power to recall and not the
power to initiate recall that the Constitution gave to the people. With
respect to the second objection, it was held that a recall resolution "merely
sets the stage for the official concerned before the tribunal of the people
so he can justify why he should be allowed to continue in office. [But until]
the people render their sovereign judgment, the official concerned remains
in office . . . ." Sdaadsc
If these preliminary proceedings do not produce a decision by the
electorate on whether the local official concerned continues to enjoy the
confidence of the people, then, the prohibition in paragraph (b) against the
holding of a recall, except one year after the official's assumption of office,
cannot apply to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to recall
election is to be found in the purpose of the limitation itself. There are two
limitations in paragraph (b) on the holding of recalls: (1) that no recall shall
take place within one year from the date of assumption of office of the
official concerned, and (2) that no recall shall take place within one year
immediately preceding a regular local election.
The purpose of the first limitation is to provide a reasonable basis for
judging the performance of an elective local official. In
the Bower case[8] cited by this Court in Angobung v. COMELEC,[9] it was held
that "The only logical reason which we can ascribe for requiring the
electors to wait one year before petitioning for a recall election is to
prevent premature action on their part in voting to remove a newly elected
official before having had sufficient time to evaluate the soundness of his
policies and decisions." The one-year limitation was reckoned as of the
filing of a petition for recall because the Municipal Code involved in that
case expressly provided that "no removal petition shall be filed against any
officer or until he has actually held office for at least twelve months." But
however the period of prohibition is determined, the principle announced is
that the purpose of the limitation is to provide a reasonable basis for
evaluating the performance of an elective local official. Hence, in this case,
as long as the election is held outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before the end of the first
year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated before
the official concerned has been in office for one-year would be to allow him
to be judged without sufficient basis. As already stated, it is not the holding
of PRA nor the adoption of recall resolutions that produces a judgment on
the performance of the official concerned; it is the vote of the electorate in
the Election that does. Therefore, as long as the recall election is not held

34

before the official concerned has completed one year in office, he will not
be judged on his performance prematurely.Rtcspped
Third, to construe the term "recall" in paragraph (b) as including the
convening of the PRA for the purpose of discussing the performance in
office of elective local officials would be to unduly restrict the constitutional
right of speech and of assembly of its members. The people cannot just be
asked on the day of the election to decide on the performance of their
officials. The crystallization and formation of an informed public opinion
takes time. To hold, therefore, that the first limitation in paragraph (b)
includes the holding of assemblies for the exchange of ideas and opinions
among citizens is to unduly curtail one of the most cherished rights in a
free society. Indeed, it is wrong to assume that such assemblies will always
eventuate in a recall election. To the contrary, they may result in the
expression of confidence in the incumbent.
Our esteemed colleague Justice Puno says in his dissent that the purpose
of the one-year period in paragraph (b) is to provide the local official
concerned a "period of repose" during which "[his] attention should not be
distracted by any impediment, especially by disturbance due to political
partisanship." Unfortunately, the law cannot really provide for a period of
honeymoon or moratorium in politics. From the day an elective official
assumes office, his acts become subject to scrutiny and criticism, and it is
not always easy to determine when criticism of his performance is
politically motivated and when it is not. The only safeguard against the
baneful and enervating effects of partisan politics is the good sense and
self restraint of the people and its leaders against such shortcomings of our
political system. A respite from partisan politics may, have the incidental
effect of providing respite from partisanship, but that is not really the
purpose of the limitation on recall under the law. The limitation is only
intended to provide a sufficient basis for evaluating and judging the
performance of an elected local official.
In any event, it is argued that the judgments of PRAs are not "as politically
unassailable as recalls initiated directly by the people." Justice Puno cites
the "embarrassing repudiation by the people of [Kaloocan City's]
Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo,
they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing election
the local official whose recall is sought is actually reelected. Laws
converting municipalities into cities and providing for the holding of
plebiscites during which the question of cityhood is submitted to the
people for their approval are not always approved by the people. Yet, no
one can say that Congress is not a good judge of the will of the voters in

the locality. In the case of recall elections in Kaloocan City, had it been
shown that the PRA was resorted to only because those behind the move
to oust the incumbent mayor failed to obtain the signatures of 25% of the
voters of that city to a petition for his recall, there may be some plausibility
for the claim that PRAs are not as good a gauge of the people's will as are
the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a local
government unit cannot be more representative of the sentiments of the
people than those initiated by PRAs whose members represent the entire
electorate in the local government unit. Voters who directly initiate recalls
are just as vulnerable to political maneuverings or manipulations as are
those composing PRAs. Korte
The other point regarding Justice Punos claim is that the question here is
not whether recalls initiated by 25% of the voters are better. The issue is
whether the one-year period of limitation in paragraph (b) includes the
convening of the PRA. Given that question, will convening the PRA outside
this period make it any more representative of the people, as the petition
filed by 25 % of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to the recall election
and not to the preliminary proceedings to initiate recall 1. Because 74 speaks of limitations on "recall" which, according to 69, is a
power which shall be exercised by the registered voters of a local
government unit. Since the voters do not exercise such right except in an
election, it is clear that the initiation of recall proceedings is not prohibited
within the one-year period provided in paragraph (b);
2. Because the purpose of the first limitation in paragraph (b) is to provide
voters a sufficient basis for judging an elective local official, and final
judging is not done until the day of the election; and
3. Because to construe the limitation in paragraph (b) as including the
initiation of recall proceedings would unduly curtail freedom of speech and
of assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than one
year after petitioner assumed office as mayor of that city, we hold that
there is no bar to its holding on that date.
(2)

35

On Whether the Phrase "Regular Local

Election" in the Same Paragraph (b) of
74 of the Local Government Code
includes the Election Period for that
Regular Election or Simply the Date of
Such Election
Petitioner contends, however, that the date set by the COMELEC for the
recall election is within the second period of prohibition in paragraph (b).
He argues that the phrase "regular local elections" in paragraph (b) does
not only mean "the day of the regular local election" which, for the year
2001 is May 14, but the election period as well, which is normally at least
forty five (45) days immediately before the day of the election. Hence, he
contends that beginning March 30, 2000, no recall election may be
held. Sclaw
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take place
within . . . one (1) year immediately preceding a regular local election."
Had Congress intended this limitation to refer to the campaign period,
which period is defined in the Omnibus Election Code, [10] it could have
expressly said so.
Moreover, petitioner's interpretation would severely limit the period during
which a recall election may be held. Actually, because no recall election
may be held until one year after the assumption of office of an elective
local official, presumably on June 30 following his election, the free period
is only the period from July 1 of the following year to about the middle of
May of the succeeding year. This is a period of only nine months and 15
days, more or less. To construe the second limitation in paragraph (b) as
including the campaign period would reduce this period to eight months.
Such an interpretation must be rejected, because it would devitalize the
right of recall which is designed to make local government units" more
responsive and accountable." Sclex
Indeed, there is a distinction between election period and campaign period.
Under the Omnibus Election Code, [11] unless otherwise fixed by the
COMELEC, the election period commences ninety (90) days before the day
of the election and ends thirty (30) days thereafter. Thus, to follow
petitioner's interpretation that the second limitation in paragraph (b)
includes the "election period" would emasculate even more a vital right of
the people.
To recapitulate the discussion in parts 1 and 2, 74 imposes limitations on
the holding of recall elections. First, paragraph (a) prohibits the holding of

such election more than once during the term of office of an elective local
official. Second, paragraph (b) prohibits the holding of such election within
one year from the date the official assumed office. And third, paragraph (b)
prohibits the holding of a recall election within one year immediately
preceding a regular local election. As succinctly stated in Paras v.
COMELEC,[12] "[p]aragraph (b) construed together with paragraph (a)
merely designates the period when such elective local official may be
subject to recall election, that is, during the second year of office."
(3)
On Whether the Recall RESOLUTION
was Signed by a Majority of the PRA
and Duly Verified
Petitioner alleges other grounds for seeking the annulment of the
resolution of the COMELEC ordering the holding of a recall election. He
contends that a majority of the signatures of the members of the PRA was
not obtained because 74 members did not really sign the recall resolution.
According to petitioner, the 74 merely signed their names on pages 94104 of the resolution to signify their attendance and not their concurrence.
Petitioner claims that this is shown by the word "Attendance" written by
hand at the top of the page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised for the
first time in this case. It was not raised before the COMELEC, in which the
claim made by petitioner was that some of the names in the petition were
double entries, that some members had withdrawn their support for the
petition, and that Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved before the petition for
recall could be given due course. The order of the COMELEC embodying
the stipulations of the parties and defining the issues to be resolved does
not include the issue now being raised by petitioner. Xlaw
Although the word "Attendance" appears at the top of the page, it is
apparent that it was written by mistake because it was crossed out by two
parallel lines drawn across it. Apparently, it was mistaken for the
attendance sheet which is a separate document. It is absurd to believe that
the 74 members of the PRA who signed the recall resolution signified their
attendance at the meeting twice. It is more probable to believe that they
signed pages 94-104 to signify their concurrence in the recall resolution of
which the pages in question are part.
The other point raised by petitioner is that the recall petition filed in the
COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it,
is not commissioned as notary public for Pasay City but for Makati City. As

36

in the case of the first claim, this issue was not raised before the COMELEC
itself. It cannot, therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the
petition in G.R. No. 140714 is DISMISSED for having been rendered moot
and academic.
SO ORDERED. MENDOZA, J
Davide, Jr., C.J., Bellosillo, Quisumbing, Buena, GonzagaReyes, and Ynares-Santiago, JJ., concur.
Melo, and Purisima, JJ., on leave.
Puno, J., see dissenting opinion.
Vitug, J., reiterate his separate opinion in the resolution of 5 Apr. 2000.
Kapunan, J., see attached separate and dissenting opinion.
Panganiban, J., joined the dissents of JJ. Puno and Kapunan. Xsc
Pardo, and De Leon, Jr., JJ., join the dissent of J. Puno.

FIRST DIVISION
WILFREDO M. CATU, A.C. No. 5738
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
ATTY. VICENTE G. RELLOSA,
Respondent. Promulgated:
February 19, 2008
x--------------------------------------------------x
RESOLUTION
CORONA, J.:

37

Complainant Wilfredo M. Catu is a co-owner of a lot [1] and the building

In his defense, respondent claimed that one of his duties as punong

erected thereon located at 959 San Andres Street, Malate, Manila. His

barangay was to hear complaints referred to the barangays Lupong

mother and brother, Regina Catu and Antonio Catu, contested the

Tagapamayapa. As such, he heard the complaint of Regina and Antonio

possession of Elizabeth C. Diaz-Catu [2] and Antonio Pastor[3] of one of the

against Elizabeth and Pastor. As head of the Lupon, he performed his task

units in the building. The latter ignored demands for them to vacate the

with utmost objectivity, without bias or partiality towards any of the

premises. Thus, a complaint was initiated against them in the Lupong

parties. The parties, however, were not able to amicably settle their

Tagapamayapa of

dispute and Regina and Antonio filed the ejectment case. It was then that

Barangay

723,

Zone

79

of

the

5th District

of

Manila[4] where the parties reside.

Elizabeth sought his legal assistance. He acceded to her request. He

handled her case for free because she was financially distressed and he

Respondent, as punong barangay of Barangay 723, summoned the

wanted to prevent the commission of a patent injustice against her.
parties to conciliation meetings.[5] When the parties failed to arrive at an
amicable settlement, respondent issued a certification for the filing of the

The complaint was referred to the Integrated Bar of the Philippines (IBP) for

appropriate action in court.

investigation, report and recommendation. As there was no factual issue to

thresh out, the IBPs Commission on Bar Discipline (CBD) required the

Thereafter, Regina and Antonio filed a complaint for ejectment against

parties to submit their respective position papers. After evaluating the
Elizabeth and Pastor in the Metropolitan Trial Court of Manila, Branch 11.
contentions of the parties, the IBP-CBD found sufficient ground to discipline
Respondent entered his appearance as counsel for the defendants in that
respondent.[7]
case. Because of this, complainant filed the instant administrative
complaint,[6] claiming that respondent committed an act of impropriety as a

According to the IBP-CBD, respondent admitted that, as punong

lawyer and as a public officer when he stood as counsel for the defendants

barangay, he presided over the conciliation proceedings and heard the

despite the fact that he presided over the conciliation proceedings

complaint

between the litigants as punong barangay.

Subsequently, however, he represented Elizabeth and Pastor in the

of

Regina

and

Antonio

against

Elizabeth

and

Pastor.

38

CANON
1.
A
LAWYER
SHALL
UPHOLD
THE
CONSTITUTION, OBEY
THE
LAWS
OF
THE
LAND, PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES. (emphasis supplied)

ejectment case filed against them by Regina and Antonio. In the course
thereof, he prepared and signed pleadings including the answer with

For these infractions, the IBP-CBD recommended the respondents

counterclaim, pre-trial brief, position paper and notice of appeal. By so

doing, respondent violated Rule 6.03 of the Code of Professional

suspension from the practice of law for one month with a stern warning
that the commission of the same or similar act will be dealt with more

Responsibility:
Rule 6.03 A lawyer shall not, after leaving
government service, accept engagement or employment
in connection with any matter in which he intervened
while in said service.

severely.[9] This was adopted and approved by the IBP Board of Governors.
[10]

We modify the foregoing findings regarding the transgression of

Furthermore, as an elective official, respondent contravened the
respondent as well as the recommendation on the imposable penalty.
prohibition under Section 7(b)(2) of RA 6713:[8]
SEC. 7. Prohibited Acts and Transactions. In
addition to acts and omissions of public officials and
employees now prescribed in the Constitution and existing
laws, the following shall constitute prohibited acts and
transactions of any public official ands employee and are
hereby declared to be unlawful:

RULE 6.03 OF THE CODE

OF
PROFESSIONAL
RESPONSIBILITY
APPLIES
ONLY
TO
FORMER GOVERNMENT
LAWYERS
Respondent cannot be found liable for violation of Rule 6.03 of the

xxx xxx xxx

(b) Outside employment and other activities related
thereto. Public officials and employees during their
incumbency shall not:

Code of Professional Responsibility. As worded, that Rule applies only to a

xxx xxx xxx

(2) Engage in the private practice of
profession
unless
authorized
by
the
Constitution or law, provided that such practice
will not conflict or tend to conflict with their official
functions; xxx (emphasis supplied)

in which he intervened while in said service. In PCGG v. Sandiganbayan,

According to the IBP-CBD, respondents violation of this prohibition

lawyer who has left government service and in connection with any matter

[11]

we ruled that Rule 6.03 prohibits former government lawyers from

accepting engagement or employment in connection with any matter in

which [they] had intervened while in said service.

constituted a breach of Canon 1 of the Code of Professional Responsibility:

39

Respondent was an incumbent punong barangay at the time he

committed the act complained of. Therefore, he was not covered by that
provision.

local government is accused of

committed in relation to his office;

an

offense

(3) Collect any fee for their appearance in

administrative proceedings involving the local
government unit of which he is an official; and
(4) Use property and personnel of the
Government except when the sanggunian member
concerned is defending the interest of the
Government.

SECTION
90
OF
RA
7160, NOT SECTION 7(B)
(2)
OF
RA
6713,
GOVERNS THE PRACTICE
OF
PROFESSION
OF
ELECTIVE
LOCAL
GOVERNMENT
OFFICIALS

(c) Doctors of medicine may practice their

profession even during official hours of work only
on occasions of emergency: Provided, That the
officials concerned do not derive monetary
compensation therefrom.

Section 7(b)(2) of RA 6713 prohibits public officials and employees,

This is a special provision that applies specifically to the practice of
during their incumbency, from engaging in the private practice of their
profession by elective local officials. As a special law with a definite scope
profession unless authorized by the Constitution or law, provided that such
(that is, the practice of profession by elective local officials), it constitutes
practice will not conflict or tend to conflict with their official functions. This
an exception to Section 7(b)(2) of RA 6713, the general law on engaging in
is the general law which applies to all public officials and employees.
the private practice of profession by public officials and employees. Lex
For

elective

local

government

officials,

Section

90

of

RA
specialibus derogat generalibus.[13]

7160[12] governs:
SEC. 90. Practice of Profession. (a) All governors,
city and municipal mayors are prohibited from practicing
their profession or engaging in any occupation other than
the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their
professions, engage in any occupation, or teach in
schools except during session hours: Provided,
That sanggunian members who are members of
the Bar shall not:
(1) Appear as counsel before any court in
any civil case wherein a local government unit or
any office, agency, or instrumentality of the
government is the adverse party;

Under RA 7160, elective local officials of provinces, cities,

municipalities and barangays are the following: the governor, the vice
governor and members of thesangguniang panlalawigan for provinces; the
city mayor, the city vice mayor and the members of the sangguniang
panlungsod for cities; the municipal mayor, the municipal vice mayor and
the members of the sangguniang bayan for municipalities and the punong

(2) Appear as counsel in any criminal case

wherein an officer or employee of the national or

40

barangay, the members of the sangguniang barangay and the members of

permission or authorization from any other person or office for any of these

the sangguniang kabataan for barangays.

purposes.

Of these elective local officials, governors, city mayors and

While, as already discussed, certain local elective officials (like

municipal mayors are prohibited from practicing their profession or

governors,

mayors,

provincial

engaging in any occupation other than the exercise of their functions as

expressly subjected to a total or partial proscription to practice their

local chief executives. This is because they are required to render full time

profession or engage in any occupation, no such interdiction is made on

service. They should therefore devote all their time and attention to the

the punong

performance of their official duties.

barangay.Expressio unius est exclusio alterius.[15] Since they are excluded

barangay and

board

the

members

members

and

of

councilors)

are

the sangguniang

from any prohibition, the presumption is that they are allowed to practice
On

the

other

hand,

members

of

the sangguniang
their profession. And this stands to reason because they are not mandated

panlalawigan, sangguniang

panlungsod or sangguniang

bayan may
to serve full time. In fact, the sangguniang barangay is supposed to hold

practice their professions, engage in any occupation, or teach in schools

regular sessions only twice a month.[16]
except during session hours. In other words, they may practice their
professions, engage in any occupation, or teach in schools outside their
session

hours.

mayors, members

Unlike governors, city

of

the sangguniang

mayors

and

Accordingly, as punong barangay, respondent was not forbidden to

municipal

practice his profession. However, he should have procured prior permission

panlalawigan, sangguniang

or authorization from the head of his Department, as required by civil

panlungsod or sangguniang bayan are required to hold regular sessions

service regulations.

only at least once a week.[14] Since the law itself grants them the authority
to practice their professions, engage in any occupation or teach in schools
outside session hours, there is no longer any need for them to secure prior

A
LAWYER
IN
GOVERNMENT SERVICE
WHO
IS
NOT
PROHIBITED
TO
PRACTICE LAW MUST
SECURE
PRIOR
AUTHORITY FROM THE

41

HEAD
OF
DEPARTMENT

HIS
The failure of respondent to comply with Section 12, Rule XVIII of the

A civil service officer or employee whose responsibilities do not require his

Revised Civil Service Rules constitutes a violation of his oath as a lawyer:

time to be fully at the disposal of the government can engage in the

to obey the laws. Lawyers are servants of the law, vires legis, men of the

private practice of law only with the written permission of the head of the

law. Their paramount duty to society is to obey the law and promote

department concerned.[17] Section 12, Rule XVIII of the Revised Civil Service

respect for it. To underscore the primacy and importance of this duty, it is

Rules provides:

enshrined as the first canon of the Code of Professional Responsibility.

Sec. 12. No officer or employee shall engage

directly
in
any private
business,
vocation,
or profession or be connected with any commercial,
credit, agricultural, or industrial undertaking without a
written permission from the head of the
Department: Provided, That this prohibition will be
absolute in the case of those officers and employees
whose duties and responsibilities require that their entire
time be at the disposal of the Government; Provided,
further, That if an employee is granted permission to
engage in outside activities, time so devoted outside of
office hours should be fixed by the agency to the end that
it will not impair in any way the efficiency of the officer or
employee: And provided, finally, that no permission is
necessary in the case of investments, made by an officer
or employee, which do not involve real or apparent
conflict between his private interests and public duties, or
in any way influence him in the discharge of his duties,
and he shall not take part in the management of the
enterprise or become an officer of the board of directors.
(emphasis supplied)

As punong barangay, respondent should have therefore obtained

In acting as counsel for a party without first securing the required written
permission, respondent not only engaged in the unauthorized practice of
law but also violated civil service rules which is a breach of Rule 1.01 of the
Code of Professional Responsibility:
Rule 1.01 A lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct.
(emphasis supplied)

For not living up to his oath as well as for not complying with the exacting
ethical standards of the legal profession, respondent failed to comply with
Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD
THE INTEGRITY AND THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR. (emphasis supplied)

the prior written permission of the Secretary of Interior and Local

Government before he entered his appearance as counsel for Elizabeth
and Pastor. This he failed to do.

Indeed, a lawyer who disobeys the law disrespects it. In so doing,

he disregards legal ethics and disgraces the dignity of the legal profession.

42

Public confidence in the law and in lawyers may be eroded by the

Office of the Court Administrator shall furnish copies to all the courts of the

irresponsible and improper conduct of a member of the bar. [18] Every lawyer

land for their information and guidance.

should act and comport himself in a manner that promotes public

SO ORDERED.

confidence in the integrity of the legal profession.[19]

A member of the bar may be disbarred or suspended from his

office as an attorney for violation of the lawyers oath [20] and/or for breach
of the ethics of the legal profession as embodied in the Code of
Professional Responsibility.
G.R. No. 105909 June 28, 1994
WHEREFORE,

respondent

Atty.

Vicente

G.

Rellosa

is

hereby

found GUILTY of professional misconduct for violating his oath as a lawyer

and Canons 1 and 7 and Rule 1.01 of the Code of Professional
Responsibility. He is therefore SUSPENDED from the practice of law for
a period of six months effective from his receipt of this resolution. He is
sternly WARNED that any repetition of similar acts shall be dealt with

MUNICIPALITY OF PILILLA, RIZAL, petitioner,

vs.
HON. COURT OF APPEALS, HON. ARTURO A. MARAVE, as Presiding
Judge, Regional Trial Court, Branch 78, Morong, Rizal, and
PHILIPPINE PETROLEUM CORPORATION, respondents.
Felix E. Mendiola for petitioner.
Makalintal, Barot, Torres & Ibarra for respondent Philippine Petroleum
Corporation.

more severely.

Respondent is strongly advised to look up and take to heart the meaning of

REGALADO, J.:
the word delicadeza.

Let a copy of this resolution be furnished the Office of the Bar Confidant
and entered into the records of respondent Atty. Vicente G. Rellosa. The

Petitioner questions and seeks the nullification of the resolution of

respondent Court of Appeals in CA-G.R. SP. No. 27504 dated March 31,
1992, dismissing the petition for having been filed by a private counsel, as
well as its succeeding resolution dated June 9, 1992, denying petitioner's
motion for reconsideration. 1

43

The records show that on March 17, 1989, the Regional Trial Court of Tanay,
Rizal, Branch 80, rendered judgment in Civil Case No. 057-T in favor of
plaintiff, now herein petitioner Municipality of Pililla, Rizal, against
defendant, now herein private respondent Philippine Petroleum Corporation
(PPC, for short), ordering therein defendant to pay said plaintiff (1) the
amount of P5,301,385.00 representing the tax on business due from the
defendant under Section 9(A) of Municipal Tax Ordinance No. 1 of said
municipality for the period from 1979 to 1983, inclusive, plus such amount
of tax as may accrue until final determination of the case; (2) storage
permit fee in the amount of P3,321,730.00 due from the defendant under
Section 10, paragraph Z(13)
(b-1-c) of the same municipal tax ordinance for the period from 1975 to
1986, inclusive, plus the amount of said fee that may accrue until final
determination of the case; (3) mayor's permit fee due from the defendant
under Section 10, paragraph (P) (2) of said municipal tax ordinance from
1975 to 1984, inclusive, in the amount of P12,120.00, plus such amount of
the same fee as may accrue until final determination of the case; (4)
sanitary inspection fee in the amount of P1,010.00 for the period from
1975 to 1984, plus the amount of this fee that may accrue until final
determination of the case; and (5) the costs of suit. 2
On June 3, 1991, in G.R. No. 90776 this Court affirmed the aforesaid
judgment, with the modification that business taxes accruing prior to 1976
are not to be paid by PPC because the same have prescribed, and that
storage fees are not also to be paid by PPC since the storage tanks are
owned by PPC and not by the municipality and, therefore, cannot be the
bases of a charge for service by the municipality. 3 This judgment became
final and executory on July 13, 1991 and the records were remanded to the
trial court for execution.
On October 14, 1991, in connection with the execution of said judgment,
Atty. Felix E. Mendiola filed a motion in behalf of plaintiff municipality with
the Regional Trial Court, Branch 78, Morong, Rizal* for the examination of
defendant corporation's gross sales for the years 1976 to 1978 and 1984
to 1991 for the purpose of computing the tax on business imposed under
the Local Tax Code, as amended. On October 21, 1991, defendant
corporation filed a manifestation to the effect that on October 18, 1991,
Pililla Mayor Nicomedes Patenia received from it the sum of
P11,457,907.00 as full satisfaction of the above-mentioned judgment of
the Supreme Court, as evidence by the release and quitclaim documents
executed by said mayor. Accordingly, on October 31, 1991 the court below
issued an order denying plaintiff municipality's motion for examination and
execution of judgment on the ground that the judgment in question had
already been satisfied. 4
Thereafter, on November 21, 1991 Atty. Mendiola filed a motion for
reconsideration of the court's aforesaid order of October 31, 1991, claiming

that the total liability of defendant corporation to plaintiff municipality

amounted to P24,176,599.00, while the amount involved in the release and
quitclaim executed by Mayor Patenia was only P12,718,692; and that the
said mayor could not waive the balance which represents the taxes due
under the judgment to the municipality and over which judgment the law
firm of Atty. Mendiola had registered two liens for alleged consultancy
services of 25% and attorneys' fees of 25% which, when quantified and
added, amount to more than P12 million.
On January 28,1992, the trial court denied the aforesaid motion for
reconsideration. 5
On February 18, 1992, Atty. Mendiola, again ostensibly in behalf of herein
petitioner municipality, filed a petition forcertiorari with us, which petition
we referred to the Court of Appeals for proper disposition and was
docketed therein as CA-G.R. SP No. 27504. 6 On March 2, 1992, respondent
PPC filed a motion questioning Atty. Mendiola's authority to represent
petitioner municipality. 7 Consequently, on March 31, 1992 respondent
Court of Appeals dismissed the petition for having been filed by a private
counsel in violation of law and jurisprudence, but without prejudice to the
filing of a similar petition by the Municipality of Pililla through the proper
provincial or municipal legal officer. 8 Petitioner filed a motion for
reconsideration which was denied by the Court of Appeals in its resolution
of June 9, 1992. 9
Petitioner is once again before us with the following assignment of errors:
1. It is an error for the Court of Appeals to consider private
respondent's new issue raised for the first time on appeal,
as it could no longer be considered on appeal, because it
was never been (sic) raised in the court below.
2. It is an error for the Court of Appeals in dismissing (sic)
the instant petition with alternative remedy of filing similar
petition as it is a departure from established jurisprudence.
3. It is an error for the Court of Appeals to rule that the
filing of the instant petition by the private counsel is in
violation of law and jurisprudence. 10
We find the present petition devoid of merit.
The Court of Appeals is correct in holding that Atty. Mendiola has no
authority to file a petition in behalf of and in the name of the Municipality
of Pililla. The matter of representation of a municipality by a private
attorney has been settled in Ramos vs. Court of Appeals, et al., 11 and
reiterated in Province of Cebu vs. Intermediate Appellate Court, et

44

al., 12 where we ruled that private attorneys cannot represent a province or

municipality in lawsuits.

who has declined to handle and prosecute its case in court, pursuant to
Section 1679 of the Revised Administrative Code. 17

Section 1683 of the Revised Administrative Code provides:

It is also significant that the lack of authority of herein counsel,

Atty. Mendiola, was even raised by the municipality itself in its comment
and opposition to said counsel's motion for execution of his lien, which was
filed with the court a quo by the office of the Provincial Prosecutor of Rizal
in behalf of said municipality. 18

Section 1683. Duty of fiscal to represent provinces and

provincial subdivisions in litigation. The provincial fiscal
shall represent the province and any municipality or
municipal district thereof in any court, except in cases
whereof original jurisdiction is vested in the Supreme Court
or in cases where the municipality or municipal district in
question is a party adverse to the provincial government or
to some other municipality or municipal district in the
same province. When the interests of a provincial
government and of any political division thereof are
opposed, the provincial fiscal shall act on behalf of the
province.
When the provincial fiscal is disqualified to serve any
municipality or other political subdivision of a province, a
special attorney may be employed by its council. 13
Under the above provision, complemented by Section 3, Republic Act No.
2264, the Local Autonomy Law, 14 only the provincial fiscal and the
municipal attorney can represent a province or municipality in their
lawsuits. The provision is mandatory. The municipality's authority to
employ a private lawyer is expressly limited only to situations where the
provincial fiscal is disqualified to represent it. 15
For the aforementioned exception to apply, the fact that the provincial
fiscal was disqualified to handle the municipality's case must appear on
record. 16 In the instant case, there is nothing in the records to show that
the provincial fiscal is disqualified to act as counsel for the Municipality of
Pililla on appeal, hence the appearance of herein private counsel is without
authority of law.
The submission of Atty. Mendiola that the exception is broad enough to
include situations wherein the provincial fiscal refuses to handle the case
cannot be sustained. The fiscal's refusal to represent the municipality is
not a legal justification for employing the services of private counsel.
Unlike a practicing lawyer who has the right to decline employment, a
fiscal cannot refuse to perform his functions on grounds not provided for by
law without violating his oath of office. Instead of engaging the services of
a special attorney, the municipal council should request the Secretary of
Justice to appoint an acting provincial fiscal in place of the provincial fiscal

The contention of Atty. Mendiola that private respondent cannot raise for
the first time on appeal his lack of authority to represent the municipality is
untenable. The legality of his representation can be questioned at any
stage of the proceedings. In the cases hereinbefore cited, 19 the issue of
lack of authority of private counsel to represent a municipality was only
raised for the first time in the proceedings for the collection of attorney's
fees for services rendered in the particular case, after the decision in that
case had become final and executory and/or had been duly executed.
Furthermore, even assuming that the representation of the municipality by
Atty. Mendiola was duly authorized, said authority is deemed to have been
revoked by the municipality when the latter, through the municipal mayor
and without said counsel's participation, entered into a compromise
agreement with herein private respondent with regard to the execution of
the judgment in its favor and thereafter filed personally with the court
below two pleadings
entitled and constitutive of a "Satisfaction of Judgment" and a "Release and
Quitclaim". 20
A client, by appearing personally and presenting a motion by himself, is
considered to have impliedly dismissed his lawyer. Herein counsel cannot
pretend to be authorized to continue representing the municipality since
the latter is entitled to dispense with his services at any time. Both at
common law and under Section 26, Rule 138 of the Rules of Court, a client
may dismiss his lawyer at any time or at any stage of the proceedings, and
there is nothing
to prevent a litigant from appearing before the court to conduct his own
litigation. 21
The client has also an undoubted right to compromise a suit without the
intervention of his lawyer. 22 Even the lawyers' right to fees from their
clients may not be invoked by the lawyers themselves as a ground for
disapproving or holding in abeyance the approval of a compromise
agreement. The lawyers concerned can enforce their rights in the proper
court in an appropriate proceeding in accordance with the Rules of Court,
but said rights may not be used to prevent the approval of the compromise
agreement. 23

45

The apprehension of herein counsel that it is impossible that the

municipality will file a similar petition, considering that the mayor who
controls its legislative body will not take the initiative, is not only
conjectural but without factual basis. Contrary to his pretensions, there is
presently a manifestation and motion pending with the trial court filed by
the aforesaid municipal mayor for the withdrawal of the "Satisfaction of
Judgment" and the "Release and Quitclaim"24 previously filed in the case
therein as earlier mentioned.
WHEREFORE, the petition at bar is DENIED for lack of merit and the
judgment of respondent Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

46

G.R. No. 99425 March 3, 1997

ANTONIO C. RAMOS, ROSALINDA M. PEREZ, NORMA C. CASTILLO
and BALIUAG MARKET VENDORS ASSOCIATION, INC., petitioners,
vs.
COURT OF APPEALS, HON. CAMILO O. MONTESA, JR., in his capacity
as Presiding Judge of the Regional Trial Court of Bulacan, Branch
19, and MUNICIPALITY OF BALIUAG, respondents.

PANGANIBAN, J.:
Who has the legal authority to represent a municipality in law-suits? If an
unauthorized lawyer represents a municipality what is the effect of his
participation in the proceedings? Parenthetically, does a motion to
withdraw the appearance of the unauthorized counsel have to comply with
Rule 15 of the Rules of Court regarding notice and hearing of motions?
These questions are answered by this Court in resolving this petition for
review under Rule 45 of the Rules of Court of the Decision 1 of public
respondent 2 in CA-G.R. SP No. 23594 promulgated on March 15, 1991,
which denied due course to and dismissed the petition therein. Also
assailed is the Resolution 3 of public respondent promulgated on May 9,
1991, which denied the motion for reconsideration for lack of merit.
The Facts
The facts as found by public respondent are undisputed, to with: 4
On April 18, 1990, petitioners Antonio C. Ramos, Rosalinda
M. Perez, Norma C. Castillo, and the Baliuag Market
Vendors Association, Inc. filed a petition before the court a
quo docketed as Civil Case No. 264-M-9 for the Declaration
of Nullity of Municipal Ordinances No. 91 (1976) and No. 7
(1990) and the contract of lease over a commercial arcade
to be constructed in the municipality of Baliuag, Bulacan.
On April 27, 1980, during the hearing on the petitioners'
motion for the issuance of preliminary injunction, was
issued by the court a quo on May 9, 1990.
Meanwhile, on May 3, 1990, the provincial Fiscal and the
Provincial Attorney, Oliviano D. Regalado, filed an Answer
in (sic) behalf of respondent municipality.

At the pre-trial conference scheduled on May 28, 1990,

Atty. Roberto B. Romanillos appeared, manifesting that he
was counsel for respondent municipality. On the same
date, and on June 15, 1990, respectively, Atty. Romanillos
filed a motion to dissolve injunction and a motion to admit
an Amended Answer with motion to dismiss.
On June 18, 1990, Provincial Attorney Oliviano D. Regalado
appeared as collaborating counsel of Atty. Romanillos. The
Provincial Fiscal did not appear. It was Atty. Romanillos who
submitted the Reply to petitioners' Opposition to
respondents' motion to dissolve injunction. It was also Atty.
Romanillos who submitted a written formal offer of
evidence on July 17, 1990 for respondent municipality.
During the hearing on August 10, 1990, petitioners
questioned the personality of Atty. Romanillos to appear as
counsel of (sic) the respondent municipality, which
opposition was reiterated on August 15, 1990, and was put
in writing in petitioners' motion of August 20, 1990 to
disqualify Atty. Romanillos from appearing as counsel for
respondent municipality and to declare null and void the
proceedings participated in and undertaken by Atty.
Romanillos.
Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint
motion dated August 22, 1990 stating, among others, that
Atty. Romanillos was withdrawing as counsel for
respondent municipality and that Atty. Regalado, as his
collaborating counsel for respondent municipality, is
adopting the entire proceedings participated in/undertaken
by Atty. Romanillos.
On September 19, 1990 respondent Judge issued the Order
now being assailed which, as already stated, denied
petitioners' motion to disqualify Atty. Romanillos as counsel
for respondent municipality and to declare null and void
the proceeding participated in by Atty. Romanillos; and on
the other hand, granted Atty. Regalado's motion "to
formally adopt the entire proceedings including the formal
offer of evidence". In support of his foregoing action,
respondent Judge reasoned:
"Petitioners" motion for the disqualification
of Atty. Romanillos as respondent
municipality's counsel is deemed moot and
academic in view of his withdrawal as

47

counsel of said municipality pursuant to a

joint motion dated August 22, 1990,
although he shall remain as counsel on
record of private respondent Kristi
Corporation. Atty. Oliviano Regalado under
the same joint motion moved for the
adoption of the entire proceedings
conducted by collaborating counsel, Atty.
Romanillos.
It is noted that Atty. Romanillos initially
entered his appearance as collaborating
counsel of the Provincial Prosecutor and
the Provincial Attorney when he filed a
motion to dissolve injunction under motion
dated May 30, 1990 and since then despite
his active participation in the proceedings,
the opposing counsel has never questioned
his appearance until after he made a
formal offer of evidence for the
respondents. The acquiescence of
petitioners' counsel of (sic) his appearance
is tantamount to a waiver and petitioners
are, therefore, estopped to question the
same. In all the pleadings made by Atty.
Romanillos, it was clearly indicated that he
was appearing as the collaborating counsel
of the Provincial Attorney Besides,
petitioners' counsel failed to submit their
comment and/or objection to the said joint
motion of respondents' counsel as directed
by the Court within the reglementary
period. By virtue of these circumstances,
all the proceedings attended to and
participated in by said collaborating
counsel is a fait accompli and the Court
finds no cogent justification to nullify the
same."
Petitioner's motion for reconsideration of the foregoing
Order was denied by respondent Judge in his Order dated
October 19, 1990, the second Order now being assailed.
Respondent Judge reiterated the observations which he
made in the Order of September 19, 1990 that Atty.
Romanillos, while actively handling the said case was
merely appearing as the collaborating counsel of both the
Provincial Prosecutor and the Provincial Attorney of
Bulacan; that Atty. Romanillos' appearance was "never

impugned by petitioners" and was only questioned after his

(Atty. Romanillos') submission of the formal offer of
evidence for respondent; and that therefore, said court
proceedings "is (sic) a fait accompli". Respondent Judge
went on to say that the declaration of nullity of said
proceedings and the re-taking of the same evidence by the
same parties is (sic) "apparently an exercise in futility". He
added that in the absence of untimely objection by
petitioners to Atty. Romanillos' appearance as the
collaborating counsel, petitioners are guilty of laches for
having slept on (sic) their rights and are estopped as their
acquiescence may be considered as waiver of such right.
Furthermore, according to respondent Judge, assuming that
the proceedings had been "tainted with frailness to render
the same legally objectionable", the same as been "legally
remedied" by its formal adoption upon motion of the
Provincial Attorney (sic), Atty. Regalado, who is not
disqualified to appear as counsel for the municipality of
Baliuag, for the reason that by virtue of Section 19 of R.A.
No. 5185 (The Decentralization Act of 1967), the authority
to act as legal officer/adviser for (sic) civil cases of the
province of Bulacan, of which the municipality of Baliuag is
a political subdivision, has been transferred from the
Provincial Fiscal (now Provincial Prosecutor) of Bulacan to
the Provincial Attorney thereof.
As earlier stated, the Court of Appeals dismissed the petition and denied
the motion for reconsideration. Hence this recourse.
The Issues
The issues raised by petitioners in their Memorandum are: 5
1) Under present laws and
jurisprudence, can a
municipality be
represented in a suit
against it by a private
counsel?
2) If not, what is the status
of the proceedings
undertaken by an
unauthorized private
counsel;

48

3) Can the provincial

attorney of a province act
as counsel of a municipality
in a suit;
4) Can the provincial
attorney adopt with legal
effect the proceedings
undertaken by an
unauthorized private
counsel of (sic) a
municipality;
5) May a court act on an
alleged motion which
violates Sections 4 and 5 of
Rule 15 and section 26,
Rule 128 of the Rules of
Court.
Petitioners contend that the assailed Decision which affirmed the Orders of
the trial court is void for being violative of the following laws: 6
VI-1 The respondent court
violated Section 1683 of
the Revised Administrative
Code; Section 3, paragraph
3 (a) of Republic Act No.
2264, otherwise known as
the Local Autonomy Act;
and Section 35, Book IV,
Title III, Chapter 12,
Administrative Code of
1987 (Executive Order No.
292) when it authorized
Atty. Oliviano D. Regalado,
the Provincial Attorney of
Bulacan, to appear as
counsel for respondent
Municipality of Baliuag.
VI-2 The respondent court
violated Section 1683 of
the Revised Administrative
Code; Section 3, paragraph
3 (a) of Republic Act No.
2264, otherwise known as

the Local Autonomy Act;

Section 35, Book IV, Title
III, Chapter 12, Executive
Order No. 292, otherwise
known as the
Administrative Code of
1987; and Article 1352 of
the New Civil Code, when it
denied the petitioners'
motion to declare the
proceedings undertaken or
participated in by said Atty.
Roberto B. Romanillos, as
private counsel of
respondent Municipality,
null and void.
VI-3 The respondent court
acted in excess of its
jurisdiction and in grave
abuse of discretion when it
acted and granted the
respondent's JOINT MOTION
dated August 22, 1990
(annex "H") which, as a
rule, is a mere worthless
piece of paper which the
respondent judge/court has
no authority to act upon,
considering that said
motion was filed in court in
patent violation of or
without complying with the
mandatory requirements
provided for by Sections 4
and of Rule 15 and Section
26 of Rule 138 of the Rules
of Court.
Public respondent did not give due course to the petition "because it does
not prima facie show justifiable grounds for the issuance
of certiorari." 7 Public respondent adds that: 8
Considering the foregoing jurisprudence, the logical
conclusion is that the Provincial Attorney of Bulacan has
now the authority to represent the municipality of Baliuag
in its law suits.

49

It follows that respondent Judge was correct in ruling in the

assailed Order of October 19, 1990 that even
assuming, arguendo, that the proceedings by the court a
quo which had been participated in by Atty. Romanillos are
legally objectionable, this was legally remedied by the
formal adoption by the provincial Attorney, Atty. Regalado,
of the said proceedings, considering that the provincial
attorney is not disqualified from representing the
municipality of Baliuag in civil cases.

Public respondent likewise found that the "joint motion does not partake of
the nature of an adversarial motion which would have rendered noncompliance with Sections 4 and 5 of Rule 15 of the Rules of Court fatal to
the motion." 9 It is to be emphasized that petitioners "sought the
disqualification of Atty. Romanillos . . . (Thus,) what petitioners had sought
to (be) achieve(d) in their said motion was in fact what Atty. Romanillos
had sought . . . in the joint motion dated August 22, 1990." 10

In the second place, the record discloses that Atty.

Romanillos had appeared as counsel for respondent
municipality of Baliuag in collaboration with the Provincial
Prosecutor and the Provincial Attorney , as shown in the
motion to dissolve injunction dated may 28, 1990 which
Atty. Romanillos had filed for respondent municipality.
Accordingly and pursuant to the aforecited provisions of
law, it cannot correctly be said that respondent Judge had
acted with grave abuse of discretion when he allowed Atty.
Romanillos to act as private counsel and Atty. Regalado,
Provincial Attorney of Bulacan, to appear as counsel for
respondent Municipality of Baliuag. Perforce, it also cannot
be correctly said that respondent Judge violated the
aforecited provisions when he denied petitioners' motion to
declare null and void the proceedings undertaken by and
participated in by Atty. Romanillos as private counsel of the
municipality of Baliuag.

is not meant to prohibit or prevent the Provincial Attorney

to act as legal adviser and legal officer for municipalities
and municipal districts because such interpretations would
be to say the least, absurd (sic). In this jurisdiction, a
province is composed of municipalities and municipal
districts, and therefore they are deemed included in the
provisions of Section 19 of Republic Act 5185. It is also
impractical and contrary to the spirit of the law to limit the
sphere of authority of the Provincial Attorney to the
province only. 11

At any rate, even granting, only for the sake of argument,

that Atty. Romanillos' appearance as counsel for the
municipality could not be legally authorized under the
aforesaid provisions of law, the fact that Atty. Regalado as
Provincial Attorney of Baliuag had formally adopted the
proceedings participated in by Atty. Romanillos as counsel
for the municipality of Baliuag had served, as already
stated, to cure such a defect.
Thirdly, We are likewise unable to see grave abuse of
discretion in respondent Judge's actuation in granting the
joint motion filed by Atty. Romanillos and Atty. Regalado for
the withdrawal of the former as private counsel of
respondent municipality, and the adoption by the latter of
the proceedings participated in/undertaken by the former,
including the formal offer of evidence submitted by the
former.

Respondent municipality submits that Section 19 of RA 5185

The different allegations boil down to three main issues: (1) Who is
authorized to represent a municipality in a civil suit against it? (2) What is
the effect on the proceedings when a private counsel represents a
municipality? Elsewise stated, may be the proceedings be validated by a
provincial attorney's adoption of the actions made by a private counsel?
(3) Does a motion of withdrawal of such unauthorized appearance, and
adoption of proceedings participated in by such counsel have to comply
with Sections 4 and 5 12 of Rule 15 of the Rules of Court?
The Court's Ruling
We affirm the Decision and Resolution of public respondent.
First Issue: Who is Authorized to Represent
a Municipality in its Lawsuits?
In the recent case of Municipality of Pililla, Rizal vs. Court of Appeals, 13 this
Court, through Mr. Justice Florenz D. Regalado, set in clear-cut terms the
answer to the question of who may legally represent a municipality in a
suit for or against it, thus: 14
. . . The matter of representation of a municipality by a
private attorney has been settled in Ramos vs.Court of
Appeals, et al., 15 and reiterated in Province of Cebu
vs. Intermediate Appellate Court, et al., 16where we ruled

50

that private attorneys cannot represent a province or

municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
Sec. 1683. Duty of fiscal to represent
provinces and provincial subdivisions in
litigation. The provincial fiscal shall
represent the province and any
municipality or municipal district thereof in
any court, except in cases whereof (sic)
original jurisdiction is vested in the
Supreme Court or in cases where the
municipality or municipal district in
question is a party adverse to the
provincial government or to some other
municipality or municipal district in the
same province. When the interests of a
provincial government and of any political
division thereof are opposed, the provincial
fiscal shall act on behalf of the province.
When the provincial fiscal is disqualified to
serve any municipality or other political
subdivision of a province a special attorney
may be employed by its council. 17
Under the above provision, complemented by Section 3,
Republic Act No. 2264, the Local Autonomy Law, 18only
provincial fiscal and the municipal attorney can represent a
province or municipality in their lawsuits. The provision is
mandatory. The municipality's authority to employ a
private lawyer is expressly limited only to situations where
the provincial fiscal is disqualified to represent it. 19
For the aforementioned exception to apply, the fact that
the provincial fiscal was disqualified to handle the
municipality's case must appear on record. 20 In the instant
case, there is nothing in the records to show that the
provincial fiscal is disqualified to act as counsel for the
Municipality of Pililla on appeal, hence the appearance of
herein private counsel is without authority of law.
The provincial fiscal's functions as legal officer and adviser for the civil
cases of a province and corollarily, of the municipalities thereof, were
subsequently transferred to the provincial attorney. 21

The foregoing provisions of law and jurisprudence show that only the
provincial fiscal, provincial attorney, and municipal attorney should
represent a municipality in its lawsuits. Only in exceptional instances may
a private attorney be hired by a municipality to represent it in lawsuits.
These exceptions are enumerated in the case ofAlinsug vs. RTC Br. 58, San
Carlos City, Negros Occidental, 22 to wit: 23
Indeed, it appears that the law allows a private counsel to
be hired by a municipality only when the municipality is an
adverse party in a case involving the provincial
government or another municipality or city within the
province. This provision has its apparent origin in the ruling
in De Guia v. The Auditor General (44 SCRA 169, March 29,
1979) where the Court held that the municipality's
authority to employ a private attorney is expressly limited
only to situations where the provincial fiscal would be
disqualified to serve and represent it. With Sec. 1683 of the
old Administrative Code as legal basis, the Court therein
cited Enriquez, Sr. v. Gimenez [107 Phil 932 (1960)] which
enumerated instances when the provincial fiscal is
disqualified to represent in court a particular municipality;
if and when original jurisdiction of case involving the
municipality is vested in the Supreme Court, when the
municipality is a party adverse to the provincial
government or to some other municipality in the same
province, and when, in a case involving the municipality,
he, or his wife, or child, is pecuniarily involved, as heir
legatee, creditor or otherwise.
Thereafter, in Ramos vs. Court of Appeals (108 SCRA 728,
October 30, 1981), the Court ruled that a municipality may
not be represented by a private law firm which had
volunteered its services gratis, in collaboration with the
municipal attorney and the fiscal, as such representations
was violative of Sec. 1683 of the old Administrative
Code. This strict coherence to the letter of the law appears
to have been dictated by the fact that "the municipality
should not be burdened with expenses of hiring a private
lawyer" and that the interests of the municipality would be
best protected if a government lawyer handles its
litigations. (Emphasis supplied.)
None of the foregoing exceptions is present in this case. It may be said that
Atty. Romanillos appeared for respondent municipality inasmuch as he was
already counsel of Kristi Corporation which was sued with respondent
municipality in this same case. The order of the trial court dated
September 19, 1990, stated that Atty. Romanillos "entered his appearance

51

as collaborating counsel of the provincial prosecutor and the provincial

attorney." 24 This collaboration is contrary to law and hence should not
have been recognized as legal. It has already been ruled in this wise:
The fact that the municipal attorney and the fiscal are
supposed to collaborate with a private law firm does not
legalize the latter's representation of the municipality of
Hagonoy in Civil Case No. 5095-M. While a private
prosecutor is allowed in criminal cases, an analogous
arrangement is not allowed in civil cases wherein a
municipality is the plaintiff. 25
As already stated, private lawyers may not represent municipalities
on their own. Neither may they do so even in collaboration with
authorized government lawyers. This is anchored on the principle
that only accountable public officers may act for and in behalf of
public entities and that public funds should not be expanded to
hire private lawyers.
Petitioners cannot be held in estoppel for questioning the legality of the
appearance of Atty. Romanillos, notwithstanding that they questioned the
witnesses of respondent municipality during the hearing of its motion to
dissolve the preliminary injunction. Municipality of Pililla, Rizal vs. Court of
Appeals 26 held that the legality of the representation of an unauthorized
counsel may be raised at any stage of the proceedings. This Court stated
that: 27
The contention of Atty. Mendiola that private respondent
cannot raise for the first time on appeal his lack of
authority to represent the municipality is untenable. The
legality of his representation can be questioned at any
stage of the proceedings. In the cases hereinbefore cited,
the issue of lack of authority of private counsel to
represent a municipality was only raised for the first time
in the proceedings for the collection of attorney's fees for
services rendered in the particular case, after the first time
in the proceedings for the collection of attorney's fees for
services rendered in the particular case, after the decision
in that case had become final and executory and/or had
been duly executed.
Elementary fairness dictates that parties unaware of the unauthorized
representation should not be held in estoppel just because they did not
question on the spot the authority of the counsel for the municipality. The
rule on appearances of a lawyers is that

(u)ntil the contrary is clearly shown, an attorney is

presumed to be acting under authority of the litigant whom
he purports to represent. (Azotes v. Blanco, 78 Phil. 739)
His authority to appear for and represent petitioner in
litigation, not having been questioned in the lower court, it
will be presumed on appeal that counsel was properly
authorized to file the complaint and appear for his client.
(Republic v. Philippine Resources Development
Corporation, 102 Phil. 960) 28
Second Issue: Effect on Proceedings by Adoption
of Unauthorized Representation
Would the adoption by Atty. Regalado of the proceedings participated in by
Atty. Romanillos validate such proceedings? We agree with public
respondent that such adoption produces validity. Public respondent stated
the reasons 29 to which we agree:
Moreover, it does not appear that the adoption of
proceedings participated in or undertaken by Atty.
Romanillos when he was private counsel for the respondent
municipality of Baliuag such as the proceedings on the
motion to dissolve the injunction, wherein petitioners had
even cross-examined the witnesses presented by Atty.
Romanillos in support of said motion and had even started
to present their witnesses to sustain their objection to the
motion would have resulted in any substantial prejudice
to petitioners' interest. As Wee see it, to declare the said
proceedings null and void notwithstanding the formal
adoption thereof by Atty. Regalado as Provincial Attorney of
Bulacan in court and to require trial anew to cover the
same subject matter, to hear the same witnesses and to
admit the same evidence adduced by the same parties
cannot enhance the promotion of justice.
This Court believes that conferring legitimacy to the appearance of Atty.
Romanillos would not cause substantial prejudice on petitioners. Requiring
new trial on the mere legal technicality that the municipality was not
represented by a legally authorized counsel would not serve the interest of
justice. After all, this Court does not see any injustice committed against
petitioners by the adoptions of the work of private counsel nor any interest
of justice being served by requiring retrial of the case by the duly
authorized legal representative of the town.
In sum, although a municipality may not hire a private lawyer to represent
it in litigations, in the interest of substantial justice however, we hold that a
municipality may adopt the work already performed in good faith by such

52

private lawyer, which work is beneficial to it (1) provided that no injustice it

thereby heaped on the adverse party and (2) provided further that no
compensation in any guise is paid therefor by said municipality to the
private lawyer. Unless so expressly adopted, the private lawyers work
cannot bind the municipality.

SO ORDERED.
Narvasa, C.J., Davide, Melo and Francisco, JJ., concur.

Third Issue: "Joint Motion" Need Not Comply with Rule 15

We also agree with the justification of public respondent than a motion to
withdraw the appearance of an unauthorized lawyer is a non-adversarial
motion that need not comply with Section 4 Rule 15 as to notice to the
adverse party. The disqualification of Atty. Romanillos was what petitioners
were really praying for when they questioned his authority to appear for
the municipality. The disqualification was granted, thereby serving the
relief prayed for by petitioners. such being the case, no "notice directed to
the parties concerned and served at least 3 days before the hearing
thereof" 30 need be given petitioners, the questioned motion not being
contentious. Besides, what petitioners were questioning as to lack of
authority was remedied by the adoption of proceedings by an authorized
counsel, Atty. Regalado. The action of the trial court allowing the motion of
respondent municipality effectively granted petitioners motion to disqualify
Atty. Romanillos. In People vs. Leviste, 31 we ruled that:
While it is true any motion that does not comply with the
requirements of Rule 15 should not be accepted for filing
and, if filed, is not entitled to judicial cognizance, this Court
has likewise held that where a rigid application of the rule
will result in a manifest failure or miscarriage of justice,
technicalities may be disregarded in order to resolve the
case. Litigations should, as much as possible, be decided
on the merits and not on technicalities. As this Court held
in Galvez vs. Court of Appeals, "an order of the court
granting the motion to dismiss despite the absence of a
notice of hearing, or proof of service thereof, is merely an
irregularity in the proceedings . . . (which) cannot deprive a
competent court of jurisdiction over the case." (Citations
omitted).
It should be remembered that rules of procedure are but tools designed to
facilitate the attainment of justice, such that when rigid application of the
rules tend to frustrate rather than promote substantial justice, this Court is
empowered to suspend their operation. 32
WHEREFORE, premises considered, the Petition is DENIED and the assailed
Decision and Resolution are AFFIRMED. No costs.

G.R. No. 111230 September 30, 1994

ENRIQUE T. GARCIA, ET AL., petitioners,
vs.
COMMISSION ON ELECTIONS and SANGGUNIANG BAYAN OF
MORONG, BATAAN, respondents.
Alfonzo M. Cruz Law Offices for petitioners.

PUNO, J.:
The 1987 Constitution is borne of the conviction that people power can be
trusted to check excesses of government. One of the means by which
people power can be exercised is thru initiatives where local ordinances
and resolutions can be enacted or repealed. An effort to trivialize the
effectiveness of people's initiatives ought to be rejected.
In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang
Bayan ng Morong, Bataan agreed to the inclusion of the municipality of
Morong as part of the Subic Special Economic Zone in accord with Republic

53

Act
No. 7227.

umunlad rin ang mga nasabing bayan, pati

na rin ng iba pang bayan ng Bataan.

On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan
of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The
petition states:

(I). Tapusin ang pagkokonkreto ng mga

daang Morong-Tala-Orani at Morong-TasigDinalupihan para sa kabutihan ng mga
taga-Bataan at tuloy makatulong sa
pangangalaga ng mga kabundukan.

I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang

Kapasyahan Blg. 10, Serye 1993 ng Sangguniang Bayan
para sa pag-anib ng Morong sa SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang Kapasiyahan na aanib
lamang ang Morong sa SSEZ kung ang mga sumusunod na
kondisyones ay ipagkakaloob, ipatutupad at isasagawa
para sa kapakanan at interes ng Morong at Bataan:
(A). Ibalik sa Bataan ang "Virgin Forests"
isang bundok na hindi nagagalw at
punong-puno ng malalaking punong-kahoy
at iba'-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEZ at
ibalik ito sa Bataan.
(K). Isama ang mga lupain ng Bataan na
nakapaloob sa SBMA sa pagkukuenta ng
salaping ipinagkakaloob ng pamahalaang
national o "Internal Revenue Allotment"
(IRA) sa Morong, Hermosa at sa Lalawigan.
(D). Payagang magtatag rin ng sariling
"special economic zones" ang bawat bayan
ng Morong, Hermosa at Dinalupihan.
(E). Ibase sa laki ng kanya-kanyang lupa
ang pamamahagi ng kikitain ng SBMA.
(G). Ibase rin ang alokasyon ng pagbibigay
ng trabaho sa laki ng nasabing mga lupa.
(H). Pabayaang bukas ang pinto ng SBMA
na nasa Morong ng 24 na oras at bukod
dito sa magbukas pa ng pinto sa
hangganan naman ng Morong at Hermosa
upang magkaroon ng pagkakataong

(J). Magkaroon ng sapat na representasyon

sa pamunuan ng SBMA ang Morong,
Hermosa at Bataan.
The municipality of Morong did not take any action on the petition within
thirty (30) days after its submission. Petitioners then resorted to their
power of initiative under the Local Government Code of 1991. 3 They
started to solicit the required number of signatures 4 to cause the repeal of
said resolution. Unknown to the petitioners, however, the Honorable
Edilberto M. de Leon, Vice Mayor and Presiding Officer of the Sangguniang
Bayan ng Morong, wrote a letter dated June 11, 1993 to the Executive
Director of COMELEC requesting the denial of " . . . the petition for a local
initiative and/or referendum because the exercise will just promote
divisiveness, counter productive and futility." 5 We quote the letter,viz:
The Executive Director
COMELEC
Intramuros, Metro Manila
S i r:
In view of the petition filed by a group of proponents
headed by Gov. Enrique T. Garcia, relative to the conduct of
a local initiative and/or referendum for the annulment of
Pambayang Kapasyahan Blg. 10, Serye 1993, may we
respectfully request to deny the petition referred thereto
considering the issues raised by the proponents were
favorably acted upon and endorsed to Congress and other
government agencies by the Sangguniang Bayan of
Morong.
For your information and guidance, we are enumerating
hereunder the issues raised by the petitioners with the
corresponding actions undertaken by the Sangguniang
Bayan of Morong, to wit:
ISSUES RAISED BY PROPONENTS

54

I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10,

Serye ng taong 1993.

marked as Annex "A:) which tackled the same issues raised

by the petitioners particularly items a), b), c), e), and g).

II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ kung:

3. Item d) is already acted upon by BCDA Chairman Arsenio

Bartolome III in its letter to His Excellency President Fidel V.
Ramos, dated May 7, 1993 (Attached and marked as Annex
"B") with clarifying letter from BCDA Vice-Chairman Rogelio
L. Singson regarding lands on Mabayo and Minanga dated
June 3, 1993 that only lands inside the perimeter fence are
envisioned to be part of SBMA.

a) Ibabalik sa Morong ang pag-aaring

Grande Island, kabundukan at Naval
Reservation;
b) Ibase sa aring Lupa ng LGU ang kikitain
at mapapasok na manggagawa nila sa
SSEZ;
c) Isama ang nasabing lupa sa
pagkukuwenta ng "IRA" ng Morong,
Hermosa at Dinalupihan;
d) Makapagtatag ng sariling "economic
zones" ang Morong, Hermosa at
Dinalupihan;
e) Pabayaan bukas ang pinto ng Morong
patungong SSEZ at magbukas ng dalawang
(2) pinto pa;
(f) Konkretohin ang daang Morong papunta
sa Orani at Dinalupihan;
g) Pumili ng SBMA Chairman na taga-ibang
lugar.
ACTIONS UNDERTAKEN BY THE SB OF MORONG
1. By virtue of R.A. 7227, otherwise known as the Bases
Conversion Development Act of 1992, all actions of LGU's
correlating on the above issues are merely
recommendatory in nature when such provisions were
already embodied in the statute.
2. Corollary to the notion, the Sangguniang Bayan of
Morong passed and approved Pambayang Kapasyahan Blg.
18, Serye 1993, requesting Congress of the Philippines to
amend certain provisions of R.A. 7227, wherein it
reasserted its position embodied in Pambayan Kapasyahan
Blg. 08 and Blg. 12, Serye ng taong 1992, (Attached and

4. Item f), President Ramos in his marginal note over the

letter request of Morong, Bataan Mayor Bienvenido L.
Vicedo, the Sangguniang Bayan and Congressman Payumo,
when the Resolution of Concurrence to SBMA was
submitted last April 6, 1993, order the priority
implementation of completion of Morong-Dinalupihan
(Tasik-Road) Project, including the Morong-PoblacionMabayo Road to DPWH. (Attached and marked as Annex
"C").
Based on the foregoing facts, the Sangguniang Bayan of
Morong had accommodated the clamor of the petitioners in
accordance with its limited powers over the issues.
However, the Sangguniang Bayan of Morong cannot afford
to wait for amendments by Congress of R.A. 7227 that will
perhaps drag for several months or years, thereby delaying
the development of Morong, Bataan.
Henceforth, we respectfully reiterate our request to deny
the petition for a local initiative and/or referendum because
the exercise will just promote divisiveness, counter
productive and futility.
Thank you and more power.
Very truly yours,
(SGD.) EDILBERTO M. DE LEON
Mun. Vice Mayor/Presiding Officer
In its session of July 6, 1993, the COMELEC en banc resolved to
deny the petition for local initiative on the ground that its subject is
"merely a resolution (pambayang kapasyahan) and not an
ordinance." 6 On July 13, 1993, the COMELEC en banc further
resolved to direct Provincial Election Supervisor, Atty. Benjamin N.

55

Casiano, to hold action on the authentication of signatures being

gathered by petitioners. 7

If the required number of

signatures is obtained, the
Comelec shall then set a
date for the initiative
during which the
proposition shall be
submitted to the registered
voters in the local
government unit concerned
for their approval within
sixty (60) days from the
date of certification by the
Comelec, as provided in
subsection (g) hereof, in
case of provinces and
cities, forty-five (45) days
in case of municipalities,
and thirty (30) days in case
of barangays. The initiative
shall then be held on the
date set, after which the
results thereof shall be
certified and proclaimed by
the Comelec. (Sec. 22, par.
(h) R.A. 7160.

These COMELEC resolutions are sought to be set aside in the petition at

bench. The petition makes the following submissions:
5. This is a petition for certiorari and mandamus.
5.01 For certiorari, conformably to Sec. 7, Art. IX of the
Constitution, to set aside Comelec Resolution Nos. 93-1676
and 93-1623 (Annexes "E" and "H") insofar as it disallowed
the initiation of a local initiative to annul PAMBAYANG
KAPASYAHAN BLG. 10, SERYE 1993 including the gathering
and authentication of the required number of signatures in
support thereof.
5.01.1 As an administrative agency,
respondent Comelec is bound to observe
due process in the conduct of its
proceedings. Here, the subject resolutions,
Annexes "E" and "H", were issued ex
parte and without affording petitioners and
the other proponents of the initiative the
opportunity to be heard thereon. More
importantly, these resolutions and/or
directives were issued with grave abuse of
discretion. A Sangguniang Bayan resolution
being an act of the aforementioned local
legislative assembly is undoubtedly a
proper subject of initiative. (Sec. 32, Art. VI,
Constitution)

Respondent COMELEC opposed the petition. Through the Solicitor

General, it contends that under the Local Government Code of
1991, a resolution cannot be the subject of a local initiative. The
same stance is assumed by the respondent Sangguniang Bayan of
Morong. 8
We grant the petition.

5.02 For mandamus, pursuant to Sec. 3, Rule 65, Rules of

Court, to command the respondent Comelec to schedule
forthwith the continuation of the signing of the petition,
and should the required number of signatures be obtained,
set a date for the initiative within forty-five (45) days
thereof.
5.02.1 Respondent Comelec's authority in
the matter of local initiative is merely
ministerial. It is duty-bound to supervise
the gathering of signatures in support of
the petition and to set the date of the
initiative once the required number of
signatures are obtained.

The case at bench is of transcendental significance because it involves an

issue of first impression delineating the extent of the all important
original power of the people to legislate. Father Bernas explains that "in
republican systems, there are generally two kinds of legislative power,
original and derivative. Original legislative power is possessed by the
sovereign people. Derivative legislative power is that which has been
delegated by the sovereign people to legislative bodies and is subordinate
to the original power of the people." 9
Our constitutional odyssey shows that up until 1987, our people have not
directly exercised legislative power, both the constituent power to amend
or revise the Constitution or the power to enact ordinary laws. Section 1,
Article VI of the 1935 Constitution delegated legislative power to Congress,

56

thus "the legislative power shall be vested in a Congress of the Philippines,

which shall consist of a Senate and a House of Representatives." Similarly,
section 1, Article VIII of the 1973 Constitution, as amended, provided that
"the Legislative power shall be vested in a Batasang Pambansa." 10
Implicit in the set up was the trust of the people in Congress to enact laws
for their benefit. So total was their trust that the people did not reserve for
themselves the same power to make or repeal laws. The omission was to
prove unfortunate. In the 70's and until the EDSA revolution, the legislature
failed the expectations of the people especially when former President
Marcos wielded lawmaking powers under Amendment No. 6 of the 1973
Constitution. Laws which could have bridled the nation's downslide from
democracy to authoritarianism to anarchy never saw the light of day.
In February 1986, the people took a direct hand in the determination of
their destiny. They toppled down the government of former President
Marcos in a historic bloodless revolution. The Constitution was rewritten to
embody the lessons of their sad experience. One of the lessons is the folly
of completely surrendering the power to make laws to the legislature. The
result, in the perceptive words of Father Bernas, is that the new
Constitution became "less trusting of public officials than the American
Constitution." 11
For the first time in 1987, the system of people's initiative was thus
installed in our fundamental law. To be sure, it was a late awakening. As
early as 1898, the state of South Dakota has adopted initiative and
referendum in its constitution 12 and many states have followed suit. 13 In
any event, the framers of our 1987 Constitution realized the value of
initiative and referendum as an ultimate weapon of the people to negate
government malfeasance and misfeasance and they put in place an
overarching system. Thus, thru an initiative, the people were given the
power to amend the Constitution itself. Sec. 2 of Art. XVII provides:
"Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of
the total number of registered voters, of which every legislative district
must be represented by at least three per centum of the registered voters
therein." Likewise, thru an initiative, the people were also endowed with
the power to enact or reject any act or law by congress or local legislative
body. Sections 1 and 32 of Article VI provide:
Sec. 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate
and a House of Representatives except to the extent
reserved to the people by the provisions on initiative and
referendum.

Sec. 32. The Congress shall, as early as possible, provide

for a system of initiative and referendum, and the
exceptions therefrom, whereby the people can directly
propose and enact laws or approve or reject any act or law
or part thereof passed by the Congress or local legislative
body after the registration of a petition therefor signed by
at least ten per centum of the total number of registered
voters, of which every legislative district must be
represented by at least three per centum of the registered
voters thereto.
The COMELEC was also empowered to enforce and administer all
laws and regulations relative to the conduct of an initiative and
referendum. 14 Worthwhile noting is the scope of coverage of an
initiative or referendum as delineated by section 32 Art. VI of the
Constitution, supra any act or law passed by Congress or local
legislative body.
In due time, Congress respondent to the mandate of the Constitution. It
enacted laws to put into operation the constitutionalized concept of
initiative and referendum. On August 4, 1989, it approved Republic Act No.
6735 entitled "An Act Providing for a System of Initiative and Referendum
and Appropriating Funds Therefor." Liberally borrowed from American
laws, 15 R.A. No. 6735, among others, spelled out the requirements 16 for
the exercise of the power of initiative and referendum, the conduct of
national initiative and referendum; 17 procedure of local initiative and
referendum; 18 and their limitations. 19 Then came Republic Act No. 7160,
otherwise known as The Local Government Code of 1991. Chapter 2, Title
XI, Book I of the Code governed the conduct of local initiative and
referendum.
In light of this legal backdrop, the essential issue to be resolved in the case
at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the
Sangguniang Bayan of Morong, Bataan is the proper subject of an
initiative. Respondents take the negative stance as they contend that
under the Local Government Code of 1991 only an ordinance can be the
subject of initiative. They rely on section 120, Chapter 2, Title XI, Book I of
the Local Government Code of 1991 which provides: "Local Initiative
Defined. Local initiative is the legal process whereby the registered
voters of a local government unit may directly propose, enact, or amend
any ordinance."
We reject respondents' narrow and literal reading of the above provision for
it will collide with the Constitution and will subvert the intent of the
lawmakers in enacting the provisions of the Local Government Code of
1991 on initiative and referendum.

xxx xxx xxx

57

The Constitution clearly includes not only ordinances but resolutions as

appropriate subjects of a local initiative. Section 32 of Article VI provides in
luminous language: "The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions therefrom,
whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress, or local
legislative body . . ." An act includes a resolution. Black 20 defines an act as
"an expression of will or purpose . . . it may denote something done . . . as
a legislature, including not merely physical acts, but also decrees, edicts,
laws, judgments, resolves, awards, and determinations . . . ." It is basic
that a law should be construed in harmony with and not in violation of the
constitution. 21In line with this postulate, we held in In Re Guarina that "if
there is doubt or uncertainty as to the meaning of the legislative, if the
words or provisions are obscure, or if the enactment is fairly susceptible of
two or more constructions, that interpretation will be adopted which will
avoid the effect of unconstitutionality, even though it may be necessary,
for this purpose, to disregard the more usual or apparent import of the
language used." 22
The constitutional command to include acts (i.e., resolutions) as
appropriate subjects of initiative was implemented by Congress when it
enacted Republic Act No. 6735 entitled "An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor." Thus, its
section 3(a) expressly includes resolutions as subjects of initiatives on local
legislations, viz:
Sec. 3. Definition of Terms For purposes of this Act, the
following terms shall mean;
(a) "Initiative" is the power of the people to
propose amendments to the Constitution or
to propose and enact legislations through
an election called for the purpose.
There are three (3) systems of initiative,
namely:
a.1. Initiative on the Constitution which
refers to a petition proposing amendments
to the Constitution.
a.2. Initiative on statutes which refers to a
petition proposing to enact a national
legislation; and

a.3. Initiative on local legislation which

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

58

THE SPEAKER PRO TEMPORE. What is the pleasure of the

Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a
few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.
THE SPEAKER PRO TEMPORE. The Gentleman will please
proceed.
MR. ALBANO. I heard the sponsor say that the only
difference in the two bills was that in the Senate version
there was a provision for local initiative and referendum,
whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for
local initiative and referendum, whereas in the House
version, we provided purely for national and constitutional
legislation.
MR. ALBANO. Is it our understanding, therefore, that the
two provisions were incorporated.?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative
and referendum both in the constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal
resolutions?

MR. ROCO. That is correct, Mr. Speaker. For constitutional

amendments to the 1987 Constitution, it is every five
years. 23
Contrary to the submission of the respondents, the subsequent enactment
of the local Government Code of 1991 which also dealt with local initiative
did not change the scope of its coverage. More specifically, the Code did
not limit the coverage of local initiatives to ordinances alone. Section 120,
Chapter 2, Title IX Book I of the Code cited by respondents merely defines
the concept of local initiative as the legal process whereby the registered
voters of a local government unit may directly propose, enact, or amend
any ordinance. It does not, however, deal with the subjects or matters that
can be taken up in a local initiative. It is section 124 of the same Code
which does. It states:
Sec. 124. Limitations on Local Initiatives. (a) The power of
local initiative shall not be exercised more than once a
year.
(b) Initiative shall extend only to subjects or matters which
are within the legal powers of the Sanggunians to enact.
xxx xxx xxx
This provision clearly does not limit the application of local
initiatives to ordinances, but to all "subjects or matters which are
within the legal powers of the Sanggunians to enact," which
undoubtedly includes resolutions. This interpretation is supported
by Section 125 of the same Code which provides: "Limitations upon
Sanggunians. Any proposition or ordinance approved through
the system of initiative and referendum as herein provided shall
not be repealed, modified or amended by the sanggunian
concerned within six (6) months from the date of the approval
thereof . . . ." Certainly, the inclusion of the word proposition is
inconsistent with respondents' thesis that only ordinances can be
the subject of local initiatives. The principal author of the Local
Government Code of 1991, former Senator Aquilino Pimentel,
espouses the same view. In his commentaries on the said law, he
wrote, viz: 24

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

MR. ALBANO. And this initiative and referendum is in
consonance with the provision of the Constitution whereby
it mandates this Congress to enact the enabling law, so
that we shall have a system which can be done every five
years. Is it five years in the provision of the Constitution?

4. Subject Matter Of Initiative. All sorts of measures may be

the subject of direct initiative for as long as these are
within the competence of the Sanggunian to enact. In
California, for example, direct initiatives were proposed to
enact a fishing control bill, to regulate the practice of
chiropractors, to levy a special tax to secure a new library,

59

to grant a franchise to a railroad company, and to prevent

discrimination in the sale of housing and similar bills.
Direct initiative on the local lever may, therefore, cover all
kinds of measures provided that these are within the power
of the local Sanggunians to enact, subject of course to the
other requisites enumerated in the Section.
5. Form of Initiative. Regarding the form of the measure,
the section speaks only of "ordinance," although the
measure may be contained in a resolution. If the registered
voters can propose ordinances, why are they not allowed
to propose resolutions too? Moreover, the wording of Sec.
125, below, which deals not only with ordinances but with
"any proposition" implies the inclusion of resolutions. The
discussion hereunder will also show support for the
conclusion that resolutions may indeed be the subject of
local initiative.
We note that respondents do not give any reason why resolutions should
not be the subject of a local initiative. In truth, the reason lies in the well
known distinction between a resolution and an ordinance i.e., that a
resolution is used whenever the legislature wishes to express an opinion
which is to have only a temporary effect while an ordinance is intended to
permanently direct and control matters applying to persons or things in
general. 25 Thus, resolutions are not normally subject to referendum for it
may destroy the efficiency necessary to the successful administration of
the business affairs of a city. 26
In the case at bench, however, it can not be argued that the subject matter
of the resolution of the municipality of Morong merely temporarily affects
the people of Morong for it directs a permanent rule of conduct or
government. The inclusion of Morong as part of the Subic Special Economic
Zone has far reaching implications in the governance of its people. This is
apparent from a reading of section 12 of Republic Act No. 7227 entitled "An
Act Accelerating the Conversion of Military Reservations Into Other
Productive Uses, Creating the Bases Conversion and Development
Authority For This Purpose, Providing Funds Therefor and For Other
Purposes." to wit:
Sec. 12. Subic Special Economic Zone. Subject to the
concurrence by resolution of the sangguniang
panlungsod of the City of Olongapo and the sangguniang
bayan of the Municipalities of Subic, Morong and Hermosa,
there is hereby created a Special Economic and Free-port
Zone consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the lands

occupied by the Subic Naval Base and its contiguous

extensions as embraced, covered, and defined by the 1947
Military Bases Agreement between the Philippines and the
United States of America as amended, and within the
territorial jurisdiction of the Municipalities of Morong and
Hermosa, Province of Bataan, hereinafter referred to a as
the Subic Special Economic Zone whose metes and bounds
shall be delineated in a proclamation to be issued by the
President of the Philippines. Within thirty (30) days after
the approval of this Act, each local government unit shall
submit its resolution of concurrence to join the Subic
Special Economic Zone to the Office of the President.
Thereafter, the President of the Philippines shall issue a
proclamation defining the metes and bounds of the zone as
provided herein.
The abovementioned zone shall be subject to the following
policies:
(a) Within the framework and subject to the mandate and
limitations of the Constitution and the pertinent provisions
of the Local Government Code, the Subic Special Economic
Zone shall be developed into a self-sustaining, industrial,
commercial, financial and investment center to generate
employment opportunities in and around the zone and to
attract and promote productive foreign investments;
(b) The Subic Special Economic Zone shall be operated and
managed as a separate customs territory ensuring free
flow or movement of goods and capital within, into a
exported out of the Subic Special Economic Zone, as well
as provide incentives such as tax and duty-free
importations of raw material, capital and equipment.
However, exportations or removal of goods from the
territory of the Subic Special Economic Zone to the other
parts of the Philippine territory shall be subject to customs
duties and taxes under the Customs and Tariff Code and
other relevant tax laws of the Philippines:
(c) The provision of existing laws, rules and regulations to
the contrary notwithstanding, no taxes, local and national,
shall be imposed within the Subic Special Economic Zone.
In lieu of paying taxes, three percent (3%) of the of the
gross income earned by all businesses and enterprises
within the Subic Special Economic Zone shall be remitted
to the National Government one percent (1%) each to the
local government units affected by the declaration of the

60

zone in proportion to their population area, and other

factors. In addition, there is hereby established a
development fund of one percent (1%) of the gross income
earned by all businesses and enterprises within the Subic
Special Economic Zone to be utilized for the development
of municipalities outside the City of Olongapo and the
Municipality of Subic, and other municipalities contiguous
to the base areas.
In case of conflict between national and local laws with
respect to tax exemption privileges in the Subic Special
Economic Zone, the same shall be resolved in favor of the
latter;
(d) No exchange control policy shall be applied and free
markets for foreign exchange, gold, securities and futures
shall be allowed and maintained in the Subic Special
Economic Zone;
(e) The Central Bank, through the Monetary Board, shall
supervise and regulate the operations of banks and other
financial institutions within the Subic Special Economic
Zone;
(f) Banking and finance shall be liberalized with the
establishment of foreign currency depository units of local
commercial banks and offshore banking units of foreign
banks with minimum Central Bank regulation;

(g) Any investor within the Subic Special Economic Zone

whose continuing investment shall not be less than Two
hundred fifty thousand dollars ($250,000), his/her spouse
and dependent children under twenty-one (21) years of
age, shall be granted permanent resident status within the
Subic Special Economic Zone. They shall have freedom of
ingress and egress to and from the Subic Special Economic
Zone without any need of special authorization from the
Bureau of Immigration and Deportation. The Subic Bay
Metropolitan Authority referred to in Section 13 of this Act
may also issue working visas renewable every two (2)
years to foreign executives and other aliens possessing
highly-technical skills which no Filipino within the Subic
Special Economic Zone possesses, as certified by the
Department of Labor and Employment. The names of
aliens granted permanent residence status and working
visas by the Subic Bay Metropolitan Authority shall be
reported to the Bureau of Immigration and Deportation
within thirty (30) days after issuance thereof.
(h) The defense of the zone and the security of its
perimeters shall be the responsibility of the National
Government in coordination with the Subic Bay
Metropolitan Authority. The Subic Bay Metropolitan
Authority shall provide and establish its own internal
security and fire fighting forces; and
(i) Except as herein provided, the local government units
comprising the Subic Special Economic Zone shall retain
their basic autonomy and identity. The cities shall be
governed by their respective charters and the
municipalities shall operate and function in accordance
with Republic Act No. 7160, otherwise known as the Local
Government Code of 1991.
In relation thereto, section 14 of the same law provides:
Sec. 14. Relationship with the Conversion Authority and the
Local Government Units.
(a) The provisions of existing laws, rules and regulations to
the contrary notwithstanding, the Subic Authority shall
exercise administrative powers, rule-making and
disbursement of funds over the Subic Special Economic
Zone in conformity with the oversight function of the
Conversion Authority.

61

(b) In case of conflict between the Subic Authority and the

local government units concerned on matters affecting the
Subic Special Economic zone other than defense and
security, the decision of the Subic Authority shall prevail.
Considering the lasting changes that will be wrought in the social,
political, and economic existence of the people of Morong by the
inclusion of their municipality in the Subic Special Economic Zone,
it is but logical to hear their voice on the matter via an initiative. It
is not material that the decision of the municipality of Morong for
the inclusion came in the form of a resolution for what matters is
its enduring effect on the welfare of the people of Morong.
Finally, it cannot be gained that petitioners were denied due process. They
were not furnished a copy of the letter-petition of Vice Mayor Edilberto M.
de Leon to the respondent COMELEC praying for denial of their petition for
a local initiative on Pambayang Kapasyahan Blg. 10, Serye 1993. Worse,
respondent COMELEC granted the petition without affording petitioners any
fair opportunity to oppose it. This procedural lapse is fatal for at stake is
not an ordinary right but the sanctity of the sovereignty of the people, their

original power to legislate through the process of initiative. Ours is the duty
to listen and the obligation to obey the voice of the people. It could well be
the only force that could foil the mushrooming abuses in government.
IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 931623 dated July 6, 1993 and Resolution 93-1676 dated July 13, 1993 are
ANNULLED and SET ASIDE. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Vitug, Kapunan and Mendoza, JJ., concur.
Feliciano, Padilla, Bidin, JJ., are on leave.

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