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G.R. No. 93252 August 5, 1991 RODOLFO T. GANZON, petitioner, vs.

. THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, respondents. G.R. No. 93746 August 5,1991 MARY ANN RIVERA ARTIEDA, petitioner, vs. HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local Government, NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the Department of Local Government and SALVADOR CABALUNA JR., respondents. G.R. No. 95245 August 5,1991 RODOLFO T. GANZON, petitioner, vs. THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the Secretary of the Department of Local Government, respondents.

The petitioners take common issue on the power of the President (acting through the Secretary of Local Government), to suspend and/or remove local officials. The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the Sangguniang Panglunsod thereof (G.R. No. 93746), respectively. The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number, filed against him by various city officials sometime in 1988, on various charges, among them, abuse of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. 1 The personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad Ortigoza, Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a barangay tanod. The complaints against the Mayor are set forth in the opinion of the respondent Court of Appeals. 2 We quote: xxx xxx xxx In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health, Office of Iloilo City charged that due to political reasons, having supported the rival candidate, Mrs. Rosa 0. Caram, the petitioner City Mayor, using as an excuse the exigency of the service and the interest of the public, pulled her out from rightful office where her qualifications are best suited and assigned her to a work that should be the function of a non-career service employee. To make matters worse, a utility worker in the office of

Nicolas P. Sonalan for petitioner in 93252. Romeo A. Gerochi for petitioner in 93746. Eugenio Original for petitioner in 95245.

SARMIENTO, J.:p

the Public Services, whose duties are alien to the complainant's duties and functions, has been detailed to take her place. The petitioner's act are pure harassments aimed at luring her away from her permanent position or force her to resign. In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to perform task not befitting her position as Assistant City Health Officer of Iloilo City; that her office was padlocked without any explanation or justification; that her salary was withheld without cause since April 1, 1988; that when she filed her vacation leave, she was given the run-around treatment in the approval of her leave in connivance with Dr. Rodolfo Villegas and that she was the object of a well-engineered trumped-up charge in an administrative complaint filed by Dr. Rodolfo Villegas (Annex B). On the other hand, Mansuelo Malabor is the duly elected ViceMayor of Iloilo City and complainants Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia Pedondo are members of the Sangguniang Panglunsod of the City of Iloilo. Their complaint arose out from the case where Councilor Larry Ong, whose key to his office was unceremoniously and without previous notice, taken by petitioner. Without an office, Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other complainants sympathized with him and decided to do the same. However, the petitioner, together with its fully-armed security men, forcefully drove them away from Plaza Libertad. Councilor Ong denounced the petitioner's actuations the following day in the radio station and decided to hold office at the Freedom Grandstand at Iloilo City and there were so many people who gathered to witness the incident. However, before the group could reach the area, the petitioner, together with his security men, led the firemen using a firetruck in dozing water to the people and the bystanders.

Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by former mayor Rosa O. Caram. On March 13, 1988, without the benefit of charges filed against him and no warrant of arrest was issued, Erbite was arrested and detained at the City Jail of Iloilo City upon orders of petitioner. In jail, he was allegedly mauled by other detainees thereby causing injuries He was released only the following day. 3 The Mayor thereafter answered 4 and the cases were shortly set for hearing. The opinion of the Court of Appeals also set forth the succeeding events: xxx xxx xxx The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21, 1988 at the Regional Office of the Department of Local Government in Iloilo City. Notices, through telegrams, were sent to the parties (Annex L) and the parties received them, including the petitioner. The petitioner asked for a postponement before the scheduled date of hearing and was represented by counsel, Atty. Samuel Castro. The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had to come all the way from Manila for the two-day hearings but was actually held only on June 20,1988 in view of the inability and unpreparedness of petitioner's counsel. The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again, the petitioner attempted to delay the proceedings and moved for a postponement under the excuse that he had just hired his counsel. Nonetheless, the hearing officers denied the motion to postpone, in view of the fact that the parties were notified by telegrams of the scheduled hearings (Annex M).

In the said hearings, petitioner's counsel cross-examined the complainants and their witnesses. Finding probable grounds and reasons, the respondent issued a preventive suspension order on August 11, 1988 to last until October 11,1988 for a period of sixty (60) days. Then the next investigation was set on September 21, 1988 and the petitioner again asked for a postponement to September 26,1988. On September 26, 1988, the complainants and petitioner were present, together with their respective counsel. The petitioner sought for a postponement which was denied. In these hearings which were held in Mala the petitioner testified in Adm. Case No. C10298 and 10299. The investigation was continued regarding the Malabor case and the complainants testified including their witnesses. On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the October 24, 1988 hearing to November 7 to 11, 1988 which was granted. However, the motion for change of venue as denied due to lack of funds. At the hearing on November 7, 1988, the parties and counsel were present. Petitioner reiterated his motion to change venue and moved for postponement anew. The counsel discussed a proposal to take the deposition of witnesses in Iloilo City so the hearing was indefinitely postponed. However, the parties failed to come to terms and after the parties were notified of the hearing, the investigation was set to December 13 to 15, 1988. The petitioner sought for another postponement on the ground that his witnesses were sick or cannot attend the investigation due to

lack of transportation. The motion was denied and the petitioner was given up to December 14, 1988 to present his evidence. On December 14,1988, petitioner's counsel insisted on his motion for postponement and the hearing officers gave petitioner up to December 15, 1988 to present his evidence. On December 15, 1988, the petitioner failed to present evidence and the cases were considered submitted for resolution. In the meantime, a prima facie evidence was found to exist in the arbitrary detention case filed by Pancho Erbite so the respondent ordered the petitioner's second preventive suspension dated October 11, 1988 for another sixty (60) days. The petitioner was able to obtain a restraining order and a writ of preliminary injunction in the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension was not enforced. 5 Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent Secretary of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent Court of Appeals. Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, 6 (Malabor it is to be noted, is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)

On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417. On July 5, 1990, it likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a Resolution dated January 24, 1990, it issued a Resolution certifying the petition of Mary Ann Artieda, who had been similary charged by the respondent Secretary, to this Court. On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two decisions. In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of January 15, 1991, we gave due course thereto. Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in hearing the ten cases against him, had denied him due process of law and that the respondent Secretary had been "biased, prejudicial and hostile" towards him 7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng Demokratikong Pilipino party 8 and the running political rivalry they maintained in the last congressional and local elections; 9 and his alleged refusal to operate a lottery in Iloilo City. 10 He also alleges that he requested the Secretary to lift his suspension since it had come ninety days prior to an election (the barangay elections of November 14, 1988), 11 notwithstanding which, the latter proceeded with the hearing and meted out two more suspension orders of the aforementioned cases. 12 He likewise contends that he sought to bring the cases to Iloilo City (they were held in Manila) in order to reduce the costs of proceeding, but the Secretary rejected his request. 13 He states that he asked for postponement on "valid

and justifiable" 14 grounds, among them, that he was suffering from a heart ailment which required confinement; that his "vital" 15 witness was also hospitalized 16 but that the latter unduly denied his request. 17 Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local Government is devoid, in any event, of any authority to suspend and remove local officials, an argument reiterated by the petitioner Mary Ann Rivera Artieda (G.R. No. 93746). As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what manner the Mayor might have been deprived of his rights by the respondent Secretary. His claims that he and Secretary Luis-Santos were (are) political rivals and that his "persecution" was politically motivated are pure speculation and although the latter does not appear to have denied these contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would have under less political circumstances, considering furthermore that "political feud" has often been a good excuse in contesting complaints. The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted to seduce him to join the administration party and to operate a lottery in Iloilo City. Again, although the Secretary failed to rebut his allegations, we can not accept them, at face value, much more, as judicial admissions as he would have us accept them 18 for the same reasons abovestated and furthermore, because his say so's were never corroborated by independent testimonies. As a responsible public official, Secretary Santos, in pursuing an official function, is presumed to be performing his duties regularly and in the absence

of contrary evidence, no ill motive can be ascribed to him. As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the hearing on account of the ninetyday ban prescribed by Section 62 of Batas Blg. 337, the Court finds the question to be moot and academic since we have in fact restrained the Secretary from further hearing the complaints against the petitioners. 19 As to his request, finally, for postponements, the Court is afraid that he has not given any compelling reason why we should overturn the Court of Appeals, which found no convincing reason to overrule Secretary Santos in denying his requests. Besides, postponements are a matter of discretion on the part of the hearing officer, and based on Mayor Ganzon's above story, we are not convinced that the Secretary has been guilty of a grave abuse of discretion. The Court can not say, under these circumstances, that Secretary Santos' actuations deprived Mayor Ganzon of due process of law. We come to the core question: Whether or not the Secretary of Local Government, as the President's alter ego, can suspend and/or remove local officials. It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials. According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting the phrase 21 as may be provided by law to strip the President of the power of control over local governments. It is a view, so they contend, that finds support in the debates of the

Constitutional Commission. The provision in question reads as follows: Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. 22 It modifies a counterpart provision appearing in the 1935 Constitution, which we quote: Sec. 10. The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all Local governments as may be provided by law, and take care that the laws be faithfully executed. 23 The petitioners submit that the deletion (of "as may be provided by law") is significant, as their argument goes, since: (1) the power of the President is "provided by law" and (2) hence, no law may provide for it any longer. It is to be noted that in meting out the suspensions under question, the Secretary of Local Government acted in consonance with the specific legal provisions of Batas Blg. 337, the Local Government Code, we quote: Sec. 62. Notice of Hearing. Within seven days after the complaint is filed, the Minister of local Government, or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within seven days from

receipt of said complaint, and commence the hearing and investigation of the case within ten days after receipt of such answer of the respondent. No investigation shall be held within ninety days immediately prior to an election, and no preventive suspension shall be imposed with the said period. If preventive suspension has been imposed prior to the aforesaid period, the preventive suspension shall be lifted. 24 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. 25 The issue, as the Court understands it, consists of three questions:

(1) Did the 1987 Constitution, in deleting the phrase "as may be provided by law" intend to divest the President of the power to investigate, suspend, discipline, and/or remove local officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the constitutional language? It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter did not intend to divest the legislature of its right or the President of her prerogative as conferred by existing legislation to provide administrative sanctions against local officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. Autonomy does not, after all, contemplate making mini-states out of local government units, as in the federal governments of the United States of America (or Brazil or Germany), although Jefferson is said to have compared municipal corporations euphemistically to "small republics." 26 Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean local government units from over-dependence on the central government. It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other things, the passage of a local government code, 27 a local tax law, 28 income

distribution legislation, 29 and a national representation law, 30 and measures 31 designed to realize autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places the local government under the general supervision of the Executive. It is noteworthy finally, that the Charter allows Congress to include in the local government code provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President. Thus: Sec. 3. The Congress shall 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, allocate among the different local government units their powers, responsibilities and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. 32 As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio, the objective of the framers to strengthen local autonomy by severing congressional control of its affairs, as observed by the Court of Appeals, like the power of local legislation. 33 The Constitution did nothing more, however, and insofar as existing legislation authorizes the President (through the Secretary of Local Government) to proceed against local officials administratively, the Constitution contains no prohibition. The petitioners are under the impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which

allegedly embraces disciplinary authority. It is a mistaken impression because legally, "supervision" is not incompatible with disciplinary authority as this Court has held, 34 thus: xxx xxx xxx It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had occasion to discuss the scope and extent of the power of supervision by the President over local government officials in contrast to the power of control given to him over executive officials of our government wherein it was emphasized that the two terms, control and supervision, are two different things which differ one from the other in meaning and extent. Thus in that case the Court has made the following digression: "In administration law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify of set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter." But from this pronouncement it cannot be reasonably inferred that the power of supervision of the President over local government officials does not include the power of investigation when in his opinion the good of the public service so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35 xxx xxx xxx "Control" has been defined as "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in

the performance of his duties and to substitute the judgment of the former for test of the latter." 36 "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. 37 As we held, 38 however, "investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". The impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson v. Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor General. 42 In Lacson, this Court said that the President enjoyed no control powers but only supervision "as may be provided by law," 43 a rule we reiterated in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board." 44 However, neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from exercising acts of disciplinary authority because she did not exercise control powers, but because no law allowed her to exercise disciplinary authority. Thus, according to Lacson: The contention that the President has inherent power to remove or suspend municipal officers is without doubt not well taken. Removal and suspension of public officers are always controlled by the particular law applicable and its proper construction subject to constitutional limitations. 45 In Hebron we stated: Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrary-which does not et with respect to municipal officers ...

46

In Mondano, the Court held: ... The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to "receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge by one affecting the official integrity of the officer in question." Section 86 of the Revised Administration Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of ... municipalities ... . If it be construed that it does and such additional power is the same authority as that vested in the Department Head by section 79(c) of the Revised Administrative Code, then such additional power must be deemed to have been abrogated by Section 110(l), Article VII of the Constitution. 47 xxx xxx xxx In Pelaez, we stated that the President can not impose disciplinary measures on local officials except on appeal from the provincial board pursuant to the Administrative Code. 48 Thus, in those case that this Court denied the President the power

(to suspend/remove) it was not because we did not think that the President can not exercise it on account of his limited power, but because the law lodged the power elsewhere. But in those cases ii which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining him. 49 The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission to defeat the President's powers. The Court believes that the deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of removal from the President, 50 Commissioner Blas Ople would not. 51 The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas Blg. 37. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding the stronger expression of local autonomy under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg. 337 is still in force and effect. 52 As the Constitution itself declares, local autonomy means "a more responsive and accountable local government structure instituted through a system of decentralization." 53 The Constitution as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and inter-dependence between the central administration and local government units, or otherwise, to user in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject

to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self- government. As we observed in one case, 54 decentralization means devolution of national administration but not power to the local levels. Thus: Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous, In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "self-immolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. 55 The successive sixty-day suspensions imposed on Mayor Rodolfo

Ganzon is albeit another matter. What bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing ten administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in the event that all ten cases yield prima facie findings. The Court is not of course tolerating misfeasance in public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly another question to make him serve 600 days of suspension, which is effectively, to suspend him out of office. As we held: 56 2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable to. it is a basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, Ms culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga They were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this

preventive suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should be lifted. 57 The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and so also, because it is out of the ordinary to have a vacancy in local government. The sole objective of a suspension, as we have held, 59 is simply "to prevent the accused from hampering the normal cause of the investigation with his influence and authority over possible witnesses" 60 or to keep him off "the records and other evidence. 61 It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local official. Under the Local Government Code, it can not exceed sixty days, 62 which is to say that it need not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved their purpose in a shorter span. Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held to insure his presence at the trial. In both cases, the accused (the respondent) enjoys a presumption of innocence unless and until found guilty. Suspension finally is temporary and as the Local Government Code provides, it may be imposed for no more than sixty days. As we held, 63 a longer suspension is unjust and unreasonable, and we might add, nothing less than tyranny. As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor Ganzon is to all intents and

purposes, to make him spend the rest of his term in inactivity. It is also to make, to all intents and purposes, his suspension permanent. It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been proven. Worse, any absolution will be for naught because needless to say, the length of his suspension would have, by the time he is reinstated, wiped out his tenure considerably. The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that justice is done in Iloilo City, yet it is hardly any argument to inflict on Mayor Ganzon successive suspensions when apparently, the respondent Secretary has had sufficient time to gather the necessary evidence to build a case against the Mayor without suspending him a day longer. What is intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could have pursued a consolidated effort. We reiterate that we are not precluding the President, through the Secretary of Interior from exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that power oppressively, and needless to say, with a grave abuse of discretion. The Court is aware that only the third suspension is under questions, and that any talk of future suspensions is in fact premature. The fact remains, however, that Mayor Ganzon has been made to serve a total of 120 days of suspension and the possibility of sixty days more is arguably around the corner (which amounts to a violation of the Local Government Code which brings

to light a pattern of suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is simply foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act. As we said, we can not tolerate such a state of affairs. We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and lifting, for the purpose, the Temporary Restraining Order earlier issued. Insofar as the seven remaining charges are concerned, we are urging the Department of Local Government, upon the finality of this Decision, to undertake steps to expedite the same, subject to Mayor Ganzon's usual remedies of appeal, judicial or administrative, or certiorari, if warranted, and meanwhile, we are precluding the Secretary from meting out further suspensions based on those remaining complaints, notwithstanding findings of prima facie evidence. In resume the Court is laying down the following rules: 1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of power, in which local officials remain accountable to the central government in the manner the law may provide; 2. The new Constitution does not prescribe federalism; 3. The change in constitutional language (with respect to the supervision clause) was meant but to deny legislative control over local governments; it did not exempt the latter from legislative regulations provided regulation is consistent with the fundamental premise of autonomy;

4. Since local governments remain accountable to the national authority, the latter may, by law, and in the manner set forth therein, impose disciplinary action against local officials; 5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the President does not have); 6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no longer be suspended for the offenses he was charged originally; provided: a) that delays in the investigation of those charges "due to his fault, neglect or request, (the time of the delay) shall not be counted in computing the time of suspension. [Supra, sec. 63(3)] b) that if during, or after the expiration of, his preventive suspension, the petitioner commits another or other crimes and abuses for which proper charges are filed against him by the aggrieved party or parties, his previous suspension shall not be a bar to his being preventively suspended again, if warranted under subpar. (2), Section 63 of the Local Government Code. WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED, provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any of the remaining administrative charges pending against him for acts committed prior to August 11, 1988. The Secretary of Interior is ORDERED to consolidate all such administrative cases pending against Mayor Ganzon.

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ concur G.R. No. 100874 February 13, 1992 GOVERNOR BENJAMIN I. ESPIRITU, petitioner, vs. NELSON B. MELGAR and HON. JUDGE MARCIANO T. VIROLA, respondents. Luna, Sison & Manas for petitioner. Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for private respondent.

GRIO-AQUINO, J.: The issue in this special civil action of certiorari and prohibition is the jurisdiction of respondent Judge of the Regional Trial Court of Oriental Mindoro to stop the provincial governor from placing a municipal mayor under preventive suspension pending the investigation of administrative charges against the latter. On April 11, 1991, one Ramir Garing of Naujan, Oriental Mindoro,

filed a sworn letter-complaint with Secretary Luis Santos of the Department of Interior and Local Government charging Mayor Nelson Melgar of Naujan, Oriental Mindoro, with grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of the public service. The charge against Mayor Melgar reads: On or about 4:30 in the afternoon of March 26, 1991, in the Municipality of Naujan, Oriental Mindoro, the aforementioned person, Nelson Melgar, being the Municipal Mayor of Naujan, Oriental Mindoro, with abuse of official function, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of Ramir Garing, by then and there boxing and kicking thereby inflicting upon the latter physical injuries on different parts of his body and not being contented ordered his arrest and detention in the municipal jail of Naujan, Oriental Mindoro without filing any charges until he was released the following day March 27, 1991 at about 8:30 in the morning. (p. 30, Rollo.) An identical letter-complaint was filed by Garing with the Provincial Governor of Oriental Mindoro (herein petitioner Governor Benjamin I. Espiritu) accusing Mayor Melgar of the same violations of law and requesting that the mayor be placed under preventive suspension pending investigation of the charges. A third complaint filed by Garing with the Presidential Action Center, Office of the President of the Philippines, was forwarded to Governor Espiritu with a request for prompt action (Annex "C", p. 36, Rollo). On April 22, 1991, the Sangguniang Panlalawigan of Oriental

Mindoro required Mayor Melgar to answer the complaint, which was docketed as Adm. Case No. 91-01 (Annex "D", p. 37, Rollo). On May 22, 1991, Mayor Melgar submitted his answer in which he recounted the events of March 26, 1991 that led to the filing of Garing's complaint against him: At around 6:30 in the evening of 26 March 1991, while I was in the middle of my speech at the Naujan Public Gymnasium, this Municipality, where the Jose L. Basa Memorial graduation ceremonies were then being held, a prolonged but nonetheless loud and intermittent clapping suddenly erupted from one of the numerous people then in attendance. I paused. The handclapping stopped. I resumed my speech. The fellow started all over again. The audience was visibly disturbed and I found myself unable to proceed not because I could not collect my thoughts but because I felt the solemnity of the occasion had irreversibly been shattered by a rudeness so totally unexpected. I ended my speech and instructed a policeman to investigate the culprit who turned out to be Ramir Garing. He was drunk. I did not hurt him as can be gathered from his medical certificate (Annex "B" to the complaint) which palpably contradicts his affidavit (Annex "A" to the complaint). I was informed that said Ramir Garing was momentarily placed in custody for his own protection because he was drunk. An open knife (balisong) was taken from him. I was likewise informed that after he had sobered up, he was told to go home, but he refused to go and only did so the following morning.

Certainly under the circumstances, charges could have been filed against Ramir Garing under the provisions of Article 153 of the Revised Penal Code and also for possession and concealment of a deadly weapon. Still, as a local Chief Executive, who to most people represent (sic) a sovereign government, and who, at the cost of foregoing personal vindication must avoid any appearance of vindictiveness, I instructed my policemen not to file charges against him. Attached hereto for your further reference are the joint affidavit of teachers of the J.L. Basa Memorial School as Annex "A", the joint affidavit of the Municipal Jailer and the Police Investigator as Annex "B", the affidavit of Fireman 1st Class Roy Lomio as Annex "C", and a xerox copy of the pages in the Police Blotter where the incident in question was entered. (pp. 40-41, Rollo). After evaluating the complaint and its supporting documents, as well as the Mayor's answer and the affidavits of his witnesses, the Sangguniang Panlalawigan of Oriental Mindoro passed Resolution No. 55 on May 9, 1991, recommending to the Provincial Governor that respondent Mayor be preventively suspended for forty-five (45) days pending the investigation of the administrative complaint (Annex "H, p. 49, Rollo). On May 23, 1991, Mayor Melgar filed a motion to dismiss the administrative complaint (Annex "I", pp. 51-55, Rollo). It was opposed by Garing. On June 6, 1991, the Sangguniang Panlalawigan denied the motion to dismiss (Res. No. 72, p. 62 Rollo; Annex "L" to the Petition). Meanwhile, pursuant to the recommendation of the Sangguniang

Panlalawigan in its Resolution No. 55, Governor Espiritu placed Mayor Melgar under preventive suspension on May 28, 1991 on the ground that: . . . there is reasonable ground to believe that respondent Mayor Nelson B. Melgar of Naujan, Oriental Mindoro, has committed the acts stated in the complaint and affidavit of Ramir Garing and corroborated by the affidavits (Exhibits A, C & D) of his witnesses, namely: Lydia V. Garing, Nelson Tabor and Javier Dagdagan, all of Poblacion II, Naujan, Oriental Mindoro. (p. 63, Rollo) On June 3, 1991, Mayor Melgar received the Order of Suspension (Annex "M", p. 63, Rollo). He forthwith filed a "Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the Regional Trial Court of Oriental Mindoro (Spl. Civil Action No. R5003) alleging that "the order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor (pp. 68-69, Rollo). On June 24, 1991, RTC Judge Virola issued a writ of preliminary injunction enjoining Governor Espiritu from implementing the Order of suspension against Mayor Melgar for: The Court is more inclined to believe the answer under oath of the respondent and the sworn statements of his witnesses attached to the Answer in the administrative case than the complaint under oath in the administrative case which are the evidence to be considered in determining whether or not the order of preventive suspension was issued in accordance with law. There is no reason to doubt the sworn statements of the numerous public school teachers and members of the PNP. Besides, the medical certificate issued in connection with the treatment of the complainant in the

administrative case tends to corroborate the theory of the respondent and contradict that of the complaint in the administrative case. The abrasions on the right arm of the complainant in the administrative case tend to show that said complainant was held tightly by the hands by the PNP because he was then drunk, in possession of a balisong knife and causing serious disturbance and not because he was boxed and kicked by herein petitioner. (pp. 7576, Rollo.) Governor Espiritu filed a motion to dismiss and/or for reconsideration which Judge Virola denied on July 16, 1991. Hence, this petition for certiorari and prohibition. Without giving due course to the petition, we required the private respondent to comment and we issued a Temporary Restraining Order commanding respondent Judge to cease and desist from further proceeding in Special Civil Action No. R-5003 (pp. 106-107, Rollo). On August 22, 1991, Mayor Melgar filed an "Urgent Motion to Lift Temporary Restraining Order" which the petitioner opposed and the Court denied (p. 127-155, Rollo). Petitioner submits that respondent Judge Virola acted without jurisdiction or with grave abuse of discretion in issuing: (1) the writ of preliminary injunction restraining Governor Espiritu from implementing the order of preventive suspension, and (2) in denying petitioner's motion to dismiss Special Civil Action No. R5003, for: a Petitioner, as Provincial Governor, is empowered by Section 63 of the Local Government Code to place an elective municipal official under preventive suspension pending decision of an administrative case against the elective municipal official:

b) Petitioner did not commit a grave abuse of discretion in placing respondent mayor under preventive suspension; if at all, his error was an error of judgment which is not correctible by certiorari; c) By express provision of Section 61 of the Local Government Code, the Sangguniang Panlalawigan has jurisdiction over complaints against any elective municipal official; on the other hand, Section 19(c) of the Judiciary Reorganization Act of 1980 withdraws from regional trial courts jurisdiction over cases within the exclusive jurisdiction of any person, tribunal or body exercising judicial or quasi-judicial functions. Thus, by practically deciding the administrative case on the merits, the respondent court acted without jurisdiction; and d) Respondent Mayor had a remedy of appeal under Section 66 of the Local Government Code. Section 63, Chapter IV of the Local Government Code provides: 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 anytime 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 the suspension. Clearly, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist: 1. When there is reasonable ground to believe that the respondent has committed the act or acts complained of; 2. When the evidence of culpability is strong; 3. When the gravity of the offense so warrants; or 4. 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. There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence (Nera vs. Garcia and Elicao, 106 Phil. 1031). Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible

witnesses (Lacson vs. Roque, 92 Phil. 456). Since respondent mayor believed that his preventive suspension was unjustified and politically motivated, he should have sought relief first from the Secretary of Interior and Local Government, not from the courts. Mayor Melgar's direct recourse to the courts without exhausting administrative remedies was premature (Aboitiz & Co. Inc. vs. Collector of Customs, 83 SCRA 265; Garcia vs. Teehankee, 27 SCRA 937; Manuel vs. Jimenez, 17 SCRA 55; Bongcawil vs. Provincial Board of Lanao del Norte, 10 SCRA 327; The Phil Veterans Affairs Office vs. Farias, et al., AC-G.R. SP No. 05937, July 5, 1985; Bonafe vs. Zurbano, 131 SCRA 9). The regional trial court had no jurisdiction over Special Civil Action No. R-5003 and gravely abused its discretion in refusing to dismiss the case. There may exist honest differences of opinion with regard to the seriousness of the charges, or as to whether they warrant disciplinary action. However, as a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and sufficiency of the cause ( 17 R.C.L. Sec. 233 cited in Attorney General vs. Doherty, 13 Am. Rep. 132). So, unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the principle of separation of powers demand that the action of said officer or body should be left undisturbed. However, in this particular case, since the 60-day preventive suspension of Mayor Melgar was maintained by the Temporary Restraining Order which we issued on August 6, 1991, and therefore has already been served, he is deemed reinstated in office without prejudice to the continuation of the administrative

investigation of the charges against him (Sec. 63, subpar. 3, Local Government Code). WHEREFORE, the petition for certiorari and prohibition is granted. The writ of preliminary injunction dated June 24, 1991 in Special Civil Action No. R-5003 is hereby annulled and set aside. Said Special Civil Action No. R-5003 is dismissed. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur. G.R. No. 94115 August 21, 1992 RODOLFO E. AGUINALDO, petitioner, vs. HON. LUIS SANTOS, as Secretary of the Department of Local Government, and MELVIN VARGAS, as Acting Governor of Cagayan, respondents. Victor I. Padilla for petitioner. Doroteo B. Laguna and Manuel T. Molina for private respondent.

Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm. Case No. P-10437-89 dismissing him as Governor of Cagayan on the ground that the power of the Secretary of Local Government to dismiss local government official under Section 14, Article I, Chapter 3 and Sections 60 to 67, Chapter 4 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code, was repealed by the effectivity of the 1987 Constitution. The pertinent facts are as follows: Petitioner was the duly elected Governor of the province of Cagayan, having been elected to said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom. He took his oath sometimes around March 1988. Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and a letter, both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or remove from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof. On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam, all in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was required to file a verified answer to the complaint. On January 5, 1990, the Department of Local Government received a letter from petitioner dated December 29, 1989 in reply to respondent Secretary's December 4, 1989 letter requiring him to

NOCON, J.: In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner Rodolfo E.

explain why should not be suspended or removed from office for disloyalty. In his letter, petitioner denied being privy to the planning of the coup or actively participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers.
1

committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it is an act punishable as rebellion under the Revised Penal Code. While this case was pending before this Court, petitioner filed his certificate of candidacy for the position of Governor of Cagayan for the May 11, 1992 elections. Three separate petitions for his disqualification were then filed against him, all based on the ground that he had been removed from office by virtue of the March 19, 1990 resolution of respondent Secretary. The commission on Elections granted the petitions by way of a resolution dated May 9, 1992. On the same day, acting upon a "Motion to Clarify" filed by petitioner, the Commission ruled that inasmuch as the resolutions of the Commission becomes final and executory only after five (5) days from promulgation, petitioner may still be voted upon as a candidate for governor pending the final outcome of the disqualification cases with his Court. Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30, entitled Rodolfo E. Aguinaldo v. Commission on Elections, et al., seeking to nullify the resolution of the Commission ordering his disqualification. The Court, in a resolution dated May 14, 1992, issued a temporary restraining order against the Commission to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the disqualification case, thereby allowing the canvassing of the votes and returns in Cagayan to proceed. However, the Commission was ordered not to proclaim a winner until this Court has decided the case. On June 9, 1992, a resolution was issued in the aforementioned

Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep and others. 2 On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice, pending the outcome of the formal investigation into the charges against him. During the hearing conducted on the charges against petitioner, complainants presented testimonial and documentary evidence to prove the charges. Petitioner neither presented evidence nor even cross-examined the complainant's witnesses, choosing instead to move that respondent Secretary inhibit himself from deciding the case, which motion was denied. Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his removal from office. Installed as Governor of Cagayan in the process was respondent Melvin Vargas, who was then the Vice-Governor of Cagayan. Petitioner relies on three grounds for the allowance of the petition, namely: (1) that the power of respondent Secretary to suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that since respondent Secretary no longer has power to suspend or remove petitioner, the former could not appoint respondent Melvin Vargas as Governor of Cagayan; and (3) the alleged act of disloyalty

case granting petition and annulling the May 9, 1992 resolution of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and is still pending review with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the way for his eventual proclamation as Governor of Cagayan. Under the environmental circumstances of the case, We find the petition meritorious. Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before Us moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al., supra,: . . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF CANDIDATES", attached to the "VERY URGENT MOTION FOR THE MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by petitioner shows that he received 170,382 votes while the other candidates for the same position received the following total number of votes: (1) Patricio T. Antonio 54,412, (2) Paquito F. Castillo 2,198; and (3) Florencio L. Vargas 48,129. xxx xxx xxx Considering the fact narrated, the expiration of petitioner's term of office during which the acts charged were allegedly committed, and his subsequent reelection, the petitioner must be dismissed for the reason that the issue has become academic. In Pascual v.

Provincial Board of Nueva Ecija, L-11959, October 31, 1959, this Court has ruled: The weight of authority, however, seems to incline to the ruled denying the right to remove from office because of misconduct during a prior term to which we fully subscribe. Offenses committed, or acts done, during a previous term are generally held not to furnish cause for removal and this is especially true were the Constitution provides that the penalty in proceeding for removal shall not extend beyond the removal from office, and disqualification from holding office for a term for which the officer was elected or appointed. (6 C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40 S.W. 23rd 418; People ex rel Bashaw v. Thompson, 130 P. 2nd 237; Board of Com'rs Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re Fedula, 147 A 67; State v. Wald, 43 S.W. 217) The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553. The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not

for the court, by reason of such fault or misconduct, to practically overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57 SCRA 163 [1974]) 3 Clear then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. The other grounds raised by petitioner deserve scant consideration. Petitioner contends that the power of respondent Secretary to suspend or remove local government officials as alter ego of the President, and as embodied in B.P. Blg. 337 has been repealed by the 1987 Constitution and which is now vested in the courts. We do not agree. The power of respondent Secretary to remove local government officials is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected by him. 4 The statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2 of which specifically provided as follows

Sec. 2. The National Assembly 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, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, power, functions, and duties of local government officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in the plebiscite called for the purpose. 5 A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads: Sec. 3. The Congress shall enact a local government code which shall provided for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment, and removal, term and salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. 6 Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it can not be said that BP Blg. 337 was repealed by the effective of the present Constitution.

Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the occasion to state that B.P. Blg. 337 remained in force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is approved. The power of respondent Secretary of the Department of Local Government to remove local elective government officials is found in Secs. 60 and 61 of B.P. Blg. 337. 8 As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the vice-governor . . . shall assume the office for the unexpired term of the former. 9 Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only substantial evidence. 10 WHEREFORE, petitioner is hereby GRANTED and the decision of

public respondent Secretary of Local Government dated March 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby REVERSED. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, GrioAquino, Medialdea, Regalado, Davide, Jr., Romero and Bellosillo, JJ., concur. Melo, J., took no part.

G.R. No. 120905 March 7, 1996 RENATO U. REYES, petitioner, vs. COMMISSION ELECTIONS, and ROGELIO DE CASTRO, respondents. G.R. No. 120940 March 7, 1996 JULIUS O. GARCIA, petitioner, vs. COMMISSION ELECTIONS, and RENATO U. REYES, respondents. ON ON

MENDOZA., J.:p For resolution are special civil actions of certiorari. The petition in G.R. No. 120905 seeks to annul the resolution dated May 9, 1995 of the Second Division of the Commission on Elections, declaring petitioner Renato U. Reyes disqualified from running for local office

and cancelling his certificate of candidacy, and the resolution dated July 3, 1995 of the Commission en banc, denying petitioner's motion for reconsideration. On the other hand, the petition in G.R. No. 120940, filed by Julius O. Garcia, has for its purpose the annulment of the aforesaid resolution of July 3, 1995 of the Commission en banc insofar as it denies his motion to be proclaimed the elected mayor of Bongabong, Oriental Mindoro, in view of the disqualification of Renato U. Reyes. On August 1, 1995, the Court issued a temporary restraining order directing the Commission on Elections en banc to cease and desist from implementing its resolution of July 3, 1995. It also ordered the two cases to be consolidated, inasmuch as they involved the same resolutions of the COMELEC. The facts are as follows: Petitioner Renato U. Reyes was the incumbent mayor of the municipality of Bongabong, Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994, an administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged, among other things, that petitioner exacted and collected P50,000,00 from each market stall holder in the Bongabong Public Market; that certain checks issued to him by the National Reconciliation and Development Program of the Department of Interior and Local Government were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27) heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and fattened the cattle for seven months.

In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office. It appears that earlier, after learning that the Sanggunian had terminated the proceedings in the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the proceedings had been terminated without giving him a chance to be heard. A temporary restraining order was issued by the court on February 7, 1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration of the temporary restraining order and without any injunction being issued by the Regional Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila. However, the latter refused to accept the decision. Subsequent attempts to serve the decision upon petitioner himself also failed, as he also refused to accept the decision. On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and peacefully turn over the office to the incumbent vice mayor. But service of the order upon petitioner was also refused. Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the Election Officer of the COMELEC in Bongabong. On March 24, 1995, private respondent Rogelio de Castro, as

registered voter of Bongabong, sought the disqualification of petitioner as candidate for mayor, citing the Local Government Code of 1991 (R.A. No .7160) which states: 40. Disqualification. The following persons are disqualified from running for any elective local position: .... (b) Those removed from office as a result of an administrative case. Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner Reyes was voted for in the elections held on May 8, 1995. On May 9, 1995, the COMELEC's Second Division issued the questioned resolution, the dispositive portion of which reads as follows: WHEREFORE, respondent having been removed from office by virtue of Administrative Case 006-94, he is hereby DISQUALIFIED from running for public office, in conformity with Section 40, paragraph (b) of the 1991 Local Government Code. The respondent's Certificate of Candidacy is CANCELLED in conformity with this resolution. The Election Officer of Bongabong, Oriental Mindoro is ordered to amend the official list of candidates in Bongabong to reflect the respondent's disqualification and to IMMEDIATELY circulate the amendment to the different Boards of Election Inspectors in Bongabong upon the receipt of this decision. On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by

the COMELEC, proclaimed him the duly-elected mayor. On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of the COMELEC's Second Division, but his motion was denied. The COMELEC en banc declared him to have been validly disqualified as candidate and, consequently, set aside his proclamation as municipal mayor of Bongabong. Hence the petition in G.R. No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the ground that the decision in the administrative case against petitioner Reyes was not yet final and executory and therefore could not be used as basis for his disqualification. It is contended that the charges against him were rendered moot and academic by the expiration of the term during which the acts complained of had allegedly been committed. Invoking the ruling in the case of Aguinaldo v. Santos, 1 petitioner argues that his election on May 8, 1995 is a bar to his disqualification. On the other hand, it appears that petitioner Julius M. Garcia, who obtained the second highest number of votes next to petitioner Reyes in the same elections of May 8, 1995, intervened in the COMELEC on June 13, 1995 (after the main decision disqualifying Renato Reyes was promulgated), contending that because Reyes was disqualified, he (Garcia) was entitled to be proclaimed mayor of Bongabong, Oriental Mindoro. In its resolution of July 3, 1995, the COMELEC en banc denied Garcia's prayer, citing the ruling in Republic v. De la Rosa 2 that a candidate who obtains the second highest number of votes in an election cannot be declared winner. Hence the petition in G.R. No. 120940. Petitioner contends that (1) the COMELEC en banc should have decided his petition at least 15 days before the May 8, 1995

elections as provided in 78 of the Omnibus Elections Code, and that because it failed to do so, many votes were invalidated which could have been for him had the voters been told earlier who were qualified to be candidates; (2) that the decision of the Sangguniang Panlalawigan was final and executory and resulted in the automatic disqualification of petitioner, and the COMELEC did not need much time to decide the case for disqualification against Reyes since the latter did not appeal the decision in the administrative case ordering his removal; (3) that the COMELEC should have considered the votes cast for Reyes as stray votes. After deliberating on the petitions filed in these cases, the Court resolved to dismiss them for lack of showing that the COMELEC committed grave abuse of discretion in issuing the resolutions in question. G.R. No. 120905 First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan, ordering him removed from office, is not yet final because he has not been served a copy thereof. It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated attempts had been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision. Manzo's certification states: On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of the decision to the Counsel for Respondent, Atty.

Rogelio V. Garcia, which said counsel refused to accept. On March 23, 1995, Mr. Mario I. C. Manzo, Secretary to the Sangguniang Panlalawigan with Mr. Marcelino B. Macatangay again went to the office of the Mayor of Bongabong to serve the decision. Mayor Renato U. Reyes, himself present, refused to accept the ORDER enforcing the decision citing particularly the pending case filed in the Sala of Judge Manuel A. Roman as the basis of his refusal. On [sic] 4:40 p.m., of the same date, the Secretary to the Sangguniang Panlalawigan, unable to serve the ORDER, mailed the same (registered mail receipt No. 432) on the Bongabong Post Office to forward the ORDER to the Office of Mayor Renato U. Reyes. On March 28, 1995 said registered mail was returned to the Sangguniang Panlalawigan with the following inscriptions on the back by the Postmaster: 1) 1st attempt addressee out of town 9:15 a.m., 3-23-95 2) 2nd attempt addressee cannot be contacted, out of town, 8:50 a.m., 3-24-95. 3) 3rd attempt addressee not contacted out of town 8:15 a.m., 3-24-95. 4) 4th attempt addressee refused to accept 8:15 a.m., 3-27-95. On March 24, 1995, Mr. Marcelino B. Macatangay, again went to

Bongabong to serve the same ORDER enforcing the decision. Mayor Renato U. Reyes was not present so the copy was left on the Mayor's Office with comments from the employees that they would not accept the same. 3 Rule 13, 3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. 4 Hence service was completed when the decision was served upon petitioner's counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995. 5 If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it. Indeed that petitioner's counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for certiorari in the Regional Trial Court was pending. 6 His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision.

The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final. In practice, service means the delivery or communication of a pleading, notice or other papers in a case to the opposite party so as to charge him with receipt of it, and subject him to its legal effect.
7

In the case at bar, petitioner was given sufficient notice of the decision. Prudence required that, rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160, 67. 8 But petitioner did not do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service upon petitioner. The net result is that when the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding. 9 Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. 10

In the case at bar, although a temporary restraining order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner. Petitioner claims that the decision cannot be served upon him because at the hearing held on February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the Sangguniang Panlalawigan pending final resolution of the petition for certiorari. The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan cannot bind the Sangguniang Panlalawigan. It was illegal . And it would have been no less illegal for the Sangguniang Panlalawigan to have carried it out because R.A. No. 7160, 66 (a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall immediately be furnished to respondent and/or interested parties." It was the Sangguniang Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner Reyes. Second. The next question is whether there election of petitioner rendered the administrative charges against him moot and academic. Petitioner invokes the ruling in Aguinaldo v. COMELEC, 11 in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer's previous misconduct to

the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. 12 Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the Court in the first Aguinaldo case: 13 The COMELEC applied Section 40(b) of the Local Government Code Republic Act 7160) which provides: Sec. 40. The following persons are disqualified from running for any elective local position:

..... (b) Those removed from office as a result of an administrative case. Republic Act 7160 took effect only on January 1, 1992. . . . There is no provision in the statute which would clearly indicate that the same operates retroactively. It, therefore, follows that 40(b) of the Local Government Code is not applicable to the present case. Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the then Secretary of Local Government was questioned by the petitioner in this Court and that to date, the petition remains unresolved. At any rate, petitioner's claim that he was not given time to present his evidence in the administrative case has no basis, as the following portion of the decision of the Sangguniang Panlalawigan makes clear: On November 28, 1994 the Sanggunian received from respondent's counsel a motion for extension of time to file a verified answer within 15 days from November 23, 1994. In the interest of justice another fifteen (15) day period was granted the respondent. On December 5, 1994 which is the last day for filing his answer, respondent instead filed a motion to dismiss and set the same for hearing on December 22, 1994. ....

On January 4, 1995, the motion to dismiss was denied for lack of merit and the order of denial was received by respondent on January 7, 1995. Considering the fact that the last day within which to file his answer fell on December 5, 1994, respondent is obliged to file the verified answer on January 7, 1995 when he received the order denying his motion to dismiss. In the hearing of the instant case on January 26, 1995, the counsel for the complainant manifested that he be allowed to present his evidence for failure of the respondent to file his answer albeit the lapse of 19 days from January 7, 1995. The manifestation of complainant's counsel was granted over the objection of the respondent, and the Sanggunian in open session, in the presence of the counsel for the respondent, issued an order dated January 26, 1995 quoted as follows: "As shown from the record of this case, Mayor Renato U. Reyes of Bongabong failed to file his answer within the time prescribed by law, after the motion to dismiss was denied by this Sanggunian. The Sanggunian declares that respondent Mayor Renato U. Reyes failed to file his answer to the complaint filed against him within the reglementary period of fifteen (15) days. Counsel for respondent requested for reconsideration twice, which oral motions for reconsideration were denied for lack of merit. Art. 126 (a) (1) provides that failure of respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf. It is important to note that this case should be heard in accordance

with what is provided for in the constitution that all parties are entitled to speedy disposition of their cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its authority to investigate this case come February 8, 1995 and therefore, in the interest of justice and truth the Sanggunian must exercise that authority by pursuing the hearing of this case. Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will present his evidence on February 2, 3, and 6, 1995, and the counsel for respondent will be given a chance to cross-examine the witnesses that may be presented thereat." ....

judicial, quasi-judicial, or administrative bodies (Sec. 16, Art. III of the Constitution). Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election. G.R. No. 120940

On February 2, 1995, the respondent through counsel despite due notice in open session, and by registered mail (registry receipt no. 1495) dated January 27, 1995, failed to appear. No telegram was received by this body to the effect that he will appear on any of the dates stated in the Order of January 26, 1995. Indeed, such in action is a waiver of the respondent to whatever rights he may have under our laws. All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however, he resorted to dilatory motions which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations implementing the Local Government Code of 1991). All persons shall have the right to a speedy disposition of their cases before all

We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes. That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. 14 The doctrinal instability caused by see-sawing rulings 15 has since been removed. In the latest ruling 16 on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the

disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. 17 The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him. As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not deciding the case before the date of the election, suffice it to say that under R.A. No. 6646, 6, the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong. For the same reason, we find no merit in the argument that the COMELEC should have seen right away that Reyes had not exhausted administrative remedies by appealing the decision of the Sangguniang Panlalawigan and, therefore, should have disqualified him before the elections. WHEREFORE, the petition in G.R. 120905 and G.R. No, 120940 are DISMISSED for lack of merit. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur. Separate Opinions PADILLA, J., concurring and dissenting:

Separate Opinions

PADILLA, J., concurring and dissenting: In concur in the ponencia of Mr. Justice V. Mendoza except insofar as it reiterates case law that where a first placer in an election is disqualified and cannot be proclaimed, the second placer cannot likewise be declared elected and proclaimed. I reiterate my opinion expressed in Marcos vs. Montejo, G.R. No. 119976, 18 September 1995, that when a first placer is disqualified, the qualified candidate with the highest number of votes should be proclaimed. In the case at bench, G.R. No. 120940, petitioner Garcia should have been proclaimed the elected mayor of Bongabong, Oriental Mindoro because he was the candidate with qualifications for the office who received the highest number of votes (after Renato U. Reyes was declared disqualified).

In concur in the ponencia of Mr. Justice V. Mendoza except insofar as it reiterates case law that where a first placer in an election is disqualified and cannot be proclaimed, the second placer cannot likewise be declared elected and proclaimed. I reiterate my opinion expressed in Marcos vs. Montejo, G.R. No. 119976, 18 September 1995, that when a first placer is disqualified, the qualified candidate with the highest number of votes should be proclaimed. In the case at bench, G.R. No. 120940, petitioner Garcia should have been proclaimed the elected mayor of Bongabong, Oriental Mindoro because he was the candidate with qualifications for the office who received the highest number of votes (after Renato U. Reyes was declared disqualified). G.R. No. 108072 December 12, 1995 HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the Visayas, petitioner, vs. HON. MERCEDES GOZODADOLE, 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.

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. 8 Councilors 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.

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

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 counteraffidavits 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-VISADM-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: 1) Expanding the restraining order dated September 25, 1992 issued by the Court into an Order for the issuance of a writ of preliminary injunction upon the posting of the petitioners of the bond in the amount of Fifty thousand pesos (P50,000.00) conditioned that the latter will pay all the costs that may be adjudged to the adverse party and/or damages which he may sustain by reason of the injunction, if the Court will finally adjudge that the petitioners are not entitled thereto, and 2) Denying the respondent's Motion to Dismiss dated September

28, 1992 for lack of merit. SO ORDERED. 12 A writ of preliminary injunction was issued on 21 October 1992. 13 A motion for reconsideration made by petitioner was denied by the trial court. The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent judge be directed to desist from further proceeding with RTC Case No. MDE-14. There is merit in the petition. The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the 1987 Constitution, 14 thus: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; while his statutory mandate to act on administrative complaints is contained in Section 19 of R.A. No. 6770 that reads: Sec. 19. Administrative complaints. The Ombudsman shall act

on all complaints relating, but not limited, to acts or omissions which: 1. Are contrary to law or regulation; 2. Are unreasonable, unfair, oppressive or discriminatory; 3. Are inconsistent with the general course of an agency's functions, though in accordance with law; 4. Proceed from a mistake of law or an arbitrary ascertainment of facts; 5. Are in the exercise of discretionary powers but for an improper purpose; or 6. Are otherwise irregular, immoral or devoid of justification. Section 21 of the same statute names the officials who could be subject to the disciplinary authority of the Ombudsman, viz.: Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied) Taken in conjunction with Section 24 of R.A. No. 6770, petitioner

thus contends that the Office of the Ombudsman correspondingly has the authority to decree preventive suspension on any public officer or employee under investigation by it. Said section of the law provides: Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment, the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman over local officials must be deemed to have been removed by the subsequent enactment of the Local Government Code of 1991 which vests the authority to investigate administrative charges, listed under Section 60 15 thereof, on various offices. In the case specifically of complaints against elective officials of provinces and highly urbanized cities, the Code states: Sec. 61. Form and Filing of Administrative Complaints. A verified

complaint against any erring local elective officials shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President. Thus respondents insist, conformably with Section 63 of the Local Government Code, preventive suspension can only be imposed by: ". . . the President if the respondent is an elective official of a province, a highly urbanized or an independent component city; . . . " under sub-paragraph (b) thereof: (b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. In his comment, which the Court required considering that any final resolution of the case would be a matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as having conferred, but not on an exclusive basis, on the Office of the President (and the various Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did

not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a constitutional mandate. In passing, the Solicitor General has also opined that the appropriate remedy that should have been pursued by respondent officials is a petition for certiorari before this Court rather than their petition for prohibition filed with the Regional Trial Court. Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are not favored, 16 and that courts must generally assume their congruent application. 17 The two laws must be absolutely incompatible, 18 and a clear finding thereof must surface, before the inference of implied repeal may be drawn. 19 The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. 20 The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. 21 Hence, all doubts must be resolved against any implied repeal, 22 and all efforts should be exerted in order to harmonize and give effect to all laws on the subject. 23 Certainly, Congress would not have intended to do injustice to the very reason that underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long tentacles of officialdom." 24 Quite interestingly, Sections 61 and 63 of the present Local

Government Code run almost parallel with the provisions then existing under the old code. Section 61 and Section 63 of the precursor local Government Code of 1983, 25 under the heading of "Suspension and Removal," read: Sec. 61. Form and Filing of Complaints. Verified complaints against local elective officials shall be prepared as follows: (a) Against any elective provincial or city official, before the Minister of Local Government. Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official. (2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension. (3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the

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

evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when he caused the issuance of the preventive suspension order without any hearing. The contention is without merit. The records reveal that petitioner issued the order of preventive suspension after the filing (a) by respondent officials of their opposition on the motion for preventive suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a 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.

Moreover, respondent officials were, in point of fact, put preventive suspension only after petitioner had found, consonance with our ruling in Buenaseda vs. Flavier, 28 that evidence of guilt was strong. Petitioner gave his justification for preventive suspension in this wise:

on in the the

After a careful and honest scrutiny of the evidence submitted on record, at this stage, it is the holding of this office that the evidence of guilt against the respondents in the instant case is strong. There is no question that the charge against the respondents involves dishonesty or gross misconduct which would warrant their removal from the service and there is no gainsaying the fact that the charge for falsification of veritable documents like city ordinances are very serious charges that affect the very foundations of duly established representative governments. Finally, it is likewise the holding of this office at this stage that the continued stay in office of respondents may prejudice the judicious investigation and resolution of the instant case. 29 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) 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.

G.R. Nos. 117589-92 May 22, 1996 ROMEO R. SALALIMA, DANILO S. AZAA, JUAN VICTORIA, LORENZO REYEG, ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR RONTAS and NEMESIO BACLAO, petitioners, vs. HON. TEOFISTO T. GUINGONA, in his capacity as the Executive Secretary, VICTOR R. SUMULONG, RENATO C. CORONA and ANGEL V. SALDIVAR, in their capacity as Members of the Ad Hoc Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM, JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR, RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR. SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as ACTING GOVERNOR, ACTING VICEGOVERNOR, and ACTING MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF ALBAY, respectively, respondents.

DAVIDE, JR., J.:p Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of authority under Section 60 (e) of the Local Government Code of

1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60 (c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to be served successively but not to go beyond their respective unexpired terms in accordance with Section 66 (b) of R.A. No. 7160. Prefacing the petition with a claim that the challenged administrative order is "an oppressive and capricious exercise of executive power," the petitioners submit that: I. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE. II. THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE

WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,471.74 PAID BY NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992. III. THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE: A. WHAT WERE NOT COMPLAINED OF; B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY COVERED BY PRESCRIPTION. IV. THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT SITTING EN BANC. We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far submitted, after due consideration of the satisfactory explanation of the petitioners that his case has not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the Office of the

Solicitor General that this case be resolved on the merits. In seeking a resolution of this case on the merits, the office of the Solicitor General invites the attention of the Court to the following: (a) While the periods of suspension have been served by petitioners and that some of them have even been elected to other government positions, there is the primary issue of whether the suspensions were valid and grounded on sufficient cause. (b) If the suspensions are found to be valid, petitioners are not entitled to reimbursement of salaries during their suspension period. (c) If upheld, Administrative Order No. 15, would be used as a strong ground in filing cases against petitioners for violations of the Anti Graft and Corrupt Practices Act. (d) Corollary [sic] to these issues is the issue of the interpretation and application of the [R]eal Property Tax Code and the Local Government Code under the circumstances of this case. (e) The resolution of these issues would finally put to rest whether respondents acted with grave abuse of discretion amounting to lack of jurisdiction for having suspended petitioners on the basis of their findings in the four (4) administrative cases filed against the petitioners. The factual antecedents are not complicated. Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President and later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the

President issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its findings and recommendations. The Ad Hoc committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar. On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President. On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval the following pertinent findings and recommendations of the Committee; thus: The finding of the Ad-Hoc Committee in OP Case Nos. 547(1, 5469, 5471 and 5450 are as follows I. OP Case No. 5470 This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, ViceGovernor Danilo Azaa, and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go [S]r., Jesus Marcellana, Ramon Fernandez, Jr. Masikap Fontilla, and Wilbor Rontas. Docketed as OP Case No. 5470, the complaint charges the respondents for malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the "Local Government Code."

The antecedent facts are as follows: On 4 June 1990, the Supreme Court in the case entitled "National Power Corporation (NPC) v. The Province of Albay, et al.", G.R. No. 87479 rendered judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties in Albay covering the period 11 June 1984 to 10 March 1987. Citing the fact that its tax exemption privileges had been revoked, the Supreme Court held that NPC's real properties, consisting mainly of geothermal plants in Tiwi and substation facilities in Daraga, are subject to real estate tax in accordance with Presidential Decree (PD) No. 464, as amended, otherwise known as the "Real Property Tax Decree." Earlier, said properties were sold at an auction sale conducted by the Province of Albay (the "Province") to satisfy NPC's tax liabilities. Being the sole bidder at the auction, the Province acquired ownership over said properties. On 29 July 1992, the NPC through then President Pablo Malixi and the Province represented by respondent Salalima, entered into a Memorandum of agreement ("MOA") [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then estimated at P214,845,104.76. Under the MOA, the parties agreed that: the actual amount collectible from NPC will have to be recomputed/revalidated; NPC shall make an initial payment of P17,763,000.00 upon

signing of the agreement; the balance of the recomputed/revalidated amount (less the aforesaid initial payment), shall be paid in twenty-four (24) equal monthly installments to commence in September 1992; and ownership over the auctioned properties shall revert to NPC upon satisfaction of the tax liabilities. On 3 August 1992, Mayor Corral formally requested the Province through respondent Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where NPC's properties are located ("concerned barangays") relative to the payments made by NPC (Exh. B). On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution No. 12-91 (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold a joint session with the former together with Mayor Corral and the Sangguniang Pambarangays of the concerned barangays, for the purpose of discussing the distribution or application of the NPC payments. On 10 August 1992, respondent Salalima replied that the request cannot be granted as the initial payment amounting to P17,763,000.00 was only an "earnest money" and that the total amount to be collected from NPC was still being validated (Exh. 1). Not satisfied with respondent Salalima's response, Mayor Corral complained to NPC about the Province's failure to remit Tiwi's and the concerned barangays' shares in the payments made by NPC (Exh. 50-C).

On 14 August 1992, President Malixi informed respondent Salalima that the representatives of both NPC and the Province have reconciled their accounts and determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20). Due to the brewing misunderstanding between Tiwi and the concerned barangays on the one hand, and the Province on the other, and so as not to be caught in the middle of the controversy, NPC requested a clarification from the Office of the President as to the scope and extent of the shares of local government units in real estate tax collections (Exh. 6 to 6-A). Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92 dated 8 October 1992 (Exh. R) and Resolution No. 20492 dated 5 November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,431.58 or a total of P27,442,364.15 from the general fund to satisfy "prior years" obligations and to implement certain projects of the Province. These resolutions were approved by respondent Salalima on 22 October 1992 and 6 November 1992, respectively. On 3 December 1992, the Office of the President through Chief Presidential Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province merely recognized and established NPC's tax liability. He further clarified that the sharing scheme and those entitled to the payments to be made by NPC under the MOA should be that provided under the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit such share directly to Tiwi. The pertinent portion of Chief Presidential Legal Counsel Carpio's letter dated 3 December 1992 (Exhs. H to H-1) addressed to President Malixi reads:

xxx xxx xxx The Memorandum of Agreement entered into by the Province of Albay and NPC merely enunciates the tax liability of NPC. The Memorandum of Agreement does not provide for the manner of payment of NPC's liability. Thus, the manner of payment as provided for by law shall govern. In any event, the Memorandum of Agreement cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi. The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only establishes the liability of NPC for real property taxes but does not specifically provide that said back taxes be paid exclusively to Albay province. Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi the real property taxes accruing to the same. Please be guided accordingly. Very truly yours, (Sgd.) ANTONIO T. CARPIO Chief Presidential Legal Counsel Because of this opinion, President Malixi, through a letter dated 9 December 1992 (Exh. I to I-1), informed Mayor Corral and respondent Salalima that starting with the January 1993 installment, NPC will directly pay Tiwi its share in the payments under the MOA. He also invited the parties to a clarificatory meeting on 17

December 1992 at his Quezon City office to discuss the matter in detail. Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as respondent Salalima was indisposed. President Malixi then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments already made by NPC under the MOA and the computation and the distribution of shares. As of 9 December 1992, payments made by NPC to the Province reached P40,724,471.74, broken down as follows: Payment Dates Amount July 29, 1992 P 17,763,000.00 Sept. 3, 1992 4,660,255.80 Oct. 5, 1992 6,820,480.02 Nov. 5, 1992 5,740,367.96 Dec. 9, 1992 5,740,367.96 Total P 40,724,471.74 On 19 December 1992, in an apparent reaction to NPC's decision to directly remit to Tiwi its share in the payments made and still to be made pursuant to the MOA, the Albay Sangguniang

Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1), which, among others: authorized the Provincial Treasurer upon the direction of the Provincial Governor to sell the real properties (acquired by the Province at the auction sale) at a public auction, and to cause the immediate transfer thereof to the winning bidder; and declared as forfeited in favor of the Province, all the payments already made by NPC under the MOA. Realizing from the actuations of the respondents that Tiwi's share in the P40,724,471.74 payments already made by NPC will not be forthcoming, Mayor Corral filed the present complaint with the Office of the President on 25 January 1993. In determining whether the respondents are guilty of the charges against them, the threshold issue of whether the payments to be made by NPC under the MOA should accrue solely and exclusively in favor of the Province, must first be resolved. Sections 38, 39, 41, 86 and 87 of PD No. 464, as amended, prescribe the authority of local government units to levy real property tax as well as the sharing scheme among local government units including the national government with respect thereto. Said provisions read: Sec. 38. Incidence of Real Property Tax. There shall be levied, assessed, and collected in all provinces, cities and municipalities an annual ad valorem tax on real property, such as land, buildings, machinery and the improvements affixed or attached to real property not hereinafter specifically exempted.

Sec. 39. Rates of Levy. The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities as follows: (1) In the case of a province, the tax shall be fixed by ordinance of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property; (2) In the case of a city, the tax shall be fixed by ordinance of the municipal board or city council at the rate of not less than one-half of one percent but not more than two percent of the assessed value of real property; and (3) In the case of a municipality, the tax shall be fixed by ordinance of the municipal council subject to the approval of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property. Sec. 41. An additional one percent tax on real property for the Special Education Fund. There is hereby imposed an annual tax of one percent on real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; Provided, That real property granted exemption under Section 40 of this code shall also be exempt from the imposition accruing to the Special Education Fund. (as amended by PD No. 1913). Sec. 86. Distribution of proceeds. (a) The proceeds of the real property tax, except as otherwise provided in this Code, shall

accrue to the province, city or municipality where the property subject to the tax is situated and shall be applied by the respective local government unit for its own use and benefit. (b) Barrio shares in real property tax collections. The annual shares of the barrios in real property tax collections shall be as follows: (1) Five percent of the real property tax collections of the province and another five percent of the collections of the municipality shall accrue to the barrio where the property subject to the tax is situated. (2) In the case of the city, ten percent of the collections of the tax shall likewise accrue to the barrio where the property is situated. xxx xxx xxx Sec. 87. Application of proceeds. (a) The proceeds of the real property tax pertaining to the city and to the municipality shall accrue entirely to their respective general funds. In the case of the province, one-fourth thereof shall accrue to its road and bridge fund and remaining three-fourths of its general fund. (b) The entire proceeds of the additional one percent real property tax Levied for the Special Education Fund created under R.A. No. 6447 collected in the province or city on real property situated in their respective territorial jurisdictions shall be distributed as follows: (1) Collections in the provinces: Fifty-five percent shall accrue to the municipality where the property subject to the tax is situated; twenty-five percent shall accrue to the province; and twenty percent

shall be remitted to the Treasurer of the Philippines. (as amended by PD No. 1969). xxx xxx xxx (c) The proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof, shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes had been paid in regular course. xxx xxx xxx (Emphasis supplied) The foregoing provisions clearly show that local government units may levy and collect real property tax ranging from a low of onefourth of one percent (0.25%) to a high of two percent (2.0%) of the assessed value of real property depending on the local government unit levying the same. It is likewise clear that a province, a municipality and a city may each separately levy said tax on real property located within their respective jurisdictions but not exceeding the rates prescribed under Sec. 39 of PD No. 464. And apart from said basic tax; the law authorizes the collection of an additional tax equivalent to one percent (1.0%) of the assessed value of the real property to accrue to the Special Education Fund (SEF). In accordance with the authority confirmed upon them by PD No. 464, the following tax resolutions or ordinances were passed:

By the province Resolution No. 30, series of 1974, of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4 whose Section 1, provides: There shall be levied, assessed and collected an annual ad valorem tax on real properties including improvements thereon equivalent to one-half of one percent of the assessed value of real property. By the Municipality of Tiwi Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides: That the tax rate of real property shall be one-half of one percent of the assessed value of real property. By the Municipality of Daraga Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides: Rates of Levy The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50-G; Emphasis supplied). Applying said rates of levy, the real property taxes collectible from the NPC are: 1. A basic tax of 1%, levied by the Province (0.5%) and Tiwi (0.5%)

on the one hand; and the Province (0.5%) and Daraga (0.5%) on the other; and 2. The additional 1% tax pertaining to the SEF. or a total of 2.0% on the assessed value of NPC's real properties.

Total 100.0% In real terms, the P40,724,471.74 in payments earlier made by NPC should be shared by the Province, Tiwi and Daraga, the concerned barangays and the national government, as follows: Province Municipalities Barangay Natl. Govt.

On the other hand, sharing on said taxes, shall be as follows: Basic Tax 1. On the basic tax: P 9,672,062.04 9,672,062.04 1,018,111.79 none Province 47.5% SEF Municipality 47.5% 4,072,447.18 10,181,117.93 none 6,108,670.76 Barangay 5.0% Total Total 100.0% P13,744,509.22 19,853,179.97 1,018,111.79 6,108,670.76 2. On the additional tax pertaining to the SEF: =========== ========== ========= ========= Province 25.0% Municipality 55.0% National Government 20.0% This shows that the Province is entitled only to P13,744,509.21 of the P40,724,471.74 aggregate payments by NPC. On the other hand, the balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned barangays and the national government. The Province maintains, however, that considering that it acquired

ownership over the properties of NPC subject matter of the auction, all the payments to be made by NPC under the MOA should accrue exclusively to the Province. This is untenable. The law clearly provides that "the proceeds of all the delinquent taxes and penalties as well as the income realized from the . . . disposition of real property acquired by the province or city at a public auction . . ., and the sale of delinquent property or the redemption thereof shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes have been paid in the regular course" (Sec. 87(c) supra.). It is immaterial that the Province was the highest bidder and eventually became the owner of the properties sold at the auction sale. What is essential is that the proceeds of the re-sale of said properties acquired by the Province, be distributed in the same manner and proportion among the rightful beneficiaries thereof as provided by law. This was the import and essence of Chief Presidential Legal Counsel Carpio's opinion when he stated that the sharing scheme provided by law cannot be amended by a mere agreement between the taxpayer, in this case NPC, and the collecting authority, in this instance, the Province of Albay. Likewise, it is axiomatic that while "contracting parties may establish stipulations, clauses, terms and conditions as they may deem convenient", they may not do so if these are "contrary to law, morals, good customs, public order or public policy" (Art 1306, New Civil Code.). Also relevant to the discussion are the following provisions of the

Local Government Code of 1991: Sec. 307. Remittance of Government Monies to the Local Treasury. Officers of local government authorized to receive and collect monies arising from taxes, revenues, or receipts of any kind shall remit the full amount received and collected to the treasury of such Local government unit which shall be credited to the particular account or accounts to which the monies in question properly belong. Sec. 308. Local Funds. Every local government unit shall maintain a General Fund which shall be used to account for such monies and resources as may be received by and disbursed from the local treasury. The General Fund shall consist of monies and resources of the local government which are available for the payment of expenditures, obligations or purposes not specifically declared by law as accruing and chargeable to, or payable from any other fund. Sec. 309. Special Funds. There shall be maintained in every provincial, city, or municipal treasury the following special funds: (a) Special Education Fund (SEF) shall consist of the respective shares of provinces, cities, municipalities and barangays in the proceeds of the additional tax on real property to be appropriated for purposes prescribed in Section 272 of this Code; and (b) Trust Funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose

for which it was created or for which it came into the possession of the Local government unit. (Emphasis supplied). These provisions are restatements of Sec. 3(4) and (5) of PD No. 1445 and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise known as the "Administrative Code of 1987." It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as amended). Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations. However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAG) of the Commission on Audit (COA) further support our findings, thus xxx xxx xxx Part II. Findings and Observations The audit findings, which are discussed in detail in the attached report, are summarized below: 1. The remittances of the NPC of the P40,724,471.74 from July to December 1992 representing partial payments of real tax delinquencies from June 22, 1984 to March 10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the concerned barangays and the National Government in violation of PD 464. The Memorandum of Agreement entered into between the Province of Albay and Napocor cannot amend the provisions of PD 464 which specifies the sharing scheme of the real property tax among the province, city or municipality where the property subject to tax is situated and the National Government. xxx xxx xxx 2. The collection of P40,724,471.74 was fully treated as surplus adjustment (Account 7-92-419) being prior years income, without creating a trust liability for the municipality and barangays concerned and national government. As of December 31, 1992, the balance of the account was only P25,668,653.12 thus, stressing that P15,255,818.62 was spent. . . . Under the General Fund, cash available was only P4,921,353.44 leaving practically no cash to answer for the shares of the Municipalities of Tiwi and Daraga and

their barangays where the properties are located. (pp. 4 and 16; (Emphasis supplied). xxx xxx xxx

Less Share of the Province 13,744,509.21 Amount Illegally Disbursed by the Province P22,058,609.09

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

=========== We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as forfeited in favor of the Province the entire amount of P40,724,471.74 paid by NPC to be patently illegal as it unlawfully deprives Tiwi and Daraga, the barangays concerned, and the national government of their rightful shares in said payments. Being illegal, said ordinance may not be used or relied upon by the respondents to justify the disbursements of funds in excess of their share. Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements considering that the appropriations made thereunder totalling P27,442,364.51 are to be funded by the P40,724,471.74 "surplus adjustment" that includes the "trust funds" not belonging to the Province. Even assuring that Resolution No. 178-92 authorizing the expenditure of P9,778,912.57 were to be taken from the Province's share amounting to P13,744,509.21, the rest of the disbursements still have no legal basis. Clearly, this is violative of the fundamental rule that "(n)o money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law" (par [a], Sec. 305, Republic Act No. 7160). Respondents raise the common defense that the findings obtained in SAO Report No. 93-11 are not yet final as they have filed an appeal therefrom.

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries. Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence. Respondents' contention that COA's factual findings, contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative or criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court. Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts. Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report, 93-11 to enable this Committee to evaluate the merits of the instant complaint. We also reject respondent Azaa's defense that since he did not

participate in the deliberation and passage of Resolution No. 09-92, merely signing the same as presiding officer of the Sangguniang Panlalawigan, and only certifying that the same had been passed, he did not incur any administrative liability. The fact remains that as presiding officer of the Sangguniang Panlalawigan and being the second highest official of the Province, respondent Azaa is jointly responsible with other provincial officials in the administration of fiscal and financial transactions of the Province. As presiding officer of the Sangguniang Panlalawigan, respondent Azaa has a duty to see to it that resolutions or ordinances passed are within the bounds of the law. He cannot merely preside over the sessions of the Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or ordinances being proposed or deliberated upon by his colleagues. This collective responsibility is provided under Secs. 304 and 305 of Republic Act. No. 7160, thus Sec. 304. Scope. This Title shall govern the conduct and management of financial affairs, transactions and operations of provinces, cities, municipalities, and barangays. Sec. 305. Fundamental Principles. The financial affairs, transactions, and operations of local government units shall be governed by the following fundamental principles: xxx xxx xxx (1) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of local government units; and

xxx xxx xxx (Emphasis supplied) It cannot be denied that the Sangguniang Panlalawigan has control over the Province's "purse" as it may approve or not resolutions or ordinances generating revenue or imposing taxes all well as appropriating and authorizing the disbursement of funds to meet operational requirements or for the prosecution of projects. Being entrusted with such responsibility, the provincial governor, vice-governor and the members of the Sangguniang Panlalawigan, must always be guided by the so-called "fundamental" principles enunciated under the Local Government Code, i.e., "No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; local revenue is generated only from sources authorized by law or ordinance and collection thereof shall at all times be acknowledged properly; all monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; and trust funds in the local treasury shall not be paid out except in fulfillment of the purposes for which the trust was created or the funds received" (Sec. 305, R.A. 7160). All the respondents could not claim ignorance of the law especially with respect to the provisions of PD No. 464 that lay down the sharing scheme among local government units concerned and the national government, for both the basic real property tax and additional tax pertaining to the Special Education Fund. Nor can they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC considering that the Province is only entitled to a portion thereof and that the balance was merely being held in trust for the other beneficiaries.

As a public officer, respondent Azaa (and the other respondents as well) has a duty to protect the interests not only of the Province but also of the municipalities of Tiwi and Daraga and even the national government. When the passage of an illegal or unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act accordingly, but actively opposing the same by temporarily relinquishing his chair and participating in the deliberations. If his colleagues insist on its passage, he should make known his opposition thereto by placing the same on record. No evidence or any sort was shown in this regard by respondent Azaa. Clearly, all the respondents have, whether by act or omission, denied the other beneficiaries of their rightful shares in the tax delinquency payments made by the NPC and caused the illegal forfeiture, appropriation and disbursement of funds not belonging to the Province, through the passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-92. The foregoing factual setting shows a wanton disregard of law on the part of the respondents tantamount to abuse of authority. Moreover, the illegal disbursements made can qualify as technical malversation. This Committee, thus, finds all the respondents guilty of abuse of authority, and acccordingly, recommends the imposition of the following penalties of suspension without pay: a. Respondent Salalima five (5) months; and

b. All the other respondents four (4) months each. II. OP Case No. 5469 This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azaa, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint was docketed as OP Case No. 5469. The antecedent facts are as follows. Because of the refusal by the National Power Corporation ("NPC") to pay real property taxes assessed by the Province of Albay ("the Province") covering the period from 11 June 1984 up to 10 March 1987 amounting to P214,845,184.76, the Province sold at public auction the properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale. As NPC failed to redeem its properties sold at the auction, the Province petitioned the Regional Trial Court in Tabaco, Albay to

issue a writ of possession over the same. Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed as G.R. No. 87479, questioning the validity of the auction sale conducted by the Province. NPC claims, inter alia, that its properties are not subject to real property tax. On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed it; comment on the NPC petition with the Supreme Court. On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 (Exhs. B to B-1) authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC. On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479. The entry of appearance of Atty. Cornago bore the conformity of respondent Governor. On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth the conditions of the retainer agreement, thus: As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R.

Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 million, payable to us in the event that we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also. On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 (Exhs. C to C-1) authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm. Respondent Salalima signed the retainer agreement. On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the province to answer for NPC's tax liabilities. Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-1) were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago: Particulars Claimant/Payee Amount Disbursement Cortes & Reyna P 60,508.75 Voucher (DV No. 4, Jan. 8, 1990 Check No. 931019

DV No. 1889 Atty. Antonio Jose Cortes P 1,421,040.00 Aug. 13, 1992; Check No. 236063-S DV No. 1890 Atty. Jesus R. Cornago P 1,736,300.00 Aug. 13, 1992; Check No. 236064-S DV No. 2151 Atty. Antonio Jose Cortes P 838,851.44 Sept. 28, 1992; Check No. 238174-S DV No. 2226 Atty. Antonio Jose Cortes P 886,662.40 Oct. 8, 1992; Check No. 239528-S DV No. 2227 Atty. Jesus R. Cornago P 341,024.00 Oct. 8, 1992; Check No. 239529-S DV No. 2474 Atty. Jesus R. Cornago P 287,018.40 Nov. 6, 1992; Check No. 250933 DV No. 2475 Atty. Antonio Jose Cortes P 746,247.83 Dec. 9, 1992; Check No. 253163 DV No. 2751 Atty. Antonio Jose Cortes P 747,247.84 Dec. 9, 1992; Check No. 253163

DV No. 2752 Atty. Jesus R. Cornago P 267,018.40 Dec. 9, 1992; Check No. 253164 TOTAL P 7,380,410.31 Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaa. The rest were approved by respondent Governor. In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent Governor that payments made by the Province as attorney's fees amounting to P7,380,410.31 have been disallowed by the Commission on Audit (COA) with the following notation: The disbursement vouchers detailed hereunder represent payments for attorney's fees of Cortes & Reyna Law Office for Legal services rendered re: G.R. No. 87479 "NAPOCOR, Petitioner vs. The Province of Albay, et al., Respondent," Supreme Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the requisite "prior written conformity and acquiescence of the Solicitor General . . . as well as the written concurrence of the Commission on Audit" as provided for and required under COA Circular No. 86255 dated April 2, 1986, re: "Inhibition against employment by government: agencies and instrumentalities . . . of private lawyers to handle their legal cases," viz. The complaint alleges that by entering into the retainer agreement

with private lawyers and paying P7,380,410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorney's fees. The sole issue in this case is whether or not respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the province. We find merit in the complaint and hold that under the circumstances surrounding the transaction in question, the respondents abused their authority. Sec. 481 of the Local Government Code (RA. No. 7160) requires the appointment of a legal officer for the province whose functions include the following: Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent

the adverse party. The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93 Phil 173 (1953), that local governments [sic] units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus: Under the law, the Provincial Fiscal of Bulacan and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions . . . It would seem clear that the Provincial Fiscal is the only counsel who can rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers hired by the Province of Bulacan] have no standing in the case. The appeal herein interposed in behalf of the plaintiffs cannot therefore be maintained. This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case of Municipality of Bocaue, et al. v. Manotok. In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court. Moreover, the entire transaction was attended by irregularities. First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit

(COA) as required by COA Circular No. 86-255 dated 2 April 1986. The respondents attempted to dispute this finding by presenting the Solicitor General's conformity dated 15 July 3993. This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 85-255 is a prior written conformity and acquiescence of the Solicitor General. Another irregularity in the transaction concerns the lawyers. Resolution No. 01-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retainer contract itself: As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

xxx xxx xxx Very truly yours, CORTES & REYNA LAW FIRM -andAtty. JESUS R. CORNAGO Jamecca Building 280 Tomas Morato Avenue by: (Sgd.) ANTONIO JOSE F. CORTES With my conformity: (Sgd) GOV. ROMEO R. SALALIMA Province of Albay (emphasis supplied.) In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90.

Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case (G R. No. 87479). We quote the entry of appearance of Atty. Cornago in full in said case: APPEARANCE COMES NOW, the undersigned counsel, and to this Honorable Supreme Court, respectfully enters his appearance as counsel for the respondents in the above-entitled case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the respondents. This appearance bears the conformity of the respondent Gov. Romeo R. Salalima, as shown by his signature appearing at the space indicated below. In this connection, it is respectfully requested that, henceforth, the undersigned counsel be furnished with a copy of all notices, orders, resolutions and other matters that may be issued in this case at its office address indicated below. Quezon City, for Manila, August 24, 1989. (Sgd.) JESUS R. CORNAGO Counsel for Respondents 280 Tomas Morato Avenue Quezon City PTR No. 561005-'89 Mandaluyong

IBP No. 279351-'89 Pasig, MM With my conformity: (Sgd) ROMEO R. SALALIMA Respondent Office of the Governor of Albay Legaspi City Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm, thus: Incidentally, a check with our office records of the case G.R. No. 87479 reveals that the Province of Albay and its officials named respondents therein were represented in the Supreme Court by Atty. Romulo Ricafort the Province's Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance was entered therein by the Cortes & Reyna Law Firm. (Emphasis supplied.) Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law

Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479. Finally, the attorney's fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable. The contingent fee of 18% of the "P214 million" claim of the Province against NPC amounts to P38.5 million. The word "unconscionable", as applied to attorney's fee, "means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him." (Moran, Comments on the Rules of Court, Vol. 6, p. 236.) The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC's petition against the Province. The comment filed by Atty. Ricafort already covers the basic issues raised in the petition. When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million. Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College, thus:

SECRETARY CORONA: May I ask a question Governor, what was your basis for choosing this particular law office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this particular Law office? Frankly, I never heard of this law office. Who recommended it? GOVERNOR SALALIMA:

GOVERNOR SALALIMA: Yes. SECRETARY CORONA: Were you members of the same fraternity in San Beda? GOVERNOR SALALIMA:

Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda. SECRETARY CORONA: Were you classmates? GOVERNOR SALALIMA: No. SECRETARY CORONA: How many years apart were you? GOVERNOR SALALIMA: Two (2) years. SECRETARY CORONA: So, you knew each other from the law school?

Yes. (TSN, 12 July 1992, pp. 27-29.) It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record. Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney's fee of P38.5 million is unconscionable. By allowing such scandalously exorbitant attorney's fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority. Parenthetically, the retainer contract containing such exorbitant attorney's fees may also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985) prohibiting irregular,

unnecessary, excessive or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Finally, the Committee again applies in this case, as was applied in OP Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305 (1) of the Local Government Code. In view of the foregoing, the Committee holds that respondents committed abuse of authority under Sec. 60(e) of the Local Government Code for the following: 1. Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to handle the case of the Province of Albay before the Supreme Court in G.R. No. 87479; 2. Disbursing public money in violation of COA rules and regulations; 3. Paying the Cortes & Reyna Law Firm public money although it was only Atty. Cornago who was the counsel of record of the Province of Albay in the Supreme Court case; 4. Authorizing an unconscionable and grossly disadvantageous attorney's fees of P38.5 million; and 5. Additionally, as to respondent Governor, entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his authority under Resolution No. 01-90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the Committee recommends that the following penalties of suspensions without pay be meted out: a. Respondent Salalima six (6) months; and Azaa each; and b. All the other respondents four (4) months each. III. OP Case No. 5471 This refers to the administrative complaint filed by the Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor Rodolfo Benibe for "abuse of authority and oppression" under Sec. 60 (c) and (e) of RA No. 7160. The antecedent facts are as follows: On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang Bayan charged herein respondent Governor Salalima and Vice-Governor Azaa for abuse of authority, misconduct in office and oppression. This administrative complaint,

initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-893), arose from the refusal of said respondents to remit Tiwi's share in the P40,724,471.74 tax delinquency payments made by NPC. This case was subsequently substituted by OP Case No. 5470 filed on 25 January 1993 which now included as respondents Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana, Fernandez, Fontanilla, and Rontas. Subsequently, Mayor Corral became the subject of several administrative and criminal complaints filed by certain individuals with the following offices: a. Achilles Berces v. Mayor Naomi Corral (1) Albay Sangguniang Panlalawigan, Adm. Case No. 02-92 (2) Albay Sangguniang Panlalawigan, Adm. Case No. 05-92 (3) Office of the Ombudsman, OMB Adm. Case No. 1930163 (4) Office of the Ombudsman, OMB Case No. 0930682 (5) Office of the Ombudsman, OMB-092-3008 b. Muriel Cortezano v. Mayor Naomi Corral (6) Albay Sangguniang Panlalawigan, Adm. Case No. 10-93 (7) Office of the Ombudsman, OMB-0-92-3000 c. Amelia Catorce v. Mayor Naomi Corral

(8) Albay Sangguniang Panlalawigan, Adm. Case No. 09-93 d. Aida Marfil v. Mayor Naomi Corral (9) Albay Sangguniang Panlalawigan, Adm. Case No. 07-93 (10) Office of the Ombudsman, OMB Case No. 5-93-0110 e. Rodolfo Belbis v. Mayor Naomi Corral (11) Albay Sangguniang Panlalawigan, Adm. Case No. 06-93 (12) Office of the Ombudsman, OMB Case No. 0-93-0098 f. Kin. Juan Victoria, et al. v. Mayor Naomi Corral (13) Office of the Prosecutor, I.S. No. 93-046 (for Libel), Legaspi City g. Governor Romeo Salalima, et al. v. Mayor Naomi Corral (14) Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi City (15) Office of the Prosecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi City or a total of fifteen (15) cases. On 7 January 1993, the respondent-members of the Sangguniang Panlalawigan passed Omnibus Resolution No. 2 recommending

that Mayor Corral be placed under preventive suspension for sixty (60) days pending the resolution of Adm. Case No. 05-92 (Exh. 18). On 11 January 1993, respondent Salalima approved said resolution and, on the same date, officially directed herein respondent Tiwi Vice-Mayor Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh. 18). On 21 January 1993, Department of the Interior and Local Government (DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993 suspension order issued by respondent Salalima. In his letter to Mayor Corral (Exh. C), he stated, thus: Considering that the preventive suspension imposed upon you by Governor Romeo R. Salalima of that province, was issued after the latter's refusal to accept your answer, therefore, the issuance of subject order of preventive suspension is premature, the issues having not been joined. In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by Governor Salalima, is hereby lifted. On 26 January 1993, the Office of the President (OP), acting in OP Case No. 4982, after finding that "the evidence of guilt is strong, and given the gravity of the offense and the great probability that the continuance in office of respondent Governor Romeo R. Salalima would influence the witnesses or pose a threat to the safety and integrity of the records and other evidence," placed respondent Salalima under preventive suspension for sixty (60) days (Exhs. D to D-2). Respondent Salalima subsequently sought the reversal of the OP

Order dated 26 January 1993 but the same was dismissed by the Supreme Court on 26 May 1993 in the case entitled "Salalima v. the Hon. Executive Secretary," G.R. No. 108585 (Exh. E). On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents from hearing the six cases filed against her with the Sangguniang Panlalawigan (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93 and 10-93) asserting her constitutional right to due process of law. This motion was however denied with the respondent-members of the Sangguniang Panlalawigan assuming jurisdiction over the cases. After conducting marathon hearings, respondent-members of the Sangguniang Panlalawigan rendered judgments against Mayor Corral and imposing, among others, the following penalties of suspension: 1. In Adm. Case No. 02-92 suspension for two (2) months (see Decision dated 1 July 1993, [Exhs. F to F-2]); 2. In Adm Case No. 05-92 suspension for three (3) months (see Resolution dated 5 July 1993, [Exhs. G to 6-2]); 3. In Adm Case No. 06-93 and 07-93 suspension for one (1) month (see Resolution dated 8 July 1993, [Exhs. H to H-3]); and 4. In Adm Case No. 10-93 suspension for the period of unexpired term (see Resolution dated 9 July 1993, [Exhs. I to I-21). On 22 July 1993, respondent Salalima issued a directive addressed to the Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial Assessor, Provincial Accountant, Provincial

Budget Officer, Provincial DILG Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining them to assist in the implementation of the decisions suspending Mayor Corral "by decreeing directives to your subordinate officials in Tiwi, Albay to strictly adhere thereto." Subsequently, Mayor Corral interposed appeals from the decisions of respondent-members of the Sangguniang Panlalawigan suspending her from office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer that the implementation of said decisions be stayed. On 28 July 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to 52). Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 06-93, 07-93 and 1093 (Exhs. K to K-1). Also, with respect to Adm. Case Nos. 6-93 and 7-93, the Civil Service Commission (CSC) issued Resolution Nos. 93-005 (dated 5 January 1993) and 92-817 (dated 4 March 1993), which provided the bases and justifications for the acts of Mayor Corral complained of in these two (2) cases. The Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2). In the multiple charges for libel and perjury against Mayor Corral, arising from her complaint in OP Case No. 5470, filed with the Regional Trial Court of Legaspi City, the Supreme Court ordered the lower court to cease and desist from proceeding with the case in a resolution dated 16 September 1993 (Exhs. Q to Q-2).

In determining whether respondents are guilty of the charges levelled against them, the following issue has to be resolved, i.e., whether the conduct of the proceedings in the administrative cases filed and the series of suspension orders imposed by the respondent-members of the Sangguniang Panlalawigan on Mayor Corral constitute oppression and abuse of authority? Oppression" has been defined as an "act of cruelty, severity, unlawful exaction, domination or excessive use of authority." (Ochate v. Ty Deling, L-13298, March 30, 1959, 105 Phil. 384, 390.). "Abuse" means "to make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one's authority" (Black's Law Dictionary <5th Ed.>, 11). It includes "misuse" (City of Baltimore v. Cornellsville & S.P. Ry, Co. 6 Phils. 190, 191, 3 Pitt 20, 23). Moreover, Section 63(d) of RA No. 7160 expressly states that, "[a]ny abuse of the exercise of the powers of preventive suspension shall be penalized as abuse of authority." Now, does the above narration of facts show commission by respondents of the administrative offenses complained of? A review of the proceedings reveal that the same were marked by haste and arbitrariness. This was evident from the start when Mayor Corral was preventively suspended (in Adm. Case No. 05-92) even before she could file her answer. In the other cases, respondentmembers of Sangguniang Panlalawigan ruled that Mayor Corral had waived her right to adduce evidence in her defense.

Consequently, respondents did not also fully evaluate the evidences presented to support the charges made. As such, all the decisions of respondents suspending Mayor Corral were ordered lifted suspended by the DILG and OP. Thus, even the cases filed with the Office of the Ombudsman, which were based on the same incidents complained of in the said administrative cases, were subsequently dismissed. Respondents should have inhibited themselves from assuming jurisdiction over said cases (Adm Case Nos. 02-92, O6-92, 06-93, 07-93, 09-93, and 10-93) as timely moved by Mayor Corral considering that they were the respondents in various administrative complaints she earlier filed with the OP and with the DILG starting with OP Case No. 4892. However, despite the violation of due process resulting from their collective acts, respondents, in their determination and eagerness to suspend and harass Mayor Corral, proceeded to hear and decide said cases. The OP has no jurisdiction over administrative complaints filed against elective municipal officials. Under Sec. 61(b) of RA No. 7160, "[a] complaint against any elective official of a municipality shall be filed before the Sangguniang Panlalawigan whose decision may be appealed to the Office of the President." WHEREFORE, the charges against Vice Mayor Benibe are dismissed. However, all the other respondents herein are found guilty of oppression and abuse of authority under Section 60 (c) and (e) of RA No. 7160. Accordingly, it is recommended that each of them be meted the penalty of four (4) months suspension without pay. IV. OP Case No. 5450.

This refers to the administrative charges filed by Tabaco Mayor Antonio Demetriou against Governor Romeo Salalima for violation of Section 60, pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of Republic Act No. 3019, and the provisions of PD No. 1594, as amended. This case was filed with the Office of the President (OP) on 18 October 1993 and docketed as OP Case No. 5450. The facts as found by this Committee are as follows: On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh. A, par. 1). On 26 September 1990, the OP advised Mayor Demetriou and respondent Salalima that the P12.0 Million in Budgetary Assistance to Local (Government Units (BALGU) funds earlier remitted by the national government to the Province, should be used for the rehabilitation of the Tabaco Public Market, and that the project should be implemented by the Provincial Governor in consultation with the Mayor of Tabaco (Exh.. 37). On 8 May 1991, a public bidding was conducted by the Albay Provincial Government for the repair and rehabilitation of the Tabaco Public Market (Exh. A, par. 1) On 29 May 1991, the Province represented by respondent Salalima and RYU Construction entered into a contract for P6,783,737.59 for said repair and rehabilitation (Exh. H). Among others, the contract stipulated that the contracted work should be completed in 150 days.

The contractor started the project on 1 July 1991 and completed the same on 2 June 1992 (Exh. 41). On 6 March 1992, the Province represented by respondent Salalima entered into another contract (Exh. I) for P4,304,474.00 with RYU Construction for additional repair and rehabilitation works for the Tabaco Public Market. The terms and conditions of this contract are the same as those stipulated in the 29 May 1991 contract except for the construction period which is only for 90 days. Construction of the second project commenced on 27 March 1992 and was completed on 2 June 1992 (Exh. 42). In his complaint, Mayor Demetriou alleged that despite the delay in the completion of work under the first contract, liquidated damages were not imposed on, nor collected from, RYU Construction by the Province. Moreover, he claims that the second contract with RYU Construction was entered into in violation of PD No. 1594 as RYU incurred delay with respect to the first contract. We find merit in the complaint: Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item IB of the Implementing Rules and Regulations (IRR) of PD No. 1594, as amended, read: CI 3 LIQUIDATED DAMAGES. 1. Where the contractor refuses or fails to satisfactorily complete the work within the specified contract time, plus any time extension duly granted and is hereby in default under the contract, the contractor shall pay the Government for Liquidated damages, and

not by way of penalty, an amount to be determined in accordance with the following formula for each calendar day of delay, until the work is completed and accepted or taken over by the Government: xxx xxx xxx 2. To be entitled to such Liquidated, damages, the Government does not have to prove that it has incurred actual damages. Such amount shall be deducted from any money due or which may become due the contractor under the contract and/or collect such Liquidated damages from the retention money or other securities posted the contractor whichever is convenient to the Government. CI Extension of Contract time. 1. Should the amount of additional work of any kind or other special circumstances of any kind whatsoever occur such as to fairly entitle the contractor to an extension of contract time, the Government shall determine the amount of such extension; provided that the Government is not bound to take into account any claim for an extension of time unless the contractor has prior to the expiration of the contract time and within thirty (30) calendar days after such work has been commenced or after the circumstances leading to such claim have arisen, delivered to the Government notices in order that it could have investigated them at that time. Failure to provide such notice shall constitute a waiver by the contractor of any claim. Upon receipt of full and detailed particulars, the Government shall examine the facts and extend of the delay and shall extend the contract title for completing the contract work when, in the Government's opinion, the finding of facts justify an extension.

xxx xxx xxx IB 10.4.2 By Negotiated Contract 1. Negotiated contract may be entered into only where any of the exists and the implementing following conditions office/agency/corporation is not capable of undertaking the project by administration: xxx xxx xxx

This is confirmed by the COA through CAO Report No. 93-11 (Exh. N), thus . . . The project was completed only on June 2, 1992 or a delay of 132 working days, as shown in the following tabulation: Billing As of Days Lapsed % Accomplished First Dec. 2, 1991 130 26.48 Second Jan. 8, 1992 187 53.19

c Where the subject project is adjacent or contiguous to an ongoing project and it could be economical prosecuted by the same contractor, in which case, direct negotiation may be undertaken with the said contractor at the same unit prices adjusted to price levels prevailing at the time of negotiation using parametric formulae herein prescribed without the 5% deduction and contract conditions, less mobilization cost, provided that he has no negative slippage and has demonstrated a satisfactory performance. (Emphasis supplied). xxx xxx xxx A reading of items CI 8 and CI 11 above shows that the collection of liquidated damages is mandatory in cases of delay unless there are valid orders of extension of contract work given by the Government. Under the 29 May 1991 contract, the repair works should have been completed on 26 December 1991 since the project was started on 1 July. But then the project was finished only on 2 June 1992.

Third Feb. 10, 1992 100 75.23 Final June 2, 1992 202 100.00. In view of the delays in project completion the Team requested from the Provincial Engineer any copy of the order suspending and resuming the work (suspension and resume order) since the same was not, attached to the claims of the contractor or paid vouchers. Unfortunately the Provincial Engineer could not provide said document at the Engineering Office had not issued any. In effect. there was no basis for the extension of contract time and the contractor should have been considered as behind schedule in the performance of the contract. Despite its deficiency, no liquidated damages was ever imposed against the contractor. (pp. 25-26) [emphasis supplied] Respondent Salalima failed to submit an evidence concerning any order issued by the Provincial Government extending RYU Construction's contract.

The law requires that requests for contract extension as well as the orders granting the same must be made and given prior to the expiration of the contract. The rationale for this requirement is obviously to prevent a contractor from justifying any "delay" after the contract expires. Before signing the 6 March 1992 contract, which was entered into on a negotiated basis and not through bidding, respondent Salalima should have inquired whether or not RYU Construction incurred negative slippage. Had he done so, the matter of imposing and collecting liquidated damages would have been given appropriate attention. This is aggravated by the fact that respondent knew that RYU Construction was the contractor for the original rehabilitation and repair work for the Tabaco Public market being the signatory to the first contract. Clearly, therefore, there was a failure on the part of the Province to impose and collect liquidated damages from the erring contractor, RYU Construction. Going to the second charge, we find that respondent Salalima unmistakably violated the provision of PD No. 1594, as amended. Fundamental is the rule that government contracts especially infrastructure contracts are awarded only through bidding. As explicitly ordained by Sec. 4 of PD No. 1594, construction projects shall generally be undertaken by contract after "competitive bidding". By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. At the same time, bidding seeks to prevent or curtail favoritism, fraud and corruption in the award of the contract which otherwise might

prevail were the government official concerned is vested with the full or absolute authority to select the prospective contractor (Fernandez, Treatise on Government Contracts Under Philippine Law, 1991 Ed. citing Caltex Phil., Inc. v. Delgado Bros. 96 Phil. 368; San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v. Hernandez, 66 Phil. 68). This is precisely the reason why negotiated contracts can be resorted to only in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR' of PD No. 1594, supra. However, said proviso requires that the contractor had not incurred negative slippage and has demonstrated a satisfactory performance. And since RYU Construction incurred negative slippage with respect to the repair works under the 29 May 1991 contract as found by COA, it was anomalous for the Province through respondent Salalima to enter into a negotiated contract with said contractor for additional repair and rehabilitation work; for the Tabaco public market. Failing to comply with the requirements of law, the 6 March 1992 contract is clearly irregular, if not illegal. Finally, said contract may also be violative of the following: (a) COA Circular No. 85-55-A (dated 8 September 1985) prohibiting irregular expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Premises considered, this Committee finds the respondent guilty of abuse of authority and gross negligence. Accordingly, it is recommended that the penalty of suspension without pay be meted out on respondents Salalima for five (5) months. (pp. 2-35). The President then concluded and disposed as follows:

After a careful review of the cases, I agree with and adopt the findings and recommendations of the Ad-Hoc Committee, supported as they are by the evidence on record. WHEREFORE, the following penalties are meted out on each of the respondents, to wit: In OP Case No. 5470 a. Governor Romeo Salalima suspension without pay for five (5) months; b. Vice-Governor Danilo Azana, Albay Sangguniang Panlalawigan members Juan Victoria, Lorenzo Reyeg, Arturo Osia, CLenio Cabredo, Vicente Go, Sr., Jesus Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas suspension without pay for four (4) months. In OP Case No. 5469 a. Governor Romeo Salalima and Vice-Governor Danilo Azaa suspension without pay for six (6) months; and b. Albay Sangguniang members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao suspension without pay for four (4) months; In OP Case No. 5471 a. Governor Romeo Salalima and Albay Sangguniang members

Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao suspension without pay for four (4) months;. In OP Case No. 5450 a. Governor Romeo Salalima suspension without pay for five (5) months. The suspension imposed on respondents shall be served successively but shall not exceed their respective unexpired terms, in accordance with the limitation imposed under Section 66 (b) of the Local Government Code. It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of its substantive aspect is challenged in this petition. The petitioners mentioned it only in their claim of prematurity of Administrative Order No. 153 in view of their appeal from Special Audit Office (SAO) Report No. 93-11 to the COA en banc. O. P. Case No. 5471 is the administrative complaint, filed by Tiwi Mayor Corral against the petitioners for abuse of authority and oppression in connection with their conduct in the several administrative cases filed by certain individuals against Mayor Corral. It has no logical nexus to the appeal. The decision then in O.P. Case No. 5471 stands unchallenged in this petition. As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may be reformulated in this wise: I. Did the Office of the President act with grave abuse of discretion amounting to lack or excess of jurisdiction in suspending the

petitioners for periods ranging from twelve to twenty months? II. Did the Office of the President commit grave abuse of discretion in deciding O.P. cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners' appeal to the COA en banc from Special Audit Office (SAO) Report No. 93-11 and the Certificate of Settlement and Balances (CSB)? III. Did the Office of the President commit grave abuse of discretion in holding the petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its rightful shore in the P40,724,471.74 which the Province of Albay had received from the NPC under the Memorandum of Agreement? IV. Did the Office of the President commit grave abuse of discretion in suspending in O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May 1992, for an alleged administrative offense committed during his first term; and in suspending in O.P. Case No. 5469 the other petitioners, some of whom were elected and others reelected on 11 May 1992, for an alleged administrative offense committed in 1989? V. Did the Office of the President commit grave abuse of discretion in holding the petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section 60 (e) of the Local Government Code of 1991 although they were charged under Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local Government? Code of 1991, thereby depriving them of due process of law? We shall take up these issues in the order they are presented.

I Anent the first issue, the petitioners contend that the challenged administrative order deprived them of their respective offices without procedural and substantive due process. Their suspensions ranging from twelve months to twenty months or for the entire duration of their unexpired term, which was then only seven months, constituted permanent disenfranchisement or removal from office in clear violation of Section 60 of R.A. No. 7160 which mandates that an elective local official may be removed from office by order of the court. The Comment of the Solicitor General is silent on this issue. However, respondents Mayor Corral and newly appointed provincial officials maintain that the suspension imposed upon the petitioners in each of the four cases was within the limits provided for in Section 66(b) of R.A. No. 7160 and that the Aggregate thereof ranging from twelve months to twenty months, but not to exceed the unexpired portion of the petitioners term of office, did not change its nature as to amount to removal. Section 66(b, of R.A. No. 7160 expressly provides: Sec. 66. Form and Notice of Decision. . . . (b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meet the qualifications for the office. This provision sets the limits to the penalty of suspension , viz., it

should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. An administrative offense means every act or conduct or omission which amounts to, or constitutes, every of the grounds or disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code, which reads: Sec. 60. Grounds for Disciplinary Action. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at Least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; g) Acquisition for, or acquisition of, foreign citizenship or residence or the status ,e an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases are correct, it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months and the unexpired portion of the petitioners' term of office. The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners. Their term of office expired at noon of 30 June 1995. 2 And this Court is not prepared to rule that the suspension to the petitioners' removal office. 3 II Petitioners contend that the decisions in O.P. Cases Nos. 5450, 5470, and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with, and pending resolution by, the Commission on Audit En Banc, they are not yet final, conclusive, and executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA Chairman had already reversed the recommendation in the SAO Report No. 93-11 that the Provincial Government of Albay should

share with the Municipality of Tiwi the P40,724,471.74 representing payments of the NPC as of December 1992. They then submit that Administrative Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to the COA en banc from SAO Report No. 93-11 and the CSB. This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the Committee explained as follows: It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries. Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, as the very least, as corroborative evidence. Respondents' contention that COA's factual finding, as contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable. For no administrative and criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held it abeyance. This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court. Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation, of law. Surely, investigative bodies,

such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts. Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report No. 93-11 to enable this Committee to evaluate the merits of the instant complaint. The alleged appeal from the CSB is unclear From the records, and in light of the foregoing statement of the Ad Hoc Committee it is obvious that such appeal was not raised. We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to the investigation and resolution of their administrative cases. It may be further stressed that a special audit has a different purpose in line with the constitutional power, authority, and duty of the COA under Section 2, Subdivision D, Article IX of the Constitution "to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held intrust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters" and its "exclusive authority . . . to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting aid auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." 4

III As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province of Albay from the NPC represents part of the price paid for properties owned by the province in a corporate capacity and repurchased by the former owner. It constitutes payment of a debt and net of a tax, which debt "arose from. and was a consequence of the Memorandum of agreement dated May 29, 1992." They further contend that the Memorandum of Agreement (MOA) partakes of a deed of sale. And nowhere in the Real Property Tax Code (P.D. No. 464) 5 is there any provision requiring provinces to share with the municipalities the proceeds of a private sale. What are required to be shared are only the collections of real property taxes and Special Education Fund (SBF); proceeds of delinquent taxes and penalties, or of the sale of delinquent real property, or of the redemption thereof; and income realized from the use, lease, or disposition of real property seized by the province. It must be recalled that in August 1992, Governor Salalima and NPC President; Pablo Malixi, were already agreed that the basic tax due from the NPC was P207,375,774.72. 6 But later, Malixi informed the former that upon recomputation of the real property tax payable to the Province of Albay at the minimum of one-fourth of one percent pursuant to Section 39(1) of the Real Property Tax Code, the NPC came up with an adjusted figure of P129,609,859.20. 7 Governor Salalima then explained that one percent was applied in the computation for the reconciled figure of P207,375,774.72 because the one-half percent imposed by the respective ordinances of the municipalities where the delinquent properties are located was added to the one-half percent imposed by the tax ordinance of the Province. His reply reads as follows:

September 9, 1992 Hon Pablo V. Malixi President, Power Corporation Diliman, Quezon City. Dear President Malixi: As suggested in your letter of August 31, 1992, we are very pleased to furnish you herewith the certified true copies of the local tax ordinances which served as our basis in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit: (a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting Provincial Tax Ordinance No. 4, whose Section I, provides: "There shall be levied, assessed and collected as annual ad valorem tax on real properties including improvements thereon equivalent to one half of one percent, of the assessed value of real property." (b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides: "That the tax rate of real property shall be one-half of one percent of the assessed value of real property." (c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides: "Rates of Levy The tax herein levied is hereby fixed at one-half National

of one percent (1/2 of 1%) of the assessed value of the real property. These tax ordinances were in pursuance to Sec. 39 (1) (3) of PD 464, the applicable law during the period 1984 to 1987. By adding the one half percent imposed in the tax Ordinance of Tiwi to the one half percent also imposed in the Provincial Tax Ordinance, we have a total of one percent which we used as the rate of levy in computing the basic tax due on the real properties in Tiwi. On the real properties in Daraga, we also added the one-half percent imposed by the Daraga Tax Ordinance to the one-half percent of the Provincial Tax Ordinance. The additional tax of one percent for the Special Educational Fund (SEF) was imposed pursuant to Section 41 of PD 464, which provides as follows: "There is hereby imposed annual tax of one percent on real property to accrue to the Special Educational Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; . . . " We hope that the foregoing clarification will settle whatever doubt there is on why we applied 1% for basic tax and another 1% for SEF in arriving at P207,375,774.72. 8 (emphasis supplied). The petitioners even emphasized in the instant petition that "Governor Salalima specifically included the amounts due to the Municipalities of Tiwi and Daraga in asking Napocor to settle its obligations." In other words, the original claim of P214,845,184.76

or the reconciled figure of P207,375,774.72 representing real property taxes from 11 June 1984 to 10 March 1987 already covered the real property taxes payable to the municipalities concerned. Hence, when the Province sold at public auction the delinquent properties consisting of buildings, machines, and similar improvements, it was acting not only in its own behalf but also in behalf of the municipalities concerned. And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound collect taxes throughout the province, including the national, provincial, and municipal taxes and other revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the provincial or city treasurer is the one authorized to advertise the sale at public auction of the entire delinquent real property, except real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and penalties due and costs of sale. He is also authorized to buy the delinquent real property in the name of the province if there is no bidder or if the highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale. 9 Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the delinquent properties in the name of the province for the amount of taxes, penalties due thereon, and the costs of sale, which included the amounts of taxes due the municipalities concerned. It is therefore wrong for the petitioners to say that the subject NPC properties are exclusively owned by the Province. The Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent of their respective shares in the real property taxes and the penalties thereon.

It must further be noted that it is the provincial treasurer who has charge of the delinquent real property acquired by the province. 10 He is also the one whom the delinquent taxpayer or any person holding a lien or claim to the property deal with in case the latter wishes to redeem the property. 11 He is also the one authorized to effect the resale at public auction of the delinquent property. 12 Thus, the municipalities concerned had to depend on him for the effective collection of real property taxes payable to them. Accordingly, when the Province entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the municipalities concerned. And whatever benefits that might spring from that agreement should also be shared with the latter. The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale. Hereinbelow is the pertinent portion of that agreement: WHEREAS, the Supreme Court ruled in the NATIONAL POWER CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of Tiwi and Daraga, Albay for the period June 11, 1984 to March 10, 1987; WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the PROVINCE OF ALBAY; WHEREAS, there is a need to further validate/reconcile the computation of the realty tax in the total amount of P214,845,184.76; NOW, THEREFORE, in view of the foregoing premises and for and in consideration of the mutual covenant and stipulations hereinafter

provided, the parties hereto have agreed as follows: 1. NAPOCOR will make an initial payment of P17,783,000.00 receipt of which is hereby/acknowledged. 2. The balance of the validated/reconciled amount of the real estate taxes will be paid in 24 equal monthly installments, payable within the first five (5) working days of the month. The first monthly installment will commence in September 1992. 3. Should NAPOCOR default in any monthly installment, the balance will immediately become due and demandable. 4. NAPOCOR will pay such other taxes and charges, such as the franchise tax as provided for in the Local Government Code of 1991. 5. In consideration of settlement of NAPOCOR's tax Liability, the PROVINCE OF ALBAY hereby waives its claim of ownership over NAPOCOR' properties subject in G.R. No. 87479 upon full payment of the balance due to the PROVINCE OF ALBAY. 13 (emphasis supplied). The tenor of the abovequoted agreement shows that the intention of the parties was for the redemption of the subject properties in that the Province would waive ownership over the properties "in consideration of settlement of Napocor's tax liability. Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public auction may be redeemed by paying the total amount of taxes and penalties due up to the date of redemption, costs of sale, and the interest at 20% of the purchase

price. The petitioners are estopped from claiming that the amounts received by the Province from the NPC constitute payments of a debt under the MOA or of contract price in a private sale. They constitute redemption price or payments of NPC's tax liabilities. This is evident from the MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer, which reads: Date: July 29, 1992 Received from National Power Corp. Manila. In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos Philippine Currency P17,763,030.00 In payment of the following: For Partial Payment = P17,763,000.00 of Realty Tax Delinquency of Case No. 87479, NPC vs. Province of Albay. Total P17,763,000.00. (Sgd.) Abundio M. Nuez Provincial Treasurer. 14 Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which provides: "That the installments paid by said corporation for the months of September to December 1992, representing partial payments of the principal tax due are declared forfeited in favor of the Provincial Government of Albay."

Moreover, in Resolution No. 197-92, the petitioners referred as "tax benefits" the shares of certain municipalities and barangays from the amount paid by the NPC under the MOA. The resolution reads in part as follows: WHEREAS, by virtue of the Memorandum agreement, signed by the petitioner, Province of Albay and respondent-oppositor, National Power Corporation (NPC), the latter have agreed and paid an initial payment to the Province of Albay; WHEREAS, the sharing based on the Local Government Code of 1991, the municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,416.82 respectively and the barangays Bay in Lingao to P319.00 and Tagoytoy in Malinao to P981.00, WHEREAS, these tax benefits due them are not enough to pursue a worthwhile project in said municipalities and barangays considering the present economic situation. 15 (emphasis supplied). As pointed out by the respondents, if the MOA was merely for the repurchase by NPC of its properties from Albay, what could have been executed was a simple deed of absolute sale in favor of NPC at an agreed price not necessarily P214 million which was the total amount of the realty tax in arrears. Additionally, there would have been no need for the parties "to further validate/reconcile the tax computation of the realty tax in the total amount of P214,845,184,76." Clearly, the P40,724,471.74 paid by the NPC to the Province pursuant to the MOA was part of the redemption price or of the realty taxes in arrears.

It is conceded that under Section 78 of the Real Property Tax Code, redemption of delinquency property must be made within one year from the date of registration of sale of the property. The auction sale of the NPC properties was held on 30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the NPC offered to repurchase its former properties by paying its tax liabilities. When the Province accepted the offer, it virtually waived the one-year redemption period. And having thus allowed the MPC to redeem the subject properties and having received part of the redemption price, the Province should have shared with the municipalities concerned those amounts paid by the NPC in the same manner and proportion as if the taxes had been paid in, regular course conformably with Section 87(c) of the Real Property Tax Code, which provides: (c) the proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof shall accrue to the province, city or municipality in the same proportion as if the tax or taxes had been paid in regular course. As early as 3 August 1992, respondent Mayor Corral had already made a written demand for payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor Salalima refused saying that the initial check of P17,763,000.00 was merely an "earnest money." Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No. 197-92 giving some local government units, where smaller portions of the delinquent properties are situated, shares from the payments made by the NPC under the MOA..

The petitioners cannot claim to have acted in good faith in refusing to give the municipalities of Tiwi and Daraga their share. As pointed out by the Office of the Solicitor General, the petitioners were aware of the local tax ordinances passed by the respective Sangguniang Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in their respective localities. Petitioner Salalima had even quoted the said ordinances in his letter to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the petitioners averred in the instant petition that "Governor Salalima specifically included the amounts due to the municipalities of Tiwi and Daraga in asking NPC to settle its obligations." When doubt arose as to whether the municipalities concerned are entitled to share in the amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992, the province had already disbursed or spent a large part of the NPC payments. As found by COA, "of the P40,724,471.74 actually paid by the NPC and lodged in the province's general fund, P35,803,118.300 was disbursed or spent by the Province." If petitioners were really in good faith, they should have held the shares of Tiwi and Daraga in trust 16 pursuant to Section 309 (b) of the Local Government Code of 1991, which provides: Trust funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator . . . A trust fund shall only be used for the specific purpose for which it came into the possession of the local government unit.

As pointed out by the Ad Hoc Committee in its report, which was adopted by the Office of the President: It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province's general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD No. 464, as amended). Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations. However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as "surplus adjustment" (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law. We cannot therefore fault the public respondents with grave abuse of discretion in holding the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi and Daraga the amount of P40,724,471.74 paid by the NPC.

IV We agree with the petitioners that Governor Salalima could no longer be held administratively liable in C.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market. Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Corte's and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term, as held in Pascual vs. Provincial Board of Nueva Ecija 17 and Aguinaldo vs. Santos. 18 In Pascual, this Court ruled: We now come to one main issue of the controversy the legality of disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office. In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct. The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term, to which we fully subscribe. Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings

for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the office was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d 237; Board of Com'rs of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.V. 2d. 217). The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. This Court reiterated this rule in Aguinaldo and explicitly stated therein: Clearly then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him

therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioners for acts he may have committed during the failed coup. However, the Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid. It is of the view that an official's reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us. The rule makes no distinction. As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year after he was reelected. The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an official's reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound public policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service. This doctrine of forgiveness or condonation cannot, however, apply to criminal acts which the reelected official may have committed during his previous term.

We thus rule that any administrative liability which petitioner Salalima might have incurred in the execution of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6 March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract in question and who were reelected in the 1992 elections. This is, however, without prejudice to the institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became members of the Sangguniang Panlalawigan only after their election in 1992, they could not beheld administratively liable in O.P. case No. 5469, for they had nothing to do with the said resolution which was adopted in April 1989 yet. Having thus held that the petitioners could no longer be administratively liable in O.P. Case No. 5469, we find it unnecessary to delve into, and pass upon, the fifth issue. WHEREFORE, the instant special action for certiorari is hereby partly GRANTED. That part of the challenged Administrative Order No. 153 imposing the penalty of suspension on petitioner Governor Romeo Salalima in O.P. Cases Nos. 5450 and 5469 and on petitioners Vice Governor Danilo Azaa and Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No. 5469 are hereby ANNULLED and SET ASIDE, without prejudice to

the filing of appropriate civil or criminal actions against them if warranted by the attendant circumstances. No pronouncement as to costs. SO ORDERED. Narvasa, C.J., Padilla, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur. Regalado, J., took no part. G.R. No. 125955 June 19, 1997 WILMER GREGO, petitioner, vs. COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.

ROMERO, J.: The instant special civil action for certiorari and prohibition impugns the resolution of the Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing petitioner's motion for reconsideration of an earlier resolution rendered by the COMELEC's First Division on October 6, 1995, which also dismissed the petition for disqualification 1 filed by petitioner Wilmer Grego against private respondent Humberto Basco. The essential and undisputed factual antecedents of the case are as follows:

On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas. The Court held: WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENTOWNED OR CONTROLLED CORPORATIONS. xxx xxx xxx 2 Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the January 18, 1988, local elections. He won and, accordingly, assumed office. After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his victory this time did not remain unchallenged. In the midst of his successful re-election, he found himself besieged by lawsuits of his opponents in the polls who wanted to dislodge him from his position. One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon Ronquillo, another candidate for councilor in the same district, who alleged Basco's ineligibility to be elected

councilor on the basis of the Tordesillas ruling. At about the same time, two more cases were also commenced by Honorio Lopez II in the Office of the Ombudsman and in the Department of Interior and Local Government. 4 All these challenges were, however, dismissed, thus, paving the way for Basco's continued stay in office. Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by emerging sixth in a battle for six councilor seats. As in the past, however, his right to office was again contested. On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for Basco's disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected Councilor of Manila's Second District. On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a copy of the petition. The other members of the BOC learned about this petition only two days later. The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit simultaneously their respective memoranda. Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among several candidates who vied for the seats. 5 Basco immediately took his oath of office before the Honorable Ma. Ruby

Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila. In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC. He reiterated Basco's disqualification and prayed anew that candidate Romualdo S. Maranan be declared the winner. As expected, Basco countered said motion by filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining Order). On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he made earlier, summarizing his contentions and praying as follows: Respondent thus now submits that the petitioner is not entitled to relief for the following reasons: 1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of the Local Government Code because the Tordesillas decision is barred by laches, prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare decisis; 2. Section 4[0] par. B of the Local Government Code may not be validly applied to persons who were dismissed prior to its effectivity. To do so would make it ex post facto, bill of attainder, and retroactive legislation which impairs vested rights. It is also a class legislation and unconstitutional on the account.

3. Respondent had already been proclaimed. And the petition being a preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be dismissed by virtue of said pronouncement. 4. Respondent's three-time election as candidate for councilor constitutes implied pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd 237, etc.). 5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was premature as an election protest and it was not brought by a proper party in interest as such protest.: PRAYER WHEREFORE it is respectfully prayed that the instant case be dismissed on instant motion to dismiss the prayer for restraining order denied (sic). If this Honorable Office is not minded to dismiss, it is respectfully prayed that instant motion be considered as respondent's answer. All other reliefs and remedies just and proper in the premises are likewise hereby prayed for. After the parties' respective memoranda had been filed, the COMELEC's First Division resolved to dismiss the petition for disqualification on October 6, 1995, ruling that "the administrative penalty imposed by the Supreme Court on respondent Basco on October 31, 1981 was wiped away and condoned by the electorate which elected him" and that on account of Basco's proclamation on May 17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition would no longer be viable." 6

Petitioner's motion for reconsideration of said resolution was later denied by the COMELEC en banc in its assailed resolution promulgated on July 31, 1996. 7 Hence, this petition. Petitioner argues that Basco should be disqualified from running far any elective position since he had been "removed from office as a result of an administrative case" pursuant to Section 40 (b) of Republic Act No. 7160, otherwise known as the Local Government Code (the Code), which took effect on January 1, 1992. 8 Petitioner wants the Court to likewise resolve the following issues, namely: 1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to those removed from office before it took effect on January 1, 1992; 2. Whether or not private respondent's election in 1988, 1992 and in 1995 as City Councilor of Manila wiped away and condoned the administrative penalty against him; 3. Whether or not private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, is void ab initio; and 4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates for City Councilor of Manila, may be declared a winner pursuant to Section 6 of Republic Act No. 6646. While we do not necessarily agree with the conclusions and reasons of the COMELEC in the assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing the

petition for disqualification. The instant petition must, therefore, fail. We shall discuss the issues raised by petitioner in seriatim. I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on January 1, 1992? Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged disqualification to run as City Councilor states: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: xxx xxx xxx (b) Those removed from office as a result of an administrative case; xxx xxx xxx In this regard, petitioner submits that although the Code took effect only on January 1, 1992, Section 40 (b) must nonetheless be given retroactive effect and applied to Basco's dismissal from office which took place in 1981. It is stressed that the provision of the law as worded does not mention or even qualify the date of removal from office of the candidate in order for disqualification thereunder to attach. Hence, petitioner impresses upon the Court that as long as a candidate was once removed from office due to an administrative case, regardless of whether it took place during or prior to the effectivity of the Code, the disqualification applies. 9 To him, this

interpretation is made more evident by the manner in which the provisions of Section 40 are couched. Since the past tense is used in enumerating the grounds for disqualification, petitioner strongly contends that the provision must have also referred to removal from office occurring prior to the effectivity of the Code. 10 We do not, however, subscribe to petitioner's view. Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Thus, in Aguinaldo v. COMELEC, 11 reiterated in the more recent cases of Reyes v. COMELEC 12 and Salalima v. Guingona, Jr., 13 we ruled, thus: The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which provides: Sec. 40. The following persons are disqualified from running for any elective local positions: xxx xxx xxx (b) Those removed from office as a result of an administrative case. Republic Act 7160 took effect only on January 1, 1992. The rule is: xxx xxx xxx . . . Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the obligation of

contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment. . . . (Jones v. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. v. Whyel 28 (2d) 30; Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo v. Court of Appeals, 128 SCRA 519 [1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; AlAmanah Islamic Investment Bank of the Philippines v. Civil Service Commission, et al., G.R. No. 100599, April 8, 1992). There is no provision in the statute which would clearly indicate that the same operates retroactively. It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case. (Emphasis supplied). That the provision of the Code in question does not qualify the date of a candidate's removal from office and that it is couched in the past tense should not deter us from applying the law prospectively. The basic tenet in legal hermeneutics that laws operate only prospectively and not retroactively provides the qualification sought by petitioner. A statute, despite the generality in its language, must not be so construed as to overreach acts, events or matters which transpired before its passage. Lex prospicit, non respicit. The law looks forward, not backward. 14 II. Did private respondent's election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away and condone the administrative penalty against him, thus restoring his eligibility for public office?

Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo v. COMELEC 15 to the effect that a candidate's disqualification cannot be erased by the electorate alone through the instrumentality of the ballot. Thus: . . . (T)he qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. . . . At first glance, there seems to be a prima facie semblance of merit to petitioner's argument. However, the issue of whether or not Basco's triple election to office cured his alleged ineligibility is actually beside the point because the argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous elections. This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the Local Government Code which, as we said earlier, applies only to those removed from office on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the matter at length. Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations, we are of the view that petitioner's contention is baseless. Neither does petitioner's argument that the term "any position" is broad enough to cover without distinction both appointive and local positions merit any consideration.

Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for any elective position. As can be gleaned from the decretal portion of the said decision, the Court couched the prohibition in this wise: . . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS. In this regard, particular attention is directed to the use of the term "reinstatement." Under the former Civil Service Decree, 16 the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term "reinstatement" had a technical meaning, referring only to an appointive position. Thus: Art. VIII. PERSONNEL POLICIES AND STANDARDS. Sec. 24. Personnel Actions. xxx xxx xxx (d) Reinstatement. Any person who has been permanently APPOINTED to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. xxx xxx xxx (Emphasis supplied).

The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10, 1975, 17 provides a clearer definition. It reads: RULE VI. OTHER PERSONNEL ACTIONS Sec. 7. Reinstatement is the REAPPOINTMENT of a person who was previously separated from the service through no delinquency or misconduct on his part from a position in the career service to which he was permanently appointed, to a position for which he is qualified. (Emphasis supplied). In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to an appointive position. III. Is private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, void ab initio? To support its position, petitioner argues that Basco violated the provisions of Section 20, paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our ruling in the cases of Duremdes v. COMELEC, 18 Benito v. COMELEC 19 and Aguam v. COMELEC. 20 We are not convinced. The provisions and cases cited are all misplaced and quoted out of context. For the sake of clarity, let us tackle each one by one. Section 20, paragraph (i) of Rep. Act 7166 reads:

Sec. 20. Procedure in Disposition of Contested Election Returns. xxx xxx xxx (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. xxx xxx xxx The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate. Next, petitioner cites Section 6 of Rep. Act 6646 which states: Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis supplied).

This provision, however, does not support petitioner's contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word "may" indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion. 21 What is merely made mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and capriciously. 22 The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, 23 has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. 24 The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion. It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states that: Sec. 5. Effect of petition if unresolved before completion of canvass. . . . (H)is proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election. However, being merely an implementing rule, the same must not

override, but instead remain consistent with and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law. 26 Thus, in Miners Association of the Philippines, Inc. v. Factoran, Jr., 27 the Court ruled that: We reiterate the principle that the power of administrative officials to promulgate rules and regulations in the implementation of a statute is necessarily limited only to carrying into effect what is provided in the legislative enactment. The principle was enunciated as early as 1908 in the case of United States v. Barrias. The scope of the exercise of such rule-making power was clearly expressed in the case of United States v. Tupasi Molina, decided in 1914, thus: "Of course, the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provision of the law, they are valid. Recently, the case of People v. Maceren gave a brief delineation of the scope of said power of administrative officials: Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA

660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350). The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349). xxx xxx xxx . . . The rule or regulations should be within the scope of the statutory authority granted by the legislature to the administrative agency (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558). In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulations cannot go beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091). Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to implement, employed the word "may," it is, therefore, improper and highly irregular for the COMELEC to have used instead the word "shall" in its rules. Moreover, there is no reason why the Manila City BOC should not

have proclaimed Basco as the sixth winning City Councilor. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result. This has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna 28 where we clarified the nature of the functions of the Board of Canvassers, viz.: The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings. (9 R.C.L., p. 1110) To the same effect is the following quotation: . . . Where there is no question as to the genuineness of the returns or that all the returns are before them, the powers and duties of canvassers are limited to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained. (20 C.J., 200-201) [Emphasis supplied] Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real issue. These three cases do not in any manner refer to void proclamations resulting from the mere pendency of a disqualification case.

In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of contested election returns. In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of Canvassers' violation of its ministerial duty to proclaim the candidate receiving the highest number of votes and pave the way to succession in office. In said case, the candidate receiving the highest number of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere second-placer, the mayor. Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only on advanced copies of election returns which, under the law then prevailing, could not have been a proper and legal basis for proclamation. With no precedent clearly in point, petitioner's arguments must, therefore, be rejected. IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate? Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place. Thus, petitioner's emphatic reference to Labo v. COMELEC, 29 where we laid down a possible exception to the rule that a second placer may not be declared the winning candidate, finds no application in this case. The exception

is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's allegation that Basco was wellknown to have been disqualified in the small community where he ran as a candidate is purely speculative and conjectural, unsupported as it is by any convincing facts of record to show notoriety of his alleged disqualification. 30 In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion. There is then no more legal impediment for private respondent's continuance in office as City Councilor for the Second District of Manila. WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of merit. The assailed resolution of respondent Commission on Elections (COMELEC) in SPA 95-212 dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur. Padilla, Bellosillo, Kapunan and Francisco, JJ., are on leave. Footnotes G.R. No. 131255 May 20, 1998

HON. EDUARDO NONATO JOSON, in his capacity as the Governor of the Province of Nueva Ecija, petitioner, vs. EXECUTIVE SECRETARY RUBEN D. TORRES, the DEPARTMENT OF THE INTERIOR & LOCAL GOVERNMENTS, represented by SECRETARY ROBERT Z. BARBERS and UNDERSECRETARY MANUEL R. SANCHEZ, MR. OSCAR C. TINIO, in his capacity as Provincial Vice-Governor of Nueva Ecija, and MR. LORETO P. PANGILINAN, MR. CRISPULO S. ESGUERRA, MS. SOLITA C. SANTOS, MR. VICENTE C. PALILIO, and MR. NAPOLEON G. INTERIOR, in their capacity as Provincial Board Members of Nueva Ecija, respondents.

PUNO, J.: The case at bar involves the validity of the suspension from office of petitioner Eduardo Nonato Joson as Governor of the province of Nueva Ecija. Private respondent Oscar C. Tinio is the ViceGovernor of said province while private respondents Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and Napoleon Interior are members of the Sangguniang Panlalawigan. On September 17, 1996, private respondents filed with the Office of the President a letter-complaint dated September 13, 1997 charging petitioner with grave misconduct and abuse of authority. Private respondents alleged that in the morning of September 12, 1996, they were at the session hall of the provincial capitol for a scheduled session of the Sangguniang Panlalawigan when petitioner belligerently barged into the Hall; petitioner angrily kicked the door and chairs in the Hall and uttered threatening words at

them; close behind petitioner were several men with long and short firearms who encircled the area. Private respondents claim that this incident was an offshoot of their resistance to a pending legislative measure supported by petitioner that the province of Nueva Ecija obtain a loan of P150 million from the Philippine National Bank; that petitioner's acts were intended to harass them into approving this loan; that fortunately, no session of the Sangguniang Panlalawigan was held that day for lack of quorum and the proposed legislative measure was not considered; that private respondents opposed the loan because the province of Nueva Ecija had an unliquidated obligation of more than P70 million incurred without prior authorization from the Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier disclosed that the province could not afford to contract another obligation; that petitioner's act of barging in and intimidating private respondents was a serious insult to the integrity and independence of the Sangguniang Panlalawigan; and that the presence of his private army posed grave danger to private respondents' lives and safety. Private respondents prayed for the suspension or removal of petitioner; for an emergency audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in light of the financial condition of the province, to wit: In this regard, we respectfully request for the following assistance from your good office: 1. To immediately suspend Governor N. [sic] Joson considering the actual dangers that we are facing now, and provide adequate police security detail for the Sangguniang Panlalawigan of Nueva Ecija. Should the evidence warrant after investigation, to order his removal from office.

2. To conduct an emergency audit of the provincial treasury of Nueva Ecija by the auditors from the Commission on Audit Central Office with adequate police security assistance. Should the evidence so warrant, to file necessary charges against responsible and accountable officers. 3. To advise the Philippine National Bank to review the capability of the province of Nueva Ecija to secure more loans and the feasibility of the same in the light of the present financial condition of the province. Or if said loan will be contrary to sound banking practice, recommend its disapproval. 1 The letter-complaint was submitted with the joint affidavit of Elnora Escombien and Jacqueline Jane Perez, two (2) employees of the Sangguniang Panlalawigan who witnessed the incident. The letter was endorsed by Congressmen Eleuterio Violago and Pacifico Fajardo of the Second and Third Districts of Nueva Ecija, former Congressman Victorio Lorenzo of the Fourth District, and Mayor Placido Calma, President of the Mayors' League of said province. 2 The President acted on the complaint by writing on its margin the following: 17 Sep 96 To: SILG info Exec. Sec. and Sec. of Justice: 1. Noted. There appears no justification for the use of force, intimidation or armed followers in the situation of 12 Sep at the Session Hall. 2. Take appropriate preemptive and investigative actions. 3 BREAK NOT the PEACE.

FIDEL V. RAMOS (Signed). 3 President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of the members of the Sangguniang Panlalawigan to approve the proposed loan, did not appear to justify "the use of force, intimidation or armed followers." He thus instructed the then Secretary of the Interior and Local Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive and investigative actions," but to "[b]reak not the peace." The letter-complaint together with the President's marginal notes were sent to Secretary Robert Z. Barbers on September 20, 1996. Acting upon the instructions of the President, Secretary Barbers notified petitioner of the case against him 4 and attached to the notice a copy of the complaint and its annexes. In the same notice, Secretary Barbers directed petitioner "to submit [his] verified/sworn answer thereto, not a motion to dismiss, together with such documentary evidence that [he] has in support thereof, within fifteen (15) days from receipt. 5 Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and summoned petitioner and private respondents to a conference to settle the controversy. The parties entered into an agreement whereby petitioner promised to maintain peace and order in the province while private respondents promised to refrain from filing cases that would adversely affect their peaceful coexistence. 6 The peace agreement was not respected by the parties and the private respondents reiterated their letter-complaint. Petitioner was

again ordered to file his answer to the letter-complaint within fifteen days from receipt. Petitioner received a copy of this order on November 13, 1996. On the same day, petitioner requested for an extension of thirty (30) days to submit his answer because he was "trying to secure the services of legal counsel experienced in administrative law practice. 7 The Department of the Interior and Local Government (DILG), acting through Director Almario de los Santos, Officer-In-Charge of the Legal Service, granted the motion, with the thirty-day extension to be reckoned, however, from November 13, 1996, i.e., the day petitioner received the order to answer. 8 In a letter dated December 9, 1996, petitioner moved for another extension of thirty (30) days to file his answer. He stated that he had already sent letters to various law firms in Metro Manila but that he had not yet contracted their services; that the advent of the Christmas season kept him busy with "numerous and inevitable official engagements." 9 The DILG granted the request for extension "for the last time up to January 13 only." 10 On January 7, 1997, petitioner requested for another extension of thirty (30) days to file his answer. According to him, the Christmas season kept him very busy and preoccupied with his numerous official engagements; that the law firms he invited to handle his case have favorably replied but that he needed time to confer with them personally; and that during this period, he, with the help of his friends, was exploring the possibility of an amicable settlement of the case. 11 The DILG granted petitioner's request "for the last time" but gave him an extension of only ten (10) days from January 13, 1997 to January 23, 1997. The DILG also informed him that his "failure to submit answer will be considered a waiver and that the plaintiff [shall] be allowed to present his evidence ex parte." 12

Petitioner moved for reconsideration of the order. He reiterated his prayer for an extension of thirty (30) days on the following grounds: (a) that he was still in the process of choosing competent and experienced counsel; (b) that some law firms refused to accept his case because it was perceived to be politically motivated; and (c) the multifarious activities, appointments and official functions of his office hindered his efforts to secure counsel of choice. 13 Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then Acting Secretary of the DILG, issued an order declaring petitioner in default and to have waived his right to present evidence. Private respondents were ordered to present their evidence ex-parte. The order reads as follows: ORDER It appearing that respondent failed to submit his answer to the complaint despite the grant to him of three (3) extensions, such unreasonable failure is deemed a waiver of his right to present evidence in his behalf pursuant to Section 4, Rule 4 of Administrative Order No. 23 dated December 17, 1992, as amended. Respondent is hereby declared in default, meanwhile, complainants are directed to present their evidence ex-parte. However, considering the prohibition on the conduct of administrative investigation due to the forthcoming barangay elections, complainants will be notified on the date after the barangay election for them to present their evidence. SO ORDERED. 14

Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar & Asuncion, representing petitioner, filed with the DILG an "Entry of Appearance with Motion for Time to File Answer Ad Cautelam." Petitioner received a copy of the order of default on May 2, 1997. Through counsel, he moved for reconsideration. On May 19, 1997, Undersecretary Sanchez reconsidered the order of default in the interest of justice. He noted the appearance of petitioner's counsel and gave petitioner "for the last time" fifteen (15) days from receipt to file his answer. 15 On June 23, 1997, Undersecretary Sanchez issued an order stating that petitioner's counsel, whose office is in Manila, should have received a copy of the May 19, 1997 order ten days after mailing on May 27, 1997. Since petitioner still failed to file his answer, he was deemed to have waived his right to present evidence in his behalf. Undersecretary Sanchez reinstated the order of default and directed private respondents to present their evidence ex-parte on July 15, 1997. 16 The following day, June 24, 1997, petitioner, through counsel, filed a "Motion to Dismiss." Petitioner alleged that the letter-complaint was not verified on the day it was filed with the Office of the President; and that the DILG had no jurisdiction over the case and no authority to require him, to answer the complaint. On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for Reconsideration" of the order of June 23, 1997 reinstating the order of default. Petitioner also prayed that the hearing on the merits of the case be held in abeyance until after the "Motion to Dismiss" shall have been resolved.

On July 11, 1997, on recommendation of Secretary Barbers, Executive Secretary Ruben Torres issued an order, by authority of the President, placing petitioner under preventive suspension for sixty (60) days pending investigation of the charges against him. 17 Secretary Barbers directed the Philippine National Police to assist in the implementation of the order of preventive suspension. In petitioner's stead, Secretary Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such time as petitioner's temporary legal incapacity shall have ceased to exist. 18 Forthwith, petitioner filed a petition for certiorari and prohibition with the Court of Appeals challenging the order of preventive suspension and the order of default. 19 Meanwhile, the proceedings before the DILG continued. On August 20, 1997, Undersecretary Sanchez issued an order denying petitioner's "Motion to Dismiss" and " Urgent Ex-Parte Motion for Reconsideration." In the same order, he required the parties to submit their position papers within an inextendible period of ten days from receipt after which the case shall be deemed submitted for resolution, to wit: WHEREFORE, for lack of merit, both motions are denied. However, for this office to have a better appreciation of the issues raised in the instant case, the parties, through their respective counsels are hereby directed to submit their position papers within a period of ten (10) days from receipt hereof, which period is inextendible, after which the case is deemed submitted for resolution. 20 On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of Preventive Suspension." On September 10, 1997,

petitioner followed this with a "Motion to Lift Default Order and Admit Answer Ad Cautelam." 21 Attached to the motion was the "Answer Ad Cautelam". 22 and sworn statements of his witnesses. On the other hand, complainants (private respondents herein) manifested that they were submitting the case for decision based on the records, the complaint and affidavits of their witnesses. 23 In his Answer Ad Cautelam, petitioner alleged that in the morning of September 12, 1996, while he was at his district office in the town of Munoz, he received a phone call from Sangguniang Panlalawigan member Jose del Mundo. Del Mundo, who belonged to petitioner's political party, informed him that Vice-Governor Tinio was enraged at the members of the Sangguniang Panlalawigan who were in petitioner's party because they refused to place on the agenda the ratification of the proposed P150 million loan of the province. Petitioner repaired to the provincial capitol to advise his party-mates on their problem and at the same time attend to his official functions. Upon arrival, he went to the Session Hall and asked the members present where Vice-Governor Tinio was. However, without waiting for their reply, he left the Hall and proceeded to his office. Petitioner claimed that there was nothing in his conduct that threatened the members of the Sangguniang Panlalawigan or caused alarm to the employees. He said that like Vice-Governor Tinio, he was always accompanied by his official security escorts whenever he reported for work. He also alleged that the joint affidavit of Elnora Escombien and Jacqueline Jane Perez was false. Escombien was purportedly not inside the session hall during the incident but was at her desk at the office and could not in any way have seen petitioner in the hall. To attest to the truth of his allegations, petitioner submitted three (3) joint affidavits two (2)

affidavits executed by six (6) and ten (10) employees, respectively, of the provincial government, and a third by four members of the Sangguniang Panlalawigan. 24 On September 11, 1997, petitioner filed an "Urgent Motion for Reconsideration" of the order of August 20, 1997 denying his motion to dismiss. The "Urgent Motion for Reconsideration" was rejected by Undersecretary Sanchez on October 8, 1997. Undesecretary Sanchez, however, granted the "Motion to Lift Default Order and to Admit Answer Ad Cautelam" and admitted the "Answer Ad Cautelam" as petitioner's position paper pursuant to the order of August 20, 1997. 25 On October 15, 1997, petitioner filed a "Motion to Conduct Formal Investigation." Petitioner prayed that a formal investigation of his case be conducted pursuant to the provisions of the Local Government Code of 1991 and Rule 7 of Administrative Order No. 23; and that this be held at the province of Nueva Ecija. 26 On October 29, 1997, petitioner submitted a "Manifestation and Motion" before the DILG reiterating his right to a formal investigation. In the meantime, on October 24, 1997, the Court of Appeals dismissed petitioner's petition. 27 Hence this recourse. The proceedings before the DILG continued however. In an order dated November 11, 1997, the DILG denied petitioner's "Motion to Conduct Formal Investigation" declaring that the submission of position papers substantially complies with the requirements of procedural due process in administrative proceedings. 28

A few days after filing the petition before this Court, petitioner filed a "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction." Petitioner alleged that subsequent to the institution of this petition, the Secretary of the Interior and Local Governments rendered a resolution on the case finding him guilty of the offenses charged. 29 His finding was based on the position papers and affidavits of witnesses submitted by the parties. The DILG Secretary found the affidavits of complainants' witnesses to be "more natural, reasonable and probable" than those of herein petitioner Joson's. 30 On January 8, 1998, the Executive Secretary, by authority of the President, adopted the findings and recommendation of the DILG Secretary. He imposed on petitioner the penalty of suspension from office for six (6) months without pay, to wit: WHEREFORE, as recommended by the Secretary of the Interior and Local Government, respondent Nueva Ecija Governor Eduardo Nonato Joson is hereby found guilty of the offenses charged and is meted the penalty of suspension from office for a period of six (6) months without pay. 31 On January 14, 1998, we issued a temporary restraining order enjoining the implementation of the order of the Executive Secretary. On January 19, 1998, private respondents submitted a Manifestation informing this Court that the suspension of petitioner was implemented on January 9, 1998; that on the same day, private respondent Oscar Tinio was installed as Acting Governor of the province; and that in view of these events, the temporary restraining

order had lost its purpose and effectivity and was fait accompli. We noted this Manifestation. In his petition, petitioner alleges that:

32

I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT RULES OF PROCEDURE AND EVIDENCE SHOULD NOT BE STRICTLY APPLIED IN THE ADMINISTRATIVE DISCIPLINARY AND CLEARLY PUNITIVE PROCEEDINGS IN THE CASE AGAINST PETITIONER GOVERNOR EDNO JOSON; II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE ALTER-EGO PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS THE SECRETARY OF THE DILG WHO WAS EXERCISING THE POWERS OF THE PRESIDENT WHICH ARE CLEARLY VESTED BY LAW ONLY UPON HIM OR THE EXECUTIVE SECRETARY. III THE COURT OF APPEALS ERRED IN RULING THAT THE PETITIONER WAS PROPERLY DECLARED IN DEFAULT WHEN HE FILED A MOTION TO DISMISS INSTEAD OF AN ANSWER, AS DIRECTED BY THE DILG, BECAUSE A MOTION TO DISMISS BASED ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic] PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES. IV THE COURT OF APPEALS ERRED IN RULING THAT THE IMPOSITION OF PREVENTIVE SUSPENSION AGAINST THE PETITIONER WAS PROPER BECAUSE THERE WAS NO JOINDER OF ISSUES YET UPON ITS IMPOSITION AND THERE WAS NO EVIDENCE OF GUILT AGAINST PETITIONER. 33

In his "Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction," petitioner also claims that: I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA ISSUED PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F," AND "G" HEREOF) WERE ISSUED WITH UNDUE HASTE, IN VIOLATION OF THE PERTINENT PROVISIONS OF THE 1991 LOCAL GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO. 23, AND IN COMPLETE DISREGARD OF PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS. II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE PUBLIC RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF PRELIMINARY INJUNCTION HEREIN PRAYED FOR. 34 We find merit in the petition. Administrative disciplinary proceedings against elective local officials are governed by the Local Government Code of 1991, the Rules and Regulations Implementing the Local Government Code of 1991, and Administrative Order No. 23 entitled "Prescribing the Rules and Procedures on the Investigation of Administrative Disciplinary Cases Against Elective Local Officials of Provinces, Highly Urbanized Cities, Independent Component Cities, and Cities and Municipalities in Metropolitan Manila." 35 In all matters not provided in A.O. No. 23, the Rules of Court and the Administrative Code of 1987 apply in a suppletory character. 36

I Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates the grounds for which an elective local official may be disciplined, suspended or removed from office. Section 60 reads: Sec. 60. Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlunsod, sangguniang bayan, and sangguniang barangay; (g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws. An elective local official may be removed from office on the grounds enumerated above by order of the proper court. When an elective local official commits an act that falls under the grounds for disciplinary action, the administrative complaint against him must be verified and filed with any of the following: Sec. 61. Form and Filing of Administrative Complaints. A verified complaint against any erring local elective official shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President. (b) A complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose decision may be appealed to the Office of the President; and (c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory. 37 An administrative complaint against an erring elective official must be verified and filed with the proper government office. A complaint against an elective provincial or city official must be filed with the Office of the President. A complaint against an elective municipal official must be filed with the Sangguniang Panlalawigan while that of a barangay official must be filed before the Sangguniang

Panlungsod or Sangguniang Bayan. In the instant case, petitioner Joson is an elective official of the province of Nueva Ecija. The letter-complaint against him was therefore properly filed with the Office of the President. According to petitioner, however, the letter-complaint failed to conform with the formal requirements set by the Code. He alleges that the complaint was not verified by private respondents and was not supported by the joint affidavit of the two witnesses named therein; that private respondents later realized these defects and surreptitiously inserted the verification and sworn statement while the complaint was still pending with the Office of the President. 38 To prove his allegations, petitioner submitted: (a) the sworn statement of private respondent Solita C. Santos attesting to the alleged fact that after the lettercomplaint was filed, Vice-Governor Tinio made her and the other members of the Sangguniang Panlalawigan sign an additional page which he had later notarized; and (b) the fact that the verification of the letter-complaint and the joint affidavit of the witnesses do not indicate the document, page or book number of the notarial register of the notary public before whom they were made. 39 We find no merit in the contention of the petitioner. The absence of the document, page or book number of the notarial register of the subscribing officer is insufficient to prove petitioner's claim. The lack of these entries may constitute proof of neglect on the part of the subscribing officer in complying with the requirements for notarization and proper verification. They may give grounds for the revocation of his notarial commission. 40 But they do not indubitably prove that the verification was inserted or intercalated after the letter-complaint was filed with the Office of the President. Nor is the fact of intercalation sufficiently established by the affidavit

of Solita C. Santos. Private respondent Santos was one of the signatories to the letter-complaint. In her affidavit, she prayed that she be dropped as one of the complainants since she had just joined the political party of petitioner Joson. She decided to reveal the intercalation because she was disillusioned with the "dirty tactics" of Vice-Governor Tinio to grab power from petitioner Joson. 41 Private respondent Santos cannot in anyway be considered an unbiased witness. Her motive and change of heart render her affidavit suspect. Assuming, nonetheless, that the letter-complaint was unverified when submitted to the Office of the President, the defect was not fatal. The requirement of verification was deemed waived by the President himself when he acted on the complaint. Verification is a formal, not jurisdictional requisite. 42 Verification is mainly intended to secure an assurance that the allegations therein made are done in good faith or are true and correct and not mere speculation. 43 The lack of verification is a mere formal defect. 44 The court may order the correction of the pleading, if not verified, or act on the unverified pleading if the attending circumstances are such that a strict compliance with the rule may be dispensed with in order that the ends of justice may be served. 45 II In his second assigned error, petitioner questions the jurisdiction and authority of the DILG Secretary over the case. He contends that under the law, it is the Office of the President that has jurisdiction over the letter-complaint and that the Court of Appeals erred in applying the alter-ego principle because the power to discipline elective local officials lies with the President, not with the

DILG Secretary. Jurisdiction over administrative disciplinary actions against elective local officials is lodged in two authorities: the Disciplining Authority and the Investigating Authority. This is explicit from A.O. No. 23, to wit: Sec. 2. Disciplining Authority. All administrative complaints, duly verified, against elective local officials mentioned in the preceding Section shall be acted upon by the President. The President, who may act through the Executive Secretary, shall hereinafter be referred to as the Disciplining Authority. Sec. 3. Investigating Authority. The Secretary of the Interior and Local Government is hereby designated as the Investigating Authority. He may constitute an Investigating Committee in the Department of the Interior and Local Government for the purpose. The Disciplining Authority may, however, in the interest of the service, constitute a Special Investigating Committee in lieu of the Secretary of the Interior and Local Government. 46 Pursuant to these provisions, the Disciplining Authority is the President of the Philippines, whether acting by himself or through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the Disciplinary Authority may designate a Special Investigating Committee. The power of the President over administrative disciplinary cases

against elective local officials is derived from his power of general supervision over local governments. Section 4, Article X of the 1987 Constitution provides: Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. 47 The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers perform their duties." 48 If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. 49 The President's power of general supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. 50 Supervision is not incompatible with discipline. 51 And the power to discipline and ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires. 52 Thus: Independently of any statutory provision authorizing the President to conduct an investigation of the nature involved in this proceeding, and in view of the nature and character of the executive authority with which the President of the Philippines is invested, the constitutional grant to him of power to exercise general supervision over all local governments and to take care that the laws be faithfully executed must be construed to authorize him to order an investigation of the act or conduct of the petitioner herein.

Supervision is not a meaningless thing. It is an active power. It is certainly not withou t limitation, but it at least implies authority to inquire into facts and conditions in order to render the power real and effective. If supervision is to be conscientious and rational, and not automatic and brutal, it must be founded upon a knowledge of actual facts and conditions disclosed after careful study and investigation. 53 The power to discipline evidently includes the power to investigate. As the Disciplining Authority, the President has the power derived from the Constitution itself to investigate complaints against local government officials. A.O. No. 23, however, delegates the power to investigate to the DILG or a Special Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue delegation, contrary to petitioner Joson's claim. The President remains the Disciplining Authority. What is delegated is the power to investigate, not the power to discipline. 54 Moreover, the power of the DILG to investigate administrative complaints is based on the alter-ego principle or the doctrine of qualified political agency. Thus: Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments,

performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. 55 This doctrine is corollary to the control power of the President. The power of control is provided in the Constitution, thus:
56

from receipt thereof, and commence investigation of the case within ten (10) days after receipt of such answer of the respondent. xxx xxx xxx Sections 1 and 3, Rule 5 61 of A.O. No. 23 provide: Sec. 1. Commencement. Within forty-eight (48) hours from receipt of the answer, the Disciplining Authority shall refer the complaint and answer, together with their attachments and other relevant papers, to the Investigating Authority who shall commence the investigation of the case within ten (10) days from receipt of the same. xxx xxx xxx Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and answer, the Investigating Authority shall determine whether there is a prima facie case to warrant the institution of formal administrative proceedings. When an administrative complaint is therefore filed, the Disciplining Authority shall issue an order requiring the respondent to submit his verified answer within fifteen (15) days from notice. Upon filing of the answer, the Disciplining Authority shall refer the case to the Investigating Authority for investigation. In the case at bar, petitioner claims that the DILG Secretary usurped the power of the President when he required petitioner to answer the complaint. Undisputably, the letter-complaint was filed with the Office of the President but it was the DILG Secretary who ordered petitioner to answer.

Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. 57 Control is said to be the very heart of the power of the presidency. 58 As head of the Executive Department, the President, however, may delegate some of his powers to the Cabinet members except when he is required by the Constitution to act in person or the exigencies of the situation demand that he acts personally. 59 The members of Cabinet may act for and in behalf of the President in certain matters because the President cannot be expected to exercise his control (and supervisory) powers personally all the time. Each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority. 60 The procedure how the Disciplining and Investigating Authorities should exercise their powers is distinctly set forth in the Local Government Code and A.O. No. 23. Section 62 of the Code provides: Sec. 62. Notice of Hearing. (a) Within seven (7) days after the administrative complaint is filed, the Office of the President or the sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer within fifteen (15) days

Strictly applying the rules, the Office of the President did not comply with the provisions of A.O. No. 23. The Office should have first required petitioner to file his answer. Thereafter, the complaint and the answer should have been referred to the Investigating Authority for further proceedings. Be that as it may, this procedural lapse is not fatal. The filing of the answer is necessary merely to enable the President to make a preliminary assessment of the case. 62 The President found the complaint sufficient in form and substance to warrant its further investigation. The judgment of the President on the matter is entitled to respect in the absence of grave abuse of discretion. III In his third assigned error, petitioner also claims that the DILG erred in declaring him in default for filing a motion to dismiss. He alleges that a motion to dismiss is not a pleading prohibited by the law or the rules and therefore the DILG Secretary should have considered it and given him time to file his answer. It is true that a motion to dismiss is not a pleading prohibited under the Local Government Code of 1991 nor in A.O. No. 23. Petitioner, however, was instructed not to file a motion to dismiss in the order to file answer. Thrice, he requested for extension of time to file his answer citing as reasons the search for competent counsel and the demands of his official duties. And, thrice, his requests were granted. Even the order of default was reconsidered and petitioners was given additional time to file answer. After al the requests and seven months later, he filed a motion to dismiss! Petitioner should know that the formal investigation of the case is required by law to be finished within one hundred twenty (120) days

from the time of formal notice to the respondent. The extensions petitioners requested consumed fifty-five (55) days of this period. 63 Petitioner, in fact, filed his answer nine (9) months after the first notice. Indeed, this was more than sufficient time for petitioner to comply with the order to file answer. The speedy disposition of administrative complaints is required by public service. The efficiency of officials under investigation is impaired when a case hangs over their heads. Officials deserve to be cleared expeditiously if they are innocent, also expeditiously if guilty, so that the business of government will not be prejudiced. 64 IV In view of petitioner's inexcusable failure to file answer, the DILG did not err in recommending to the Disciplining Authority his preventive suspension during the investigation. Preventive suspension is authorized under Section 63 of the Local Government Code, viz: Sec. 63. Preventive Suspension. (a) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; xxx xxx xxx (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. xxx xxx xxx In sum, preventive suspension may be imposed by the Disciplining Authority at any time (a) after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of the offense, there is great probability that the respondent, who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. Executive Secretary Torres, on behalf of the President, imposed preventive suspension on petitioner Joson after finding that: xxx xxx xxx DILG Secretary Robert Z. Barbers, in a memorandum for the President, dated 23 June 1997, recommends that respondent be placed under preventive suspension considering that all the requisites to justify the same are present. He stated therein that: "Preventive suspension may be imposed at any time after issues are joined, that is, after respondent has answered complaint, when the evidence of guilt is strong and, given gravity of the offense, there is a great possibility that the the the the

continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence (Sec. 3, Rule 6 of Administrative Order No. 23). The failure of respondent to file his answer despite several opportunities given him is construed as a waiver of his right to present evidence in his behalf (Sec. 4, Rule 4 of Administrative Order No. 23). The requisite of joinder of issues is squarely met with respondent's waiver of right to submit his answer. The act of respondent in allegedly barging violently into the session hall of the Sangguniang Panlalawigan in the company of armed men constitutes grave misconduct. The allegations of complainants are bolstered by the joint-affidavit of two (2) employees of the Sangguniang Panlalawigan. Respondent who is the chief executive of the province is in a position to influence the witnesses. Further, the history of violent confrontational politics in the province dictates that extreme precautionary measures be taken." Upon scrutiny of the records and the facts and circumstances attendant to this case, we concur with the findings of the Secretary of the Interior and Local Government and find merit in the aforesaid recommendation. WHEREFORE, and as recommended by the Department of the Interior and Local Government, respondent EDUARDO N. JOSON, Governor of Nueva Ecija, is hereby placed under PREVENTIVE SUSPENSION FOR A PERIOD OF SIXTY (60) DAYS, effective 11 July 1997, pending investigation of the charges filed against him. SO ORDERED. 65 Executive Secretary Torres found that all the requisites for the

imposition of preventive suspension had been complied with. Petitioner's failure to file his answer despite several opportunities given him was construed as a waiver of his right to file answer and present evidence; and as a result of this waiver, the issues were deemed to have been joined. The Executive Secretary also found that the evidence of petitioner Joson's guilt was strong and that his continuance in office during the pendency of the case could influence the witnesses and pose a threat to the safety and integrity of the evidence against him. V We now come to the validity of the January 8, 1998 Resolution of the Executive Secretary finding petitioner guilty as charged and imposing on him the penalty of suspension from office for six (6) months from office without pay. Petitioner claims that the suspension was made without formal investigation pursuant to the provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To Conduct Formal Investigation" three months before the issuance of the order of suspension and this motion was denied by the DILG for the following reasons: On November 19, 1997, complainants, through counsel, filed a Manifestation calling our attention to the Decision dated October 24, 1997 of the Court of Appeals, Fifth Division in CA-G.R. SP No. 44694, entitled "Eduardo Nonato Joson versus Executive Secretary Ruben D. Torres, et. al." In the aforestated decision, the Court of Appeals resolved to sustain the authority of this Department to investigate this administrative case and has likewise validated the order of default as well as the order of preventive suspension of the respondent.

We offer no objection and concur with the assertion of respondent that he has the right for the conduct of formal investigation. However, before there shall be a formal investigation, joinder of issues must already be present or respondent's answer has already been filed. In the case at bar, the admission of respondent's answer after having been declared in default was conditioned on the fact of submission of position papers by the parties, after which, the case shall be deemed submitted for resolution. Respondent, instead of submitting his position paper filed his subject motion while complainants manifested to forego the submission of position paper and submit the case for resolution on the basis of the pleadings on hand. Settled is the rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied (Concerned Officials of the Metropolitan Waterworks and Sewerage System v. Vasquez, 240 SCRA 502). The essence of due process is to be found in the reasonable opportunity to be heard and to submit evidence one may have in support of one's defense (Tajonera v. Lamaroza, 110 SCRA 438). To be heard does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process (Juanita Y. Say, et. al; vs. IAC, G.R. No. 73451). Thus, when respondent failed to submit his position paper as directed and insisted for the conduct of formal investigation, he was not denied of his right of procedural process. WHEREFORE, the Motion for the Conduct of Formal Investigation, for lack of merit, is DENIED. SO ORDERED. 66

The denial of petitioner's Motion to Conduct Formal Investigation is erroneous. Petitioner's right to a formal investigation is spelled out in the following provisions of A.O. No. 23, viz: Sec. 3 Evaluation. Within twenty (20) days from receipt of the complaint and answer, the Investigating Authority shall determine whether there is a prima facie case to warrant the institution of formal administrative proceedings. Sec. 4. Dismissal motu proprio. If the Investigating Authority determines that there is no prima facie case to warrant the institution of formal administrative proceedings, it shall, within the same period prescribed under the preceding Section, submit its recommendation to the Disciplining Authority for the motu proprio dismissal of the case, together with the recommended decision, resolution, and order. Sec. 5. Preliminary conference. If the Investigating Authority determines that there is prima facie case to warrant the institution of formal administrative proceedings, it shall, within the same period prescribed under the preceding Section, summon the parties to a preliminary conference to consider the following: a) whether the parties desire a formal investigation or are willing to submit the case for resolution on the basis of the evidence on record; and b) If the parties desire a formal investigation, to consider the simplification of issues, the possibility of obtaining stipulation or admission of facts and of documents, specifically affidavits and depositions, to avoid unnecessary proof, the limitation of number of witnesses, and such other matters as may be aid the prompt

disposition of the case. The Investigating Authority shall encourage the parties and their counsels to enter, at any stage of the proceedings, into amicable settlement, compromise and arbitration, the terms and conditions of which shall be subject to the approval of the Disciplining Authority. After the preliminary conference, the Investigating Authority shall issue an order reciting the matters taken up thereon, including the facts stipulated and the evidences marked, if any. Such order shall limit the issues for hearing to those not disposed of by agreement or admission of the parties, and shall schedule the formal investigation within ten (10) days from its issuance, unless a later date is mutually agreed in writing by the parties concerned. 67 The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam where he disputed the truth of the allegations that he barged into the session hall of the capitol and committed physical violence to harass the private respondents who were opposed to any move for the province to contract a P150 million loan from PNB. In his Order of October 8, 1997, Undersecretary Sanchez admitted petitioner's Answer Ad Cautelam but treated it as a position paper. On October 15, 1997, petitioner filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on October 29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary Barbers found petitioner guilty as charged on the basis of the parties' position papers. On January 8, 1998, Executive Secretary Torres adopted Secretary Barbers' findings and recommendations and imposed on petitioner the penalty of six (6) months suspension without pay. The rejection of petitioner's right to a formal investigation denied

him procedural due process. Section 5 of A.O. No. 23 provides that at the preliminary conference, the Investigating Authority shall summon the parties to consider whether they desire a formal investigation. This provision does not give the Investigating Authority the discretion to determine whether a formal investigation would be conducted. The records show that petitioner filed a motion for formal investigation. As respondent, he is accorded several rights under the law, to wit: Sec. 65. Rights of Respondent. The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary evidence in his favor through compulsory process of subpoena or subpoena duces tecum. An erring elective local official has rights akin to the constitutional rights of an accused. 68 These rights are essentially part of procedural due process. 69 The local elective official has the (1) the right to appear and defend himself in person or by counsel; (2) the right to confront and cross-examine the witnesses against him; and (3) the right to compulsory attendance of witness and the production of documentary evidence. These rights are reiterated in the Rules Implementing the Local Government Code 70 and in A.O. No. 23. 71 Well to note, petitioner, formally claimed his right to a formal investigation after his Answer Ad Cautelam has been admitted by Undersecretary Sanchez. Petitioner's right to a formal investigation was not satisfied when the complaint against him was decided on the basis of position papers. There is nothing in the Local Government Code and its Implementing Rules and Regulations nor in A.O. No. 23 that

provide that administrative cases against elective local officials can be decided on the basis of position papers. A.O. No. 23 states that the Investigating Authority may require the parties to submit their respective memoranda but this is only after formal investigation and hearing. 72 A.O. No. 23 does not authorize the Investigating Authority to dispense with a hearing especially in cases involving allegations of fact which are not only in contrast but contradictory to each other. These contradictions are best settled by allowing the examination and cross-examination of witnesses. Position papers are often-times prepared with the assistance of lawyers and their artful preparation can make the discovery of truth difficult. The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal investigation applies to appointive officials and employees. Administrative disciplinary proceedings against elective government officials are not exactly similar to those against appointive officials. In fact, the provisions that apply to elective local officials are separate and distinct from appointive government officers and employees. This can be gleaned from the Local Government Code itself. In the Local Government Code, the entire Title II of Book I of the Code is devoted to elective officials. It provides for their qualifications and election, 73 vacancies and succession, 74 local legislation, 75 disciplinary actions, 76 and recall. 77 Appointive officers and employees are covered in Title III of Book I of the Code entitled "Human Resources and Development." All matters pertinent to human resources and development in local government units are regulated by "the civil service law and such rules and regulations and other issuances promulgated thereto, unless otherwise provided in the Code." 78 The "investigation and adjudication of administrative complaints against appointive local officials and employees as well as their suspension and removal" are "in

accordance with the civil service law and rules and other pertinent laws," the results of which "shall be reported to the Civil Service Commission." 79 It is the Administrative Code of 1987, specifically Book V on the Civil Service, that primarily governs appointive officials and employees. Their qualifications are set forth in the Omnibus Rules Implementing Book V of the said Code. The grounds for administrative disciplinary action in Book V are much more in number and are specific than those enumerated in the Local Government Code against elective local officials. 80 The disciplining authority in such actions is the Civil Service Commission. 81 although the Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities are also given the power to investigate and decide disciplinary actions against officers and employees under their jurisdiction. 82 When a complaint is filed and the respondent answers, he must "indicate whether or not he elects a formal investigation if his answer is not considered satisfactory." 83 If the officer or employee elects a formal investigation, the direct evidence for the complainant and the respondent "consist[s] of the sworn statement and documents submitted in support of the complaint and answer, as the case may be, without prejudice to the presentation of additional evidence deemed necessary . . ., upon which the cross-examination by respondent and the complainant, respectively, is based." 84 The investigation is conducted without adhering to the technical rules applicable in judicial proceedings." 85 Moreover, the appointive official or employee may be removed or dismissed summarily if (1) the charge is serious and the evidence of guilt is strong; (2) when the respondent is a recidivist; and (3) when the respondent is notoriously undesirable. 86

The provisions for administrative disciplinary actions against elective local officials are markedly different from appointive officials. 87 The rules on the removal and suspension of elective local officials are more stringent. The procedure of requiring position papers in lieu of a hearing in administrative cases is expressly allowed with respect to appointive officials but not to those elected. An elective official, elected by popular vote, is directly responsible to the community that elected him. The official has a definite term of office fixed by law which is relatively of short duration. Suspension and removal from office definitely affects and shortens this term of office. When an elective official is suspended or removed, the people are deprived of the services of the man they had elected. Implicit in the right of suffrage is that the people are entitled to the services of the elective official of their choice. 88 Suspension and removal are thus imposed only after the elective official is accorded his rights and the evidence against him strongly dictates their imposition. IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public respondent Executive Secretary is declared null and void and is set aside. No Cost. SO ORDERED. Regalado, Melo, Mendoza and Martinez, JJ., concur. A.M. No. MTJ-981147 July 2, 1998 JESUS S. CONDUCTO, complainant, vs.

JUDGE ILUMINADO C. MONZON, respondent. RESOLUTION

consanguinity or affinity as barangay secretary. The order of dismissal was submitted to the Office of the Deputy Ombudsrnan for Luzon. On 22 October 1993, complainant obtained Opinion No. 246, s. 1993 3 from Director Jacob Montesa of the Department of Interior and Local Government, which declared that the appointment issued by Maghirang to his sister-in-law violated paragraph (2), Section 95 of B.P. Blg. 337, the Local Government Code prior to the Local Government Code of 1991. In its Revised Resolution of 29 November 1993, 4 the Office of the Deputy Ombudsman for Luzon dismissed the case, but ordered Maghirang to replace his sister-in-law as barangay secretary. On 20 December 1993, complainant moved that the Office of the Deputy Ombudsman for Luzon reconsider 5 the order of 29 November 1993, in light of Opinion No. 246, s. 1993 of Director Montesa. Acting on the motion, Francisco Samala, Graft Investigation Officer II of the Office of the Deputy Ombudsman for Luzon, issued an order 6 on 8 February 1994 granting the motion for reconsideration and recommending the filing of an information for unlawful appointment (Article 244 of the Revised Penal Code) against Maghirang. The recommendation was duly approved by Manuel C. Domingo, Deputy Ombudsman for Luzon. In a 3rd indorsement dated 4 March 1994, 7 the Deputy Ombudsman for Luzon transmitted the record of the case to the Office of the City Prosecutor of San Pablo City and instructed the latter to file the corresponding information against Maghirang with

DAVIDE, JR., J.: In a sworn letter-complaint dated 14 October 1996, 1 complainant charged respondent Judge Iluminado C. Monzon of the Municipal Trial Court in Cities, San Pablo City, with ignorance of law, in that he deliberately refused to suspend a barangay chairman who was charged before his court with the crime of unlawful appointment under Article 244 of the Revised Penal Code. The factual antecedents recited in the letter-complaint are not controverted. On 30 August 1993, complainant filed a complaint with the Sangguniang Panlungsod of San Pablo City against one Benjamin Maghirang, the barangay chairman of Barangay III-E of San Pablo City, for abuse of authority, serious irregularity and violation of law in that, among other things, said respondent Maghirang appointed his sister-in-law, Mrs. Florian Maghirang, to the position of barangay secretary on 17 May 1989 in violation of Section 394 of the Local Government Code. At the same time, complainant filed a complaint for violation of Article 244 of the Revised Penal Code with the Office of the City Prosecutor against Maghirang, which was, however, dismissed 2 on 30 September 1993 on the ground that Maghirang's sister-in-law was appointed before the effectivity of the Local Government Code of 1991, which prohibits a punong barangay from appointing a relative within the fourth civil degree of

the proper court and to prosecute the case. The information for violation of Article 244 of the Revised Penal Code was forthwith filed with the Municipal Trial Court in Cities in San Pablo City and docketed as Criminal Case No. 26240. On 11 April 1994, the presiding judge, respondent herein, issued a warrant for the arrest of Maghirang, with a recommendation of a P200.00 bond for his provisional liberty. With prior leave from the Office of the Deputy Ombudsman for Luzon, on 4 May 1995, the City Prosecutor filed, in Criminal Case No. 26240, a motion for the suspension 8 of accused Maghirang pursuant to Section 13 of R.A. No. 3019, as amended, which reads, in part: Sec. 13. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a single or as complex offense and in whatever stage of execution and mode of participation, is pending in Court, shall be suspended from office. In his Order of 30 June 1995, 9 respondent judge denied the motion for suspension on the ground that: [T]he alleged offense of UNLAWFUL APPOINTMENT under Article 244 of the Revised Penal Code was committed on May 17, 1989, during [Maghirang's] terms (sic) of office from 1989 to 1994 and said accused was again re-elected as Barangay Chairman during the last Barangay Election of May 9, 1994, hence, offenses committed during previous term is (sic) not a cause for removal (Lizarez vs. Hechanova, et al., G.R. No. L-22059, May 17, 1965); an order of suspension from office relating to a given term may not

be the basis of contempt with respect to ones (sic) assumption of the same office under a new term (Oliveros vs. Villaluz, G.R. No. L34636, May 30, 1971) and, the Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would deprieve (sic) the people of their right to elect their officer. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or mis conduct ( sic), if he had been guilty if any. (Aguinaldo vs. Santos, et al., G.R. No. 94115, August 21, 1992). The prosecution moved for reconsideration 10 of the order, alleging that the court had confused removal as a penalty in administrative cases and the "temporary removal from office (or suspension) as a means of preventing the public official, while the criminal case against him is pending, from exerting undue influence, intimidate (sic) witnesses which may affect the outcome of the case; the former is a penalty or sanction whereas the latter is a mere procedural remedy." Accordingly, "while a re-elected public official cannot be administratively punished by removing him from office for offenses committed during his previous term, . . . said public official can be temporarily removed to prevent him from wielding undue influence which will definitely be a hindrance for justice to take its natural course." The prosecution then enumerated the cases decided by this Court reiterating the rule that what a re-election of a public official obliterates are only administrative, not criminal, liabilities, incurred during previous terms. 11 In his order of 3 August 1995, reconsideration, thus:
12

respondent denied the motion for

There is no dispute that the suspension sought by the prosecution

is premised upon the act charged allegedly committed during the accused [sic] previous term as Barangay Chairman of Brgy. III-E. San Pablo City, who was subsequently re-elected as Barangay Chairman again during the last Barangay Election of May 9, 1994. Certainly, had not the accused been re-elected the prosecution will not file the instant motion to suspend him as there is no legal basis or the issue has become academic. The instant case run [sic] parallel with the case of Lizares vs. Hechanova, et al., L-22059, May 17, 1966, 17 SCRA 58, wherein the Supreme Court subscribed to the rule denying the right to remove from office because of misconduct during a prior term. It is opined by the Court that preventive suspension is applicable only if there is [sic] administrative case filed against a local official who is at the same time criminally charged in Court. At present, the records of the Court shows [sic] that there is no pending administrative case existing or filed against the accused. It was held in the concluding paragraph of the decision by the Honorable Supreme Court in Lizares vs. Hechanova, et al., that "Since petitioner, having been duly re-elected, is no longer amenable to administrative sanctions for any acts committed during his former tenure, the determination whether the respondent validly acted in imposing upon him one month's suspension for act [sic] done during his previous term as mayor is now merely of theoretical interest. Complainant then moved that respondent inhibit himself from Criminal Case No. 26240. In his order of 21 September 1995, 13 respondent voluntarily inhibited himself. The case was assigned to Judge Adelardo S. Escoses per order of Executive Judge

Bienvenido V. Reyes of the Regional Trial Court of San Pablo City. On 15 October 1996, complainant filed his sworn letter-complaint with the Office of the Court Administrator. In his comment dated 14 February 1997, filed in compliance with the resolution of this Court of 27 January 1997, respondent asserted that he had been "continuously keeping abreast of legal and jurisprudential development [sic] in the law" since he passed the 1955 Bar Examinations; and that he issued the two challenged orders "only after due appreciation of prevailing jurisprudence on the matter," citing authorities in support thereof. He thus prayed for dismissal of this case, arguing that to warrant a finding of ignorance of law and abuse of authority, the error must be "so gross and patent as to produce an inference of ignorance or bad faith or that the judge knowingly rendered an unjust decision." 14 He emphasized, likewise, that the error had to be "so grave and on so fundamental a point as to warrant condemnation of the judge as patently ignorant or negligent;" 15 "otherwise, to hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and that would be intolerable." 16 Respondent further alleged that he earned complainant's ire after denying the latter's Motion for the Suspension of Barangay Chairman Maghirang, which was filed only after Maghirang was reelected in 1994; and that complainant made inconsistent claims, concretely, while in his letter of 4 September 1995 requesting respondent to inhibit from the case, complainant declared that he believed in respondent's integrity, competence and dignity, after he denied the request, complainant branded respondent as a "judge of poor caliber and understanding of the law, very incompetent and

has no place in Court of Justice." Finally, respondent Judge avowed that he would not dare soil his judicial robe at this time, for he had only three (3) years and nine (9) months more before reaching the compulsory age of retirement of seventy (70); and that for the last 25 years as municipal judge in the seven (7) towns of Laguna and as presiding judge of the MTCC, San Pablo City, he had maintained his integrity. In compliance with the Court's resolution of 9 March 1998, the parties, by way of separate letters, informed the Court that they agreed to have this case decided on the basis of the pleadings already filed, with respondent explicitly specifying that only the complaint and the comment thereon be considered. The Office of the Court Administrator (OCA) recommends that this Court hold respondent liable for ignorance of the law and that he be reprimanded with a warning that a repetition of the same or similar acts in the future shall be dealt with more severely. In support thereof, the OCA makes the following findings and conclusions: The claim of respondent Judge that a local official who is criminally charged can be preventively suspended only if there is an administrative case filed against him is without basis. Section 13 of RA 3019 (Anti-Graft and Corrupt Practices Act) states that: Suspension and loss of benefits Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending

in court, shall be suspended from office. It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to suspend any public officer against whom a valid information charging violation of this law, Book II, Title 7 of the RPC, or any offense involving fraud upon government or public funds or property is filed in court. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. All that is required is for the court to make a finding that the accused stands charged under a valid information for any of the above-described crimes for the purpose of granting or denying the sought for suspension. (Bolastig vs. Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235 SCRA 103). In the same case, the Court held that "as applied to criminal prosecutions under RA 3019, preventive suspension will last for less than ninety (90) days only if the case is decided within that period; otherwise, it will continue for ninety (90) days." Barangay Chairman Benjamin Maghirang was charged with Unlawful Appointment, punishable under Article 244, Title 7, Book II of the Revised Penal Code. Therefore, it was mandatory on Judge Monzon's part, considering the Motion filed, to order the suspension of Maghirang for a maximum period of ninety (90) days. This, he failed and refused to do. Judge Monzon's contention denying complainant's Motion for Suspension because "offenses committed during the previous term (is) not a cause for removal during the present term" is untenable.

In the case of Rodolfo E. Aguinaldo vs. Hen. Luis Santos and Melvin Vargas, 212 SCRA 768, the Court held that "the rule is that a public official cannot be removed for administrative misconduct committed during a prior term since his re-election to office operates as a condonation of the officer's previous misconduct committed during a prior term, to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases . . . (Emphasis supplied) Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA 1292, that "The ruling, therefore, that "when the people have elected a man to office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any" refers only to an action for removal from office and does not apply to a criminal case." (Emphasis ours) Clearly, even if the alleged unlawful appointment was committed during Maghirang's first term as barangay chairman and the Motion for his suspension was only filed in 1995 during his second term, his re-election is not a bar to his suspension as the suspension sought for is in connection with criminal case. Respondent's denial of complainant's Motion for Reconsideration left the complainant with no other judicial remedy. Since a case for Unlawful Appointment is covered by Summary Procedure, complainant is prohibited from filing a petition for certiorari, mandamus or prohibition involving an interlocutory order issued by the court. Neither can he file an appeal from the court's adverse final judgment, incorporating in his appeal the grounds assailing the interlocutory orders, as this will put the accused in double jeopardy.

All things considered, while concededly, respondent Judge manifested his ignorance of the law in denying complainant's Motion for Suspension of Brgy. Chairman Maghirang, there was nothing shown however to indicate that he acted in bad faith or with malice. Be that as it may, it would also do well to note that good faith and lack of malicious intent cannot completely free respondent from liability. This Court, in the case of Libarios and Dabalos, 199 SCRA 48, ruled: In the absence of fraud, dishonesty or corruption, the acts of a judge done in his judicial capacity are not subject to disciplinary action, even though such acts may be erroneous. But, while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet, it is highly imperative that they should be conversant with basic principles. A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in their grasp of legal principles. The findings and conclusions of the Office of the Court Administrator are in order. However, the penalty recommended, i.e., reprimand, is too light, in view of the fact that despite his claim that he has been "continuously keeping abreast of legal and jurisprudential development [sic] in law" ever since he passed the Bar Examinations in 1995, respondent, wittingly or otherwise, failed

to recall that as early as 18 December 1967 in Ingco v. Sanchez, 17 this Court explicitly ruled that the re-election of a public official extinguishes only the administrative, but not the criminal, liability incurred by him during his previous term of office, thus: The ruling, therefore, that "when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any" refers only to an action for removal from office and does not apply to a criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a public officer is concerned. Also, under the Constitution, it is only the President who may grant the pardon of a criminal offense. In Ingco, this Court did not yield to petitioner's insistence that he was benefited by the ruling in Pascual v. Provincial Board of Nueva Ecija 18 that a public officer should never be removed for acts done prior to his present term of office, as follows: There is a whale of a difference between the two cases. The basis of the investigation which has been commenced here, and which is sought to be restrained, is a criminal accusation the object of which is to cause the indictment and punishment of petitioner-appellant as a private citizen; whereas in the cases cited, the subject of the investigation was an administrative charge against the officers therein involved and its object was merely to cause his suspension

or removal from public office. While the criminal cases involves the character of the mayor as a private citizen and the People of the Philippines as a community is a party to the case, an administrative case involves only his actuations as a public officer as [they] affect the populace of the municipality where he serves. 19 Then on 20 June 1969, in Luciano v. The Provincial Governor, et al., 20 this Court likewise categorically declared that criminal liabilities incurred by an elective public official during his previous term of office were not extinguished by his re-election, and that Pascual v. Provincial Governor and Lizares v. Hechanova referred only to administrative liabilities committed during the previous term of an elective official, thus: 1. The first problem we are to grapple with is the legal effect of the reelection of respondent municipal officials. Said respondents would want to impress upon us the fact that in the last general elections of November 14, 1967 the Makati electorate reelected all of them, except that Vice-Mayor Teotimo Gealogo, a councilor prior thereto, was elevated to vice-mayor. These respondents contend that their reelection erected a bar to their removal from office for misconduct committed prior to November 14, 1967. It is to be recalled that the acts averred in the criminal information in Criminal Case 18821 and for which they were convicted allegedly occurred on or about July 26, 1967, or prior to the 1967 elections. They ground their position on Pascual vs. Provincial Board of Nueva Ecija, 106 Phil. 466, and Lizares vs. Hechanova, 17 SCRA 58. A circumspect view leaves us unconvinced of the soundness of respondents' position. The two cases relied upon have laid down the precept that a reelected public officer is no longer amenable to administrative sanctions for acts committed during his former

tenure. But the present case rests on an entirely different factual and legal setting. We are not here confronted with administrative charges to which the two cited cases refer. Here involved is a criminal prosecution under a special statute, the Anti-Graft and Corrupt Practices Act (Republic Act 3019). Then again, on 30 May 1974, in Oliveros v. Villaluz, 21 this Court held: I The first question presented for determination is whether a criminal offense for violation of Republic Act 3019 committed by an elective officer during one term may be the basis of his suspension in a subsequent term in the event of his reelection to office. Petitioner concedes that "the power and authority of respondent judge to continue trying the criminal case against petitioner may not in any way be affected by the fact of petitioner's reelection," but contends that "said respondent's power to preventively suspend petitioner under section 13 of Republic Act 3019 became inefficacious upon petitioner's reelection" arguing that the power of the courts cannot be placed over that of sovereign and supreme people who ordained his return to office. Petitioner's reliance on the loose language used in Pascual vs. Provincial Board of Nueva Ecija that "each term is separate from other terms and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor" is misplaced. The Court has in subsequent cases made it clear that the Pascual

ruling (which dealt with administrative liability) applies exclusively to administrative and not to criminal liability and sanctions. Thus, in Ingco vs. Sanchez the court ruled that the reelection of a public officer for a new term does not in any manner wipe out the criminal liability incurred by him in a previous term. In Luciano vs. Provincial Governor the Court stressed that the cases of Pascual and Lizares are authority for the precept that "a reelected public officer is no longer amenable to administrative sanctions for acts committed during his former tenure" but that as to criminal prosecutions, particularly, for violations of the Anti-Graft and Corrupt Practices Act, as in the case at bar, the same are not barred by reelection of the public officer, since, inter alia, one of the penalties attached to the offense is perpetual disqualification from public office and it "is patently offensive to the objectives and the letter of the Anti-Graft and Corrupt Practice Act . . . that an official may amass wealth thru graft and corrupt practices and thereafter use the same to purchase reelection and thereby launder his evil acts." Punishment for a crime is a vindication for an offense against the State and the body politic. The small segment of the national electorate that constitutes the electorate of the municipality of Antipolo has no power to condone a crime against the public justice of the State and the entire body politic. Reelection to public office is not provided for in Article 89 of the Revised Penal Code as a mode of extinguishing criminal liability incurred by a public officer prior to his reelection. On the contrary, Article 9 of the Anti-Graft Act imposes as one of the penalties in case of conviction perpetual disqualification from public office and Article 30 of the Revised Penal Code declares that such penalty of perpetual disqualification entails "the deprivation of the public offices and employments which

the offender may have held, even if conferred by popular election." It is manifest then, that such condonation of an officer's fault or misconduct during a previous expired term by virtue of his reelection to office for a new term can be deemed to apply only to his administrative and not to his criminal guilt. As succinctly stated in then Solicitor General (now Associate Justice) Felix Q. Antonio's memorandum for the State, "to hold that petitioner's reelection erased his criminal liability would in effect transfer the determination of the criminal culpability of an erring official from the court to which it was lodged by law into the changing and transient whim and caprice of the electorate. This cannot be so, for while his constituents may condone the misdeed of a corrupt official by returning him back to office, a criminal action initiated against the latter can only be heard and tried by a court of justice, his nefarious act having been committed against the very State whose laws he had sworn to faithfully obey and uphold. A contrary rule would erode the very system upon which our government is based, which is one of laws and not of men." Finally, on 21 August 1992, in Aguinaldo v. Santos, stated:
22

enunciated in the above-mentioned cases. If respondent has truly been continuously keeping abreast of legal and jurisprudential development [sic] in the law," it was impossible for him to have missed or misread these cases. What detracts from his claim of assiduity is the fact that he even cited the cases of Oliveros v. Villaluz and Aguinaldo v. Santos in support of his 30 June 1995 order. What is then evident is that respondent either did not thoroughly read these cases or that he simply miscomprehended them. The latter, of course, would only manifest either incompetence, since both cases were written in plain and simple language thereby foreclosing any possibility of misunderstanding or confusion; or deliberate disregard of a long settled doctrine pronounced by this Court. While diligence in keeping up-to-date with the decisions of this Court is a commendable virtue of judges and, of course, members of the Bar comprehending the decisions is a different matter, for it is in that area where one's competence may then be put to the test and proven. Thus, it has been said that a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and aware of well-settled and authoritative doctrines. 23 He should strive for excellence, exceeded only by his passion for truth, to the end that he be the personification of justice and the Rule of Law. 24 Needless to state, respondent was, in this instance, wanting in the desired level of mastery of a revered doctrine on a simple issue. On the other hand, if respondent judge deliberately disregarded the doctrine laid down in Ingco v. Sanchez and reiterated in the succeeding cases of Luciano v. Provincial Governor, Oliveros v.

this Court

Clearly then, the rule is that a public official cannot be removed from administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. Thus far, no ruling to the contrary has even rippled the doctrine

Villaluz and Aguinaldo v. Santos, it may then be said that he simply wished to enjoy the privilege of overruling this Court's doctrinal pronouncements. On this point, and as a reminder to all judges, it is apropos to quote what this Court said sixty-one years ago in People v. Vera: 25 As already observed by this Court in Shioji vs. Harvey [1922], 43 Phil., 333, 337), and reiterated in subsequent cases "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation. Likewise, in Luzon Stevedoring Corp. v. Court of Appeals: 26 The spirit and initiative and independence on the part of men of the robe may at times be commendable, but certainly not when this Court, not once but at least four times, had indicated what the rule should be. We had spoken clearly and unequivocally. There was no ambiguity in what we said. Our meaning was clear and unmistakable. We did take pains to explain why it must be thus. We were within our power in doing so. It would not be too much to expect, then, that tribunals in the lower rungs of the judiciary would at the very least, take notice and yield deference. Justice Laurel had indicated in terms too clear for misinterpretation what is expected of them. Thus: "A becoming modesty of inferior court[s] demands conscious realization of the position that they occupy in the interrelation and operation of the integrated judicial system of the nation." 27 In the constitutional sense, respondent Court is not excluded from such a category. The grave abuse of discretion is

thus manifest. In Caram Resources Corp v. Contreras, 28 this Court affirmed that by tradition and in our system of judicial administration, this Court has the last word on what the law is, and that its decisions applying or interpreting the Constitution and laws form part of this country's legal system. 29 All other courts should then be guided by the decisions of this Court. To judges who find it difficult to do so, Vivo v. Cloribel 30 warned: Now, if a Judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the application of a doctrine promulgated by this Superiority is against his way of reasoning, or against his conscience, he may state his opinion on the matter, but rather than disposing of the case in accordance with his personal views he must first think that it is his duty to apply the law as interpreted by the Highest Court of the Land, and that any deviation from the principle laid down by the latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the litigants. And if despite of what is here said, a Judge, still believes that he cannot follow Our rulings, then he has no other alternative than to place himself in the position that he could properly avoid the duty of having to render judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do that. Finally, the last sentence of Canon 18 of the Canons of Judicial Ethics directs a judge to administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law. That having been said, we cannot but conclude that the recommended penalty of reprimand is not commensurate with the

misdeed committed. A fine of P5,000.00, with a warning that a commission of similar acts in the future shall be dealt with more severely is, at the very least, appropriate, considering respondent is due for compulsory retirement on 29 November 2000 and that this is his first offense. WHEREFORE, for incompetence as a result of ignorance of a settled doctrine interpreting a law, or deliberate disregard of such doctrine in violation of Canon 18 of the Canons of Judicial Ethics, respondent Judge Iluminado C. Monzon is hereby FINED in the amount of Five Thousand Pesos (P5,000.00) and warned that the commission of similar acts in the future shall be dealt with more severely. SO ORDERED. Bellosillo, Vitug, Panganiban and Quisumbing, JJ., concur. G.R. No. 147870 July 31, 2002

case may be dismissed for having become moot and academic.2 Nonetheless, we resolved to pass upon the above-stated issue concerning the application of certain provisions of the Local Government Code of 1991. The undisputed facts are as follows: On August 5, 1999, Solomon B. Maagad, and Renato M. Fernandez, both members of the Sangguniang Bayan of San Vicente, Palawan, filed with the Sangguniang Panlalawigan of Palawan an administrative complaint against respondent Alejandro A. Villapando, then Mayor of San Vicente, Palawan, for abuse of authority and culpable violation of the Constitution.3 Complainants alleged that respondent, on behalf of the municipality, entered into a consultancy agreement with Orlando M. Tiape, a defeated mayoralty candidate in the May 1998 elections. They argue that the consultancy agreement amounted to an appointment to a government position within the prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution. In his answer, respondent countered that he did not appoint Tiape, rather, he merely hired him. He invoked Opinion No. 106, s. 1992, of the Department of Justice dated August 21, 1992, stating that the appointment of a defeated candidate within one year from the election as a consultant does not constitute an appointment to a government office or position as prohibited by the Constitution. On February 1, 2000, the Sangguniang Panlalawigan of Palawan found respondent guilty of the administrative charge and imposed on him the penalty of dismissal from service.4 Respondent appealed to the Office of the President which, on May 29, 2000, affirmed the decision of the Sangguniang Panlalawigan of Palawan.5

RAMIR R. PABLICO, petitioner, vs. ALEJANDRO A. VILLAPANDO, respondent. YNARES-SANTIAGO, J.: May local legislative bodies and/or the Office of the President, on appeal, validly impose the penalty of dismissal from service on erring elective local officials? This purely legal issue was posed in connection with a dispute over the mayoralty seat of San Vicente, Palawan. Considering that the term of the contested office expired on June 30, 2001,1 the present

Pending respondents motion for reconsideration of the decision of the Office of the President, or on June 16, 2000, petitioner Ramir R. Pablico, then Vice-mayor of San Vicente, Palawan, took his oath of office as Municipal Mayor. Consequently, respondent filed with the Regional Trial Court of Palawan a petition for certiorari and prohibition with preliminary injunction and prayer for a temporary restraining order, docketed as SPL Proc. No. 3462.6 The petition, seeks to annul, inter alia, the oath administered to petitioner. The Executive Judge granted a Temporary Restraining Order effective for 72 hours, as a result of which petitioner ceased from discharging the functions of mayor. Meanwhile, the case was raffled to Branch 95 which, on June 23, 2000, denied respondents motion for extension of the 72-hour temporary restraining order.7 Hence, petitioner resumed his assumption of the functions of Mayor of San Vicente, Palawan. On July 4, 2000, respondent instituted a petition for certiorari and prohibition before the Court of Appeals seeking to annul: (1) the May 29, 2000 decision of the Office of the President; (2) the February 1, 2000, decision of the Sangguniang Panlalawigan of Palawan; and (3) the June 23, 2000 order of the Regional Trial Court of Palawan, Branch 95. On March 16, 2001, the Court of Appeals8 declared void the assailed decisions of the Office of the President and the Sangguniang Panlalawigan of Palawan, and ordered petitioner to vacate the Office of Mayor of San Vicente, Palawan.9 A motion for reconsideration was denied on April 23, 2001.10 Hence, the instant petition for review. The pertinent portion of Section 60 of the Local Government Code of 1991 provides:

Section 60. Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: xxx xxx xxx

An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Emphasis supplied) It is clear from the last paragraph of the aforecited provision that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law. Thus, in Salalima, et al. v. Guingona, et al.,11 we held that "[t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60." Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that "(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other." The disciplining authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.12 As held in Salalima,13 this grant to the "disciplining authority" of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and

Regulations. No rule or regulation may alter, amend, or contravene a provision of law, such as the Local Government Code. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author of the Local Government Code of 1991, expressed doubt as to the validity of Article 124 (b), Rule XIX of the implementing rules.14 Verily, the clear legislative intent to make the subject power of removal a judicial prerogative is patent from the deliberations in the Senate quoted as follows: xxx xxx xxx

Senator Saguisag. "OR THE PROPER COURT." Senator Pimentel. Thank you. We are willing to accept that now, Mr. President. Senator Saguisag. It is to be incorporated in the phraseology that will craft to capture the other ideas that have been elevated. xxx xxx x x x.15

Senator Pimentel. This has been reserved, Mr. President, including the issue of whether or not the Department Secretary or the Office of the President can suspend or remove an elective official. Senator Saguisag. For as long as that is open for some later disposition, may I just add the following thought: It seems to me that instead of identifying only the proper regional trial court or the Sandiganbayan, and since we know that in the case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing of this later on, I would like to suggest that we consider replacing the phrase "PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN" simply by "COURTS". Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang Sandiganbayan. Senator Pimentel. "OR THE PROPER COURT."

It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the "disciplining authority" to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991. The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove.16 As explained by the Court in Lacson v. Roque:17 "the abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from a

restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove." WHEREFORE, in view of the foregoing, the instant petition for review is DENIED. SO ORDERED. G.R. No. 177211 March 13, 2009

In an affidavit-complaint dated November 13, 2006, Priscilla Villanueva, the Co-Chair of the Local School Board of Aguilar, accused the respondents of having misappropriated the Special Education Fund (SEF).3 The complainant alleged that the three respondents had used the SEF to purchase speech kit tapes and textbooks without the approval of the Local School Board. She also alleged that the speech kit tapes and textbooks were not received by the recipients, as evidenced by attached certifications of principals and head teachers of different public schools within Aguilar debunking such receipt.4 Villanueva specially pleaded that the respondents be preventively suspended.5 In an order dated January 9, 2007,6 the Ombudsman placed respondents under preventive suspension for a period of four (4) months. The dispositive portion of the order reads: WHEREFORE PREMISES CONSIDERED, it is most respectfully recommended that the request of complainant Priscilla B. Villanueva for the preventive suspension of the respondents be GRANTED. In accordance with Section 24, R.A. No. 6770 and Section 9, Rule III of Administrative Order No. 07, respondents RICARDO EVANGELISTA, CONCEPCION MELICAN and GRACE LIMOS are hereby PREVENTIVELY SUSPENDED during the pendency of the case until termination, but not to exceed the total period of four (4) months, without pay. In case of delay in the disposition of the case due to the fault, negligence or any cause attributable to the respondents, the period of such delay shall not be counted in computing the period of the preventive suspension. In accordance with Section 27, par. (1), R.A. No. 6770, this Order is immediately executory. Notwithstanding any motion, appeal or petition that may be filed by the respondents seeking relief from this

OFFICE OF THE OMBUDSMAN, Petitioner, vs. RICARDO EVANGELISTA, CONCEPCION MELICAN, GRACE LIMOS and the HON. COURT OF APPELAS (Sixteenth Division) Respondents. DECISION TINGA, J.: Respondents Ricardo Evangelista, Concepcion Melican and Grace Limos (respondents) are the mayor, municipal treasurer and accountant respectively, of Aguilar, Pangasinan. In this petition for certiorari and prohibition,1 the Office of the Ombudsman assails the Court of Appeals decision2 dated March 23, 2007 setting aside the Ombudsmans order placing respondents under preventive suspension. The facts follow.

Order, unless otherwise ordered by this Office or by any court of competent jurisdiction, the implementation of this Order shall be interrupted within the period prescribed. The Honorable Secretary of the Interior and Local Government and Department of Finance are hereby directed to implement this Order immediately upon receipt hereof, and to notify this Office within five (5) days from said receipt of the status of said implementation. SO ORDERED.7 The Ombudsman held that the proofs submitted by Villanueva showed strong evidence of guilt, that if duly proven the acts imputed against the respondents would constitute grave misconduct and dishonesty and that their continued stay in office would prejudice the fair and independent disposition of the case against them. The suspension order was served on respondent Evangelista on January 13, 2007. Two (2) days later, the same process was effected on respondent Limos. On January 17, 2007, respondents filed a petition for certiorari with the Court of Appeals assailing the order of the Ombudsman.8 They claimed that they had been denied due process since they were never furnished with a copy of Villanuevas complaint. They also alleged that the unsubstantiated allegations of Villanueva do not constitute sufficient evidence to suspend them. Lastly, they averred that the order had been hastily issued. The Court of Appeals granted the petition and set aside the order of the Ombudsman. The appellate court observed that even a cursory reading of the assailed order reveals that the requirements of R.A. No. 6770 were not complied with. It pointed out that under Section

26(2) of R.A. No. 6770, the Ombudsman is required to inform the accused of the charges; yet, the respondents learned of the charges against them only upon receipt of the suspension order. Rejecting the tenability of the preventive suspension order, the appellate ruled that the documents which could possibly be tampered were beyond the reach of the respondent as they had been kept in the custody of the Commission on Audit. In addition, the Court of Appeals found that there was haste in ordering the suspension since the Ombudsman signed the order prior to the Deputy Ombudsmans recommendation of approval. Aggrieved by the decision of the appellate court, the Ombudsman assails the same before this Court via a petition for review on certiorari. The Ombudsman claims that the order complied with the two requirements in Section 24 of R.A. No. 6770, namely: the evidence of guilt being strong and the charge against such officer or employee involving as it does dishonesty, oppression or grave misconduct or neglect in the performance of duty. Furthermore, as the function of a petition for certiorari is to correct errors of jurisdiction, it can not include a review of the Ombudsmans factual findings. The Ombudsman also asserts that the reliance by the appellate court on Section 26(2) of R.A. No. 6770 is misplaced since a preventive suspension order has to satisfy only the requirements laid down in Section 24 of the same law. Finally, there is ample jurisprudence supporting the legality of a preventive suspension order issued even prior to the hearing of the charges. In their defense, the respondents reiterate that they were denied due process when they were not informed of the charges against them prior to their preventive suspension. The irregularities concerning the SEF imputed to them are baseless, they add. They claim that Villanueva had effected the concoction and circulation of

a bogus Special Prosecutors order finding them guilty of grave misconduct and dishonesty, as well as recommending their dismissal from service. Lastly, they assert that the re-election of Evangelista has rendered the preventive suspension order moot and academic following the doctrine laid down in Mayor Garcia v. Hon. Mojica.9 The petition is meritorious. There is a procedural matter that must first be resolved. Generally, to challenge appellate court decisions reversing rulings of the Ombudsman in administrative cases, the special civil action for certiorari under Rule 65 is not the appropriate recourse. As the Ombudsman assails the appellate courts misapplication of the law, the proper remedy is a petition for review on certiorari under Rule 45. Errors of judgment committed by the appellate court are not correctible by a petition for certiorari.10 Respondents, however, failed to raise this lapse of the Ombudsman as an error. In any event, the issues raised by the Ombudsman merit a full-blown discussion. Thus, the Court opts to adopt a liberal construction of the Rules of Court, treating the petition for certiorari as a petition for review in order to avert a miscarriage of justice,11 especially since the petition for certiorari was filed within the fifteen-(15) day period prescribed for a petition for review under Section 2, Rule 45 of the Rules of Court. Specifically, the petition was filed on April 13, 2007 or exactly 15 days after the Ombudsman received the decision on March 29, 2007. Now, on the substantive aspects. It is the consistent and general policy of the Court not to interfere

with the Office of the Ombudsmans exercise of its investigatory and prosecutory powers.12 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.13 It is within the context of this well-entrenched policy that the Court proceeds to pass upon the validity of the preventive suspension order issued by the Ombudsman in this case.lawphil.net As early as 1995, this Court ruled in Lastimosa v. Vasquez14 and Hagad v. Gozo-Dadole,15 that neither prior notice nor a hearing is required for the issuance of a preventive suspension order. The well-settled doctrine is solidly anchored on the explicit text of the governing law which is Section 24 of R.A. No. 6770. The provision defines the authority of the Ombudsman to preventively suspend government officials and employees. It reads: 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. Clearly, the plain language of the above-quoted provision debunks the appellate courts position that the order meting out preventive suspension may not be issued without prior notice and hearing and before the issues are joined. Under Section 24, two requisites must concur to render the preventive suspension order valid. The first requisite is unique and can be satisfied in only one way. It is that in the judgment of the Ombudsman or the Deputy Ombudsman, the evidence of guilt is strong. The second requisite, however, may be met in three (3) different ways, to wit: (1) that the offense charged involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the charge would warrant removal from the service; or (3) the respondents continued stay in office may prejudice the case filed against him. Undoubtedly, in this case, there is no showing of grave abuse of discretion on the Ombudsmans part in finding the evidence to be strong. In issuing the preventive suspension order, the Ombudsman considered the following: the Local Budget Preparation Form No. 151 indicating the balance of the SEF;16 records from the office of the municipal account;17 a letter dated December 13, 2004 of Villanueva to the Municipal Treasurer requesting clarification of the SEF balance;18 status of appropriation, allotment and obligation of the SEF as of December 31, 2003;19 SEF statement of income and expenses for 2003;20 the letter of the municipal accountant to Mayor Evangelista enumerating the disbursements charged to the SEF which includes disbursements for speech kits and textbooks for 2003-2005;21 certifications dated February 11, 2005 issued by principals and head teachers stating they did not receive speech kits nor text books for 2004-2005.22

The SEF was suddenly reduced to P343,763.30 from P783,937.60 without sufficient justification as revealed by this Courts evaluation of the Status of Appropriation, Allotment and Obligation as well as the Statement of Income and Expense, both certified as correct by respondent Limos no less.23 Moreover, the certifications of numerous head teachers and principals that their schools did not receive the speech kits and textbooks are likewise strong evidence of dishonesty and grave misconduct on the respondents part.24 This is bolstered by the fact that no disbursement was authorized by the local school board. In this case, the second requisite is satisfied by two circumstances. First, the offense definitely involves dishonesty, oppression or grave misconduct or neglect in the performance of duty. Second, the charge would warrant removal from the service. Dishonesty is intentionally making a false statement in any material fact.25 Per the findings of the Ombudsman, there is strong evidence that private respondents made false statements as to the status of the SEF as well as the purchase of speech kits and textbooks. Likewise, a mayor like any other local elective official may be removed from office for dishonesty, oppression, gross negligence or dereliction of duty in accordance with Section 60(c) of the Local Government Code. In regard to respondents Melican and Limos, both are members of the civil service under Section 22, Rule XIV of the Omnibus Rules of Civil Service, dishonesty is a grave offense punishable with dismissal even as a first offense. The penalty of dismissal is reiterated in Civil Service Memorandum Circular No. 30, series of 1989,26 and also in Civil Service Memorandum Circular No. 19, series of 1999.27 Section 9, Rule XIV, Section 9 of the Omnibus Rules and the aforecited circulars

likewise state that the penalty of dismissal from the service shall carry with it cancellation of civil service eligibility, forfeiture of leave credits and retirement benefits, and disqualification from any employment in the government service.281avvphi1 The appellate court strangely juxtaposed the requisites found in Section 26 of R.A. No. 6770 governing inquiries by the Ombudsman with those found in Section 24 of the same law. Section 24 does not require that notice of the charges against the accused must precede an order meting out preventive suspension. While a preventive suspension order may stem from a complaint, the Ombudsman is not required to furnish the respondent with a copy of the complaint prior to ordering preventive suspension. The requisites for the Ombudsman to issue a preventive suspension order are clearly contained in Section 24 of R.A. No. 6770. The appellate court cannot alter these requirements by insisting that the preventive suspension order also meet the requisites found in Section 26 of the same law. The appellate courts stance that there is no longer any reason for the preventive suspension of the respondents as the pertinent documents are with the Commission on Audit likewise has no merit. Respondents argue there is no reason for suspension pendente lite as they could no longer tamper with the evidence. This Court found a similar argument in Bunye v. Escarreal29 devoid of merit. We reiterate the rule that the prosecution must be given the opportunity to gather and prepare the facts for trial under conditions which would ensure non-intervention and noninterference from accused's camp.30 Similar to Section 13 of Republic Act No. 3019, Section 24 of R.A. No. 6770 emphasizes the principle that a public office is a public trust.31 Part and parcel of this principle is a presumption that unless the public officer is suspended, he may frustrate his

prosecution or commit further acts of malfeasance or both.32 Relatedly, the Ombudsman has full discretion to select which evidence it will gather and present, free from any interference. This Court also holds that there was no undue haste on the Ombudsmans part in issuing the preventive suspension order. The fact that the Ombudsman signed the order prior to her Deputy Ombudsmans recommendation does not affect its validity. A review of Section 24 of R.A. No. 6770 reveals that the recommendation of the Deputy Ombudsman is not a condition sine qua non for the Ombudsman to issue a preventive suspension order. A preventive suspension is not a penalty and such an order when issued by the Ombudsman is accorded the highest deference unless the order violates Section 24 of R.A. No. 6770.33 A final note. The preventive suspension order insofar as Mayor Evagelista is concerned has been rendered moot and academic. The Mayor was re-elected and proclaimed during the May 2007 elections as evidenced by the certificate of canvass of votes and proclamation of winning candidates for the Municipality of Aguilar, Pangasinan.34 This Court has consistently ruled that elective officials may not be held administratively liable for misconduct committed during a previous term of office.35 The rationale for this rule is that it is assumed that the electorate returned the official to power with full knowledge of past misconduct and in fact condoned it. It should be stressed that this forgiveness only applies to the administrative liability; the State may still pursue the official in a criminal case. WHEREFORE, the petition is partially GRANTED. The Decision dated March 23, 2007 of the Court of Appeals is REVERSED and

SET ASIDE insofar as it refers to respondents Grace Limos and Concepcion Melican. The preventive suspension order issued by the Ombudsman on said respondents is AFFIRMED. Said Decision of the Court of Appeals is AFFIRMED with respect to respondent Ricardo Evangelista. SO ORDERED. G.R. No. 170626 March 3, 2008

Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya, a local government unit created, organized and existing as such under pertinent laws of the Republic of the Philippines. Respondent Martinez is the incumbent Punong Barangay of the said local government unit.3 On 5 November 2004, Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner through the filing of a verified complaint before the Sangguniang Bayan as the disciplining authority over elective barangay officials pursuant to Section 614 of Rep. Act No. 7160, otherwise known as the Local Government Code. Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against Martinez on 6 December 2004 for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act.5 Petitioner alleged that Martinez committed the following acts: 1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste management project since 2001 particularly the sale of fertilizer derived from composting. 2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken from garbage collection. 3. Using the garbage truck for other purposes like hauling sand and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the year end report even if payments were collected x x x. 4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected

THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS, MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA VISCAYA represented by BARANGAY KAGAWAD JOSE CENEN SANTOS, MARIO BACUD, WALTER FRANCISCO, ROSITA SEBASTIAN, LAURETA CABAUATAN, CECILIA ALINDAYU and MELY SIMANGAN, petitioners, vs. PUNONG BARANGAY SEVERINO MARTINEZ, respondent. DECISION CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Orders dated 20 October 20051 and 30 November 20052 of the Regional Trial Court (trial court), Branch 27, of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its assailed Orders, the trial court ruled that the Sangguniang Bayan of Bayombong, Neuva Vizcaya (Sangguniang Bayan), exceeded its jurisdiction when it imposed upon respondent Severino Martinez the administrative penalty of removal from office. Petitioner Sangguniang Barangay is the legislative body of

as income from its Sold Waste Management Project. x x x. 5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. x x x. 6. That several attempts to discuss said problem during sessions were all in vain because respondent declined to discuss it and would adjourn the session.x x x.6 Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December 2004, Martinez was declared by the Sangguniang Bayan as in default. Pending the administrative proceedings, Martinez was placed under preventive suspension for 60 days or until 8 August 2005.7 On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of removal from office.8 The Decision dated 28 July 2005 was conveyed to the Municipal Mayor of Bayombong, Nueva Ecija, Severino Bagasao, for its implementation. On 3 August 2005, Municial Mayor Bagasao issued a Memorandum, wherein he stated that the Sanggunaing Bayan is not empowered to order Martinezs removal from service. However, the Decision remains valid until reversed and must be executed by him. For the meantime, he ordered the indefinite suspension of Martinez since the period of appeal had not yet lapsed.9 The dispositive portion of the said Memorandum states that:10 The FOREGOING considered come AUGUST 8, 2005, respondent

SEVERINO D. MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions of the Office of the Punong Barangay of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN SANTOS to CONTINUE assuming and discharging the functions of the said office in ACTING CAPACITY pursuant to the provisions of Sections 67 and 68 of Republic Act No. 7160. On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary Injunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision dated 28 July 2005 of the Sangguniang Bayan. This case was docketed as Special Civil Action No. 6727, which was initially heard by Branch 28, but later raffled to Branch 27 of the trial court.11 On 20 October 2005, the trial court issued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan removing Martinez from service is void. As a consequence, Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void order. The trial court further ruled that Martinez properly availed himself of the remedy of Special Civil Action, where the order assailed was a patent nullity.12 On 10 November 2005, petitioner filed a Motion for Reconsideration13 of the trial courts Order dated 10 October 2005. The trial court denied the said motion in another Order dated 30

November 2005.14 Hence, the present petition was filed. Although Martinezs term as Punong Baranggay expired upon the holding of the 29 October 2007 Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, the Court will nevertheless settle a legal question that is capable of repetition yet evading review.15 The pivotal issue in this case is whether or not the Sangguniang Bayan may remove Martinez, an elective local official, from office. The pertinent legal provisions and cases decided by this Court firmly establish that the Sanggunaing Bayan is not empowered to do so. Section 60 of the Local Government Code conferred upon the courts the power to remove elective local officials from office: Section 60. Grounds for Disciplinary Actions.An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: x x x x. An elective local official may be removed from office on the grounds enumerated above by order of the proper court. (Emphasis provided.) During the deliberations of the Senate on the Local Government Code,16 the legislative intent to confine to the courts, i.e., regional

trial courts, the Sandiganbayan and the appellate courts, jurisdiction over cases involving the removal of elective local officials was evident: Senator Pimentel. This has been reserved, Mr. President, including the issue of whether or not the Department Secretary or the Office of the President can suspend or remove an elective official. Senator Saguisag. For as long as that is open for some later disposition, may I just add the following thought: It seems to me that instead of identifying only the proper regional trial court or the Sandiganbayan, and since we know that in the case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing of this later on, I would like to suggest that we consider replacing the phrase "PROPER REGIONAL TRIAL COURT OR THE SANDIGANBAYAN" simply by "COURTS." Kasi po, maaaring sabihin nila na mali iyong regional trial court o ang Sandiganbayan. Senator Pimentel. "OR THE PROPER COURT." Senator Saguisag. "OR THE PROPER COURT." Senator Pimentel. Thank you. We are willing to accept that now, Mr. President. Senator Saguisag. It is to be incorporated in the phraseology that we will craft to capture the other ideas that have been elevated. (Emphasis provided.) In Salalima v. Guingona, Jr.,17 the Court en banc categorically ruled that the Office of the President is without any power to remove

elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code. It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991, which provided that: Article 125. Grounds for Disciplinary Actions. x x x. x x x x. (b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other. The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and Regulations of the Local Government Code exceeded its authority when it granted to the "disciplining authority" the power to remove elective officials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, the Sangguniang Bayan is not vested with the power to remove Martinez. Petitioner contends that administrative cases involving elective barangay officials may be filed with, heard and decided by the Sangguniang Panlungsod or Sangguniang Bayan concerned, which can, thereafter, impose a penalty of removal from office. It further claims that the courts are merely tasked with issuing the order of removal, after the Sangguniang Panlungsod or Sangguniang Bayan finds that a penalty of removal is warranted.18 The aforementioned position put forward by the petitioner would run

counter to the rationale for making the removal of elective officials an exclusive judicial prerogative. In Pablico v. Villapando,19 the court declared that: It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (sic 125)20 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the "disciplining authority" to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991. The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. (Emphasis supplied.) The rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority. Vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision, would still not free the resolution of the case from the capriciousness or partisanship of the disciplining authority. Thus, the petitioners interpretation would defeat the clear intent of the

law. Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable breach of the doctrine on separation of powers, thus placing the courts under the orders of the legislative bodies of local governments. The courts would be stripped of their power of review, and their discretion in imposing the extreme penalty of removal from office is thus left to be exercised by political factions which stand to benefit from the removal from office of the local elective official concerned, the very evil which Congress sought to avoid when it enacted Section 60 of the Local Government Code. Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court, where court rules of procedure and evidence can ensure impartiality and fairness and protect against political maneuverings. Elevating the removal of an elective local official from office from an administrative case to a court case may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the electorate of the services of the official for whom they voted. As the law stands, Section 61 of the Local Government Code provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts allegedly committed by the

barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court. Petitioner alleged that an interpretation which gives the judiciary the power to remove local elective officials violates the doctrine of separation of powers. This allegation runs contrary to the 1987 Constitution itself, as well as jurisprudence. The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms of duty.21 Paragraph 2, Section 1, Article VIII of the 1987 Constitution, provides that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis provided.) The doctrine of separation of powers is not absolute in its application; rather, it should be applied in accordance with the principle of checks and balances. The removal from office of

elective officials must not be tainted with partisan politics and used to defeat the will of the voting public. Congress itself saw it fit to vest that power in a more impartial tribunal, the court. Furthermore, the local government units are not deprived of the right to discipline local elective officials; rather, they are prevented from imposing the extreme penalty of dismissal. Petitioner questions the Decision dated 20 October 2005 of the trial court for allowing the petition filed before it as an exception to the doctrine of exhaustion of administrative remedies. If, indeed, the Sangguniang Bayan had no power to remove Martinez from office, then Martinez should have sought recourse from the Sangguniang Panlalawigan. This Court upholds the ruling of the trial court. The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. Nonobservance of the doctrine results in lack of a cause of action, which is one of the grounds allowed by the Rules of Court for the dismissal of the complaint.22 The doctrine of exhaustion of administrative remedies, which is based on sound public policy and practical consideration, is not inflexible. There are instances when it may be dispensed with and judicial action may be validly resorted to immediately. Among these exceptions are: 1) where there is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is relatively small as to make the rule impractical and oppressive; 5)

where the question raised is purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where the controverted acts violate due process; 9) when the issue of non-exhaustion of administrative remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy; 11) when strong public interest is involved; and 13) in quo warranto proceedings.23 As a general rule, no recourse to courts can be had until all administrative remedies have been exhausted. However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial. In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order to annul the said Order of the Sangguniang Bayan.24 Thus, his direct recourse to regular courts of justice was justified. In addition, this Court in Castro v. Gloria25 declared that where the case involves only legal questions, the litigant need not exhaust all administrative remedies before such judicial relief can be sought. The reason behind providing an exception to the rule on exhaustion of administrative remedies is that issues of law cannot be resolved with finality by the administrative officer. Appeal to the administrative officer would only be an exercise in futility. A legal question is properly addressed to a regular court of justice rather than to an administrative body.26

In the present case, Martinez raised before the trial court the sole issue of whether the Sangguniang Bayan has jurisdiction over a case involving the removal of a local elective official from office. 27 In Martinezs petition before the trial court, only a legal question was raised, one that will ultimately be resolved by the courts. Hence, appeal to the administrative officer concerned would only be circuitous and, therefore, should no longer be required before judicial relief can be sought. IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of the Bayombong RTC in Special Civil Action No. 6727 is AFFIRMED. SO ORDERED. Ynares-Santiago, Chairperson, Austria-Martinez,, Nachura, Reyes, JJ., concur G.R. No. 179333 August 3, 2010

The factual antecedents, summarized by the CA, follow: [Respondent Pedro B. Bo], since 1993, has applied with the Department of Environment and Natural Resources Community Environment and Natural Resources Office (DENR-CENRO) Legazpi City for the lease of a 10,000 square meter foreshore lot in Palale Beach, Bgy. San Isidro, Ilawod. Pending his application, he introduced improvements in the area necessary in putting up and in running a beach resort, secured DENR approval of his survey plan, obtained a barangay permit to operate his business, and paid the corresponding yearly occupation fees over the public land. The DENR in the meantime conducted an appraisal report on the status of the foreshore lot. But a month before the DENR released its approval in April 2003 for the bidding of the lease covering the public land Col. Bo was applying for, his cottage and his coconut trees were destroyed. He had this occurrence entered in the police blotter in the Malilipot Municipal Police Station, and named Bgy. Captain Bello and Kgd. Bisona as those who led in the removal of his improvements to give way for the construction of twenty-two cottages, and that this was done in defiance of the directive of the DENR representative not to push through with this plan because they had no right to do so. The bidding that was scheduled for June 2003 for the lease of the foreshore land never took place because the Sangguniang Barangay of San Isidro, Ilawod opposed Col. Bos lease application before the DENR, reasoning that the land should be used instead for barangay projects and not to benefit private individuals. The protest was then referred to the DENR-Provincial Environment and Natural Resources Office (PENRO) for resolution. Land

JOEPHIL C. BIEN, Petitioner, vs. PEDRO B. BO, Respondent. DECISION NACHURA, J.: Before us is a petition for review on certiorari challenging the Court of Appeals (CA) decision in CA-G.R SP No. 928741 which affirmed in toto the decision of the Deputy Ombudsman for Luzon in OMB-LA-04-0488-H finding petitioner administratively liable for Abuse of Authority.2

Management Officer (LMO) Santiago Olfindo took hold of the dispute and on October 21, 2003 conducted an ocular inspection on the public land. He noted in his findings the list of improvements as of that time and the owners of the cottages located therein: "At the time of the ocular inspection, the actual improvements found on the area are reflected on a matrix hereto attached. Some of the owners of the cottages constructed on the area covered by the application of Applicant-Respondent [Bo] were not present during the inspection but were identified by the Barangay Officials who were present on the premises. From the attached matrix it must be noted that almost all of the Barangay Officials had their own cottages and that the total cost of all improvements on the area subject of this case amounts to Four Hundred Seventy Nine (sic) (P479,000.00) Pesos. During the field inspection, the improvements made by the Applicant-Respondent [Bo] as reflected in the Appraisal Report was not anymore around. The area occupied by his improvement, (Cottage) is already occupied by a certain Carmelo Tuyo and Jimeno Balana. xxx xxx xxx

As regards Col. Bos complaint before the Ombudsman, he pinpointed not only the barangay officials of San Isidro, Ilawod as the culprits responsible for the destruction of his cottage and plantation but also [petitioner] Joephil Bien. Col. Bo stressed that all of them connived in doing this injustice to him in order that respondents [including herein petitioner] may be able to construct their own private cottages for their own benefit. Defending himself separately from his co-respondents, [petitioner] Joephil Bien maintained his innocence and vehemently denied ownership of the cottage. To prove the latter, he averred that it is not he who owns the cottage but a certain Renaldo Belir. He affixed as evidence in his position paper the affidavit of Renaldo Belir affirming that it is he and not Bgy. Captain Bien who constructed the cottage. As his additional proof, he included an official receipt issued to Belir as payment for the barangay permit.3 As previously adverted to, the Deputy Ombudsman for Luzon found all respondents therein, including herein petitioner Bien, administratively liable for Abuse of Authority, to wit: WHEREFORE, premises considered, it is hereby respectfully recommended that respondents JULIO BELLO, JOEL BISONA, ROLANDO VOLANTE, MARTINEZ BEA, RICARDO BILAN, RENATO BARIAS, HERBES BOTIS, MILAGROS BALANA, and JOEPHIL BIEN, be meted out the penalty of three (3) months suspension without pay for Abuse of Authority. SO RESOLVED.4 Objecting to the penalty meted out by the Deputy Obmudsman, petitioner appealed to the CA which ruled, thus:

The matrix referred to by LMO Olfindo included [petitioner] Joephil Bien as one of the owners of the cottages built on Palale Beach on March 2003, and said report of LMO Olfindo became the DENR Regional Directors basis for denying the Sangguniang Barangays protest, finding that the cottages found therein were privately owned and illegally constructed, i.e., without securing the DENRs permit. Thus, the bidding for the public lease of a portion of Palale Beach was upheld.

WHEREFORE, the instant petition is DENIED for lack of merit. The September 5, 2005 Decision and November 23, 2005 Order of the Deputy Ombudsman for Luzon anent OMB-L-A-04-0488-H are AFFIRMED in toto. SO ORDERED. 5 Hence, this appeal by petitioner hinging on the singular issue of whether he is liable for abuse of authority. Petitioner seeks to evade liability on the following grounds: 1. Respondent failed to prove petitioners participation in the destruction of the improvements introduced by the former on the subject property; 2. Corollary thereto, respondent failed to establish petitioners ownership of one of the twenty-two (22) cottages on the subject property found by the DENR to have been illegally erected; and 3. Petitioner is not a barangay official of San Isidro Ilawod; thus, he has no authority and jurisdiction over the subject property. We are in complete accord with the Deputy Ombudsman for Luzons and the appellate courts uniform rulings. Petitioners participation in the destruction of the improvements on the subject property introduced by the respondent, as well as petitioners ownership of one of the cottages subsequently erected therein, were supported by substantial evidence.

In administrative cases, the requisite proof is substantial evidence, i.e., that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.6 In the case at bar, substantial evidence consisted in the findings of the DENRPENRO identifying petitioner as one of the owners of the twentytwo (22) cottages illegally erected on the subject property covered by a lease application of respondent. The Final Report of the DENR-PENRO narrates the circumstances surrounding the conflict between respondent and the barangay officials of San Isidro Ilawod, concerning respondents application for lease of the subject property: On May 11, 1993, Applicant-Respondent filed with the DENRCENRO, Legazpi a foreshore lease application and designated as F.L.A. No. 050509-01. After six (6) years of follow-up by ApplicantRespondent on the actions taken on his application, it was on April 28, 2003 that the Notice to Lease Public Land was ultimately released for posting in the barangay where the applied area is located. Instead of having it posted by the Barangay Officials of San Isidro Ilawod, Malilipot, Albay, they refused its posting and consequently filed their opposition on June 4, 2003, just five (5) days before the scheduled bidding of the applied area.7 Moreover, the DENR Regional Executive Director categorically found that the barangay officials, respondents in the proceedings before the Deputy Ombudsman for Luzon, including herein petitioner Bien, illegally erected cottages on the subject property: The Sangguniang Barangay of San Isidro Ilawod, cannot, in the guise of resolutions assume the authority and task that pertain solely to the DENR as regards the administration and management of the subject foreshore land. The introduction of improvements on

the premises without the necessary permit from the DENR is illegal which we cannot countenance.81avvphi1 More importantly, the CA found that the evidence presented by respondent buttressed his positive and consistent claim that petitioner connived with the barangay officials of San Isidro Ilawod to destroy the improvements he introduced on the subject property so that these officials could construct their own cottages thereon. Specifically, the appellate court proclaimed, thus: The result of the DENRs field inspection that revealed petitioner as one who owned one of the 22 cottages that dislodged Col. Bos cottage and coconut trees is what Bgy. Capt. Bien is pouncing on, for a confirmation in this administrative case of his alleged ownership of the cottage in Palale Beach will buttress Col. Bos positive and consistent claim, as inferred from all his pleadings before the Ombudsman, that there was connivance among the[rein] respondents in removing his improvements so that they may put up their own cottages. xxxx. Renaldo Belir declared in his affidavit that he constructed his cottage in Palale Beach in May 2003, but the subject here concerns the 22 cottages that were built immediately after the destruction of Col. Bos cottage and coconut plantations. As against that of LMO Olfindos report which listed those 22 cottages built in March 2003 [showing] that one of these cottages is ostensibly owned by petitioner, the information which was gathered from the barangay officers themselves of San Isidro Ilawod who accompanied LMO Olfindo during the ocular inspection, the proof that petitioner submitted to substantiate his defense that another person owns the cottage is weak.9

From the foregoing separate factual findings, respondent has sufficiently established that petitioner Bien was one of the barangay officials, albeit from a different barangay, who participated in the destruction of respondents cottage and coconut trees built and planted on the subject property. Petitioner further makes capital of the fact that he is not a barangay official of San Isidro Ilawod; necessarily, for him to be liable for abuse of authority, the exercise of power should have been done in the discharge of his office. As the CA did, we likewise do not agree. Suffice it to say that petitioners status as ABC President is not disputed. We concur with the CAs following disquisition: His line of reasoning may be convincing had this been the only circumstance. But it must be taken into consideration that he is the ABC President to whom the barangay officials show deference to. Also, as correctly held by the Ombudsman, he is the ex-officio member of the Sangguniang Bayan which is significantly mentioned to be the legislative body with the power to review barangay ordinances and with the authority to discipline barangay officials. The presence of his cottage as well as that of the other barangay officials in San Isidro Ilawod in Palale Beach showed an apparent connivance among them. It then follows that his participation as a higher authority had put a semblance of legality over the removal of complainants improvements in order that they may protect their personal interests over the foreshore lot. In this sense, there shows his misdemeanor as a public officer, an abuse of his authority.10 With the foregoing discussion, we see no need to dispose of the peripheral issues raised by petitioner.

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R SP No. 92874 and the Decision and Order of the Deputy Ombudsman for Luzon in OMBL-A-04-0488-H are AFFIRMED. Costs against petitioner. SO ORDERED.

several irregular and anomalous transactions in their official capacity. These transactions pertained to the handling of the trust fund of the Municipality of Carmen, Cebu in the Central Visayas Water and Sanitation Project. On 7 March 2001, the Office of the Deputy Ombudsman for Visayas directed the parties to submit their counter-affidavits. In their Joint Counter-Affidavit dated 9 May 2001, Villamor and Barriga denied Puas allegations. In a Decision dated 28 August 2002,5 the Office of the Deputy Ombudsman for Visayas found Barriga guilty of misconduct and imposed on her the penalty of six months suspension from the service. In the same decision, the case against Villamor and Bontia were dismissed for being moot and academic. At the time, Villamor was no longer the incumbent mayor of Carmen, Cebu but the municipalitys elected vice-mayor and Bontia had already been dismissed from government service pursuant to a final decision of the Office of the Ombudsman dated 19 August 1998.6 Upon review, petitioner Office of the Ombudsman modified the decision and found Barriga guilty of conduct prejudicial to the best interest of the service and imposed on her the penalty of suspension for one year.7 Barriga filed a motion for reconsideration which petitioner denied in an Order dated 2 April 2003.8 Later, in an Order dated 13 November 2002,9 petitioner directed the municipal mayor of Carmen, Cebu to implement the decision dated 28 August 2002.

G.R. No. 172224

January 26, 2011

OFFICE OF THE OMBUDSMAN, Petitioner, vs. COURT OF APPEALS and DINAH C. BARRIGA, Respondents. DECISION CARPIO, J.: The Case Before the Court is a petition for certiorari1 assailing the Resolutions dated 20 February 20062 and 16 June 20053 of the Court of Appeals (CA) in CA-G.R. SP No. 00079. The Facts Sometime in 2000, Sonia Q. Pua (Pua), a Municipal Councilor of Carmen, Cebu, filed a complaint4 with the Office of the Deputy Ombudsman for Visayas. Pua alleged that Virgilio E. Villamor (Villamor), Municipal Mayor; Bebelia C. Bontia (Bontia), Municipal Treasurer; and respondent Dinah C. Barriga (Barriga), Municipal Accountant, all public officials of Carmen, Cebu, entered into

Barriga filed a petition for review with the CA, docketed as CA G.R. SP No. 76958. On 7 July 2003, the petition was denied for lack of merit.10 Barriga then elevated the case to the Supreme Court, docketed as G.R. No. 160402. In a Resolution dated 14 January 2004, this Court denied the petition. Barriga filed a motion for reconsideration which this Court denied in a Resolution dated 17 March 2004. Barriga filed a second motion for reconsideration which this Court again denied in a Resolution dated 7 July 2004. After a month, in a letter dated 10 August 2004, petitioner, through the Office of the Deputy Ombudsman for Visayas, again directed the municipal mayor of Carmen, Cebu to implement the Order dated 13 November 2002. In a letter11 dated 16 August 2004 addressed to petitioner, Barriga made a request that the implementation of the penalty of one-year suspension be held in abeyance pending the issuance of the entry of judgment by this Court in G.R. No. 160402. The request was denied by petitioner in a letter dated 3 September 2004.12 Barriga then challenged the said letters of petitioner with the CA through a petition for review.13 Meanwhile, the Supreme Court issued the entry of judgment in G.R. No. 160402 on 28 October 2004. In addition, the municipal mayor of Carmen, Cebu implemented Barrigas suspension from service through an Order dated 2 November 2004.14 Thereafter, in a Decision dated 18 March 2005, the CA denied Barrigas appeal. Barriga filed a motion for reconsideration. In a Resolution dated 16 June 2005, the CA modified its earlier decision

and declared as null and void the orders of petitioner in the letters dated 10 August 2004 and 3 September 2004. The CA explained that the acts of petitioner went beyond mere recommendation but rather imposed upon the mayor to implement the order of suspension which run counter to its authority. The appellate court said that the immediate implementation of petitioners Order dated 13 November 2002 was premature pending resolution of the appeal. Since Republic Act No. 6770 or the Ombudsman Act of 1989 gives parties the right to appeal then such right also generally carries with it the right to stay these decisions pending appeal. Thus, the CA concluded that the acts of petitioner cannot be permitted nor tolerated. The dispositive portion of the resolution states: WHEREFORE, the decision in the instant case is MODIFIED in that the Orders of the Office of the Ombudsman dated August 10, 2004 and September 3, 2004 in so far as it directed the implementation of the suspension of petitioner is declared null and void having been made beyond its authority and prematurely. Consequently, the letter of the municipal mayor of Carmen, Cebu dated November 2, 2004 implementing said order is also nullified. Petitioners immediate reinstatement is in order.1avvphi1 No pronouncement as to costs. SO ORDERED.15 Pursuant to the CAs Resolution dated 16 June 2005, the municipal mayor of Carmen, Cebu reinstated Barriga as municipal accountant in Memorandum No. 2005-99 dated 21 June 2005.16 Petitioner filed a Motion for Reconsideration and raised the issue of finality of the Ombudsmans Decision dated 28 August 2002. The motion was denied by the CA in a Resolution dated 20 February

2006. Hence, this petition. The Issue The main issue is whether the Court of Appeals gravely abused its discretion in nullifying the orders of the Office of the Ombudsman to the municipal mayor of Carmen, Cebu for the immediate implementation of the penalty of suspension from service of respondent Barriga even though the case was pending on appeal. The Courts Ruling The petition is meritorious. Petitioner submits that the Office of the Ombudsman is possessed with jurisdiction to entertain an administrative complaint against a public official and if found guilty, has the authority to impose a penalty and implement the decision. Petitioner explains that the implementation of administrative sanctions over erring public officials is not merely advisory in nature but is actually mandatory within the bounds of law. It is absurd for the Ombudsman to only recommend a penalty to a head of office, in this case, a municipal mayor, since political independence is the element that provides integrity to its quasi-judicial findings. Petitioner adds that a municipal mayor has no authority to adopt or reject petitioners decision, as if in review, where no such recourse is provided by law. Also, petitioner insists that the Ombudsmans Decision dated 28 August 2002 already reached finality after this Court in G.R. No. 160402 denied Barrigas second motion for reconsideration in a

Resolution dated 7 July 2004. Thus, the implementation of the decision finding Barrigas administrative liability and the imposition of the corresponding disciplinary penalty should follow as a matter of course. Section 7, Rule III of Administrative Order No. 7,17 as amended by Administrative Order No. 17,18 states: Section 7. Finality and execution of decision.- Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final, executory and unappealable. In all other cases, the decision may be appealed to the Court of Appeals on a verified petition for review under the requirements and conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the Decision or Order denying the Motion for Reconsideration. An appeal shall not stop the decision from being executory. In case the penalty is suspension or removal and the respondent wins such appeal, he shall be considered as having been under preventive suspension and shall be paid the salary and such other emoluments that he did not receive by reason of the suspension or removal. A decision of the Office of the Ombudsman in administrative cases shall be executed as a matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly enforced and properly implemented. The refusal or failure by any officer without just cause to comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or censure shall be

a ground for disciplinary action against said officer. (Emphasis supplied) It is clear from the provision that when a public official has been found guilty of an administrative charge by the Office of the Ombudsman and the penalty imposed is suspension for more than a month, just like in the present case, an appeal may be made to the CA. However, such appeal shall not stop the decision from being executory and the implementation of the decision follows as a matter of course. Here, petitioners modified Decision dated 28 August 2002 was not only appealed by Barriga to the CA but also reached the Supreme Court. The appeal to the CA was denied in a decision dated 7 July 2003. In this Court, the appeal was denied in a Resolution dated 14 January 2004. The motions for reconsideration were likewise denied in the Resolutions dated 17 March 2004 and 7 July 2004. The decision became final on 28 October 2004. Petitioner ordered the municipal mayor of Carmen, Cebu to implement the decision suspending Barriga from government service two times, one through a letter dated 10 August 2004 and the other in a letter dated 3 September 2004 denying Barrigas request for the suspension of the penalty until the date of finality of the case. However, Barriga, in order to delay the implementation of her suspension from service elevated the case once again to the CA. The CA in rendering a favorable decision in favor of Barriga nullified the Ombudsmans orders from implementing its decision. The CA is incorrect. The provision in the Rules of Procedure of the Office of the Ombudsman is clear that an appeal by a public official from a decision meted out by the Ombudsman shall not stop the

decision from being executory. In Office of the Ombudsman v. Court of Appeals and Macabulos,19 we held that decisions of the Ombudsman are immediately executory even pending appeal in the CA. As explained by this Court in the case of In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, Secretary of DPWH,20 this provision in the rules of the Ombudsman is similar to that provided under Section 47 of the Uniform Rules on Administrative Cases in the Civil Service.21 Thus, the Ombudsmans order imposing on Barriga the penalty of suspension from office for one year without pay is immediately executory even pending appeal in the Court of Appeals. WHEREFORE, we GRANT the petition. We SET ASIDE the Resolutions dated 20 February 2006 and 16 June 2005 of the Court of Appeals in CA-G.R. SP No. 00079. We REINSTATE the modified Order dated 28 August 2002 of the Office of the Ombudsman suspending Dinah C. Barriga from government service for one year without pay. Since Dinah C. Barriga already partially served her suspension from government service, the Municipal Mayor of Carmen, Cebu is DIRECTED to implement with dispatch the remaining balance of number of days of suspension from office not yet served by Dinah C. Barriga pursuant to Orders dated 10 August 2004 and 3 September 2004 of the Office of the Ombudsman in OMB-VIS-ADM-2000-0968. SO ORDERED. ANTONIO T. CARPIO Associate Justice