G.R. No.

94010 December 2, 1991

FELIPE EVARDONE, petitioner,

vs.
COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN and
NOEL A. NIVAL, respondents.

G.R. No. 95063 December 2, 1991

ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL,

petitioners,
vs.
COMMISSION ON ELECTIONS and MAYOR FELIPE EVARDONE, respondents.

Zosimo G. Alegre for Felipe Evardone.

Elmer C. Solidon for petitioners in G.R. No. 95063.

PADILLA, J.:

These two (2) consolidated petitions have their origin in en banc Resolution No. 90-
0557 issued by the respondent Commission on Elections (COMELEC) dated 20 June
1990 which approved the recommendation of the Election Registrar of Sulat,
Eastern Samar to hold and conduct the signing of the petition for recall of the
incumbent Mayor of Sulat, Eastern Samar, on 14 July 1990.

G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate
issuance of a restraining order and/or writ of preliminary injunction to restrain the
holding of the signing of the petition for recall on 14 July 1990.

G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc
Resolution No. 90-0660 of the respondent COMELEC nullifying the signing process
held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor Evardone of said
municipality and en banc Resolution No. 90-0777 denying petitioners' motion for
reconsideration, on the basis of the temporary restraining order issued by this Court
on 12 July 1990 in G.R. No. 94010.

Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the

Municipality of Sulat, Eastern Samar, having been elected to the position during the
1988 local elections. He assumed office immediately after proclamation.
On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival
(hereinafter referred to as Apelado, et al.) filed a petition for the recall of Evardone
with the Office of the Local Election Registrar, Municipality of Sulat.

In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No.
90-0557, approving the recommendation of Mr. Vedasto B. Sumbilla, Election
Registrar of Sulat, Eastern Samar, to hold on 14 July 1990 the signing of the petition
for recall against incumbent Mayor Evardone of the said Municipality.

On 10 July 1990, Evardone filed before this Court a petition for prohibition with
urgent prayer for immediate issuance of restraining order and/or writ of
preliminary injunction, which was docketed as G.R. No. 94010.

On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO),
effective immediately and continuing until further orders from the Court, ordering
the respondents to cease and desist from holding the signing of the petition for
recall on 14 July 1990, pursuant to respondent COMELEC's Resolution No. 2272
dated 23 May 1990.

On the same day (12 July 1990), the notice of TRO was received by the Central Office
of the respondent COMELEC. But it was only on 15 July 1990 that the field agent of
the respondent COMELEC received the telegraphic notice of the TRO—a day after
the completion of the signing process sought to be temporarily stopped by the TRO.

In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent

COMELEC nullified the signing process held in Sulat, Eastern Samar for being
violative of the order (the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a
motion for reconsideration and on 29 August 1990, the respondent COMELEC
denied said motion holding that:

. . . The critical date to consider is the service or notice of the Restraining Order on
12 July 1990 upon the principal i.e. the Commission on Election, and not upon its
agent in the field. 1

Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to
set aside en banc Resolution No. 90-0660 of respondent COMELEC.

In G.R. No. 94010, Evardone contends that:

I. The COMELEC committed grave abuse of discretion in approving the

recommendation of the Election Registrar of Sulat, Eastern Samar to hold the
signing of the petition for recall without giving petitioner his day in court.

II. The COMELEC likewise committed grave abuse of discretion amounting to

lack or excess of jurisdiction in promulgating Resolution No. 2272 on May 22, 1990
which is null and void for being unconstitutional. 2
In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing
process of the petition for recall held on 14 July 1990 has been rendered nugatory
by the TRO issued by this court in G.R. No. 94010 dated 12 July 1990 but received by
the COMELEC field agent only on 15 July 1990.

The principal issue for resolution by the Court is the constitutionality of Resolution
No. 2272 promulgated by respondent COMELEC on 23 May 1990 by virtue of its
powers under the Constitution and Batas Pambansa Blg. 337 (Local Government
Code). The resolution embodies the general rules and regulations on the recall of
elective provincial, city and municipal officials.

Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas
Pambansa Blg. 337 in favor of one to be enacted by Congress. Said Section 3
provides:

Sec. 3. The Congress shall enact a local government code 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 local officials, and all other
matters relating to the organization operation of the local units.

Since there was, during the period material to this case, no local government code
enacted by Congress after the effectivity of the 1987 Constitution nor any law for
that matter on the subject of recall of elected government officials, Evardone
contends that there is no basis for COMELEC Resolution No. 2272 and that the recall
proceedings in the case at bar is premature.

The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:

The constitutional provision does not refer only to a local government code which is
in futurum but also in esse. It merely sets forth the guidelines which Congress will
consider in amending the provisions of the present Local Government Code.
Pending the enactment of the amendatory law, the existing Local Government Code
remains operative. The adoption of the 1987 Constitution did not abrogate the
provisions of BP No. 337, unless a certain provision thereof is clearly irreconciliable
with the provisions of the 1987 Constitution. In this case, Sections 54 to 59 of Batas
Pambansa No. 337 are not inconsistent with the provisions of the Constitution.
Hence, they are operative. 3

We find the contention of the respondent COMELEC meritorious.

Article XVIII, Section 3 of the 1987 Constitution express provides that all existing
laws not inconsistent with the 1987 Constitution shall remain operative, until
amended, repealed or revoked. Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991,
specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But
the Local Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to
the present case. Prior to the enactment of the new Local Government Code, the
effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the
1986 Constitutional Commission. Thus—

MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code
under the report of the Committee on Amendments and Transitory Provisions, the
former Local Government Code, which is Batas Pambansa Blg. 337 shall continue to
be effective until repealed by the Congress of the Philippines. 4

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall
of local elective officials. Section 59 expressly authorizes the respondent COMELEC
to conduct and supervise the process of and election on recall and in the exercise of
such powers, promulgate the necessary rules and regulations.

The Election Code contains no special provisions on the manner of conducting

elections for the recall of a local official. Any such election shall be conducted in the
manner and under the rules on special elections, unless otherwise provided by law
or rule of the COMELEC. 5 Thus, pursuant to the rule-making power vested in
respondent COMELEC, it promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is

valid and constitutional. Consequently, the respondent COMELEC had the authority
to approve the petition for recall and set the date for the signing of said petition.

The next issue for resolution is whether or not the TRO issued by this Court
rendered nugatory the signing process of the petition for recall held pursuant to
Resolution No. 2272.

In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the
Philippines, et al., 6 this Court held:

. . . What is sought in this suit is to enjoin respondents particularly respondent

Commission from implementing Batas Pambansa Blg. 86, specifically "from
conducting, holding and undertaking the plebiscite provided for in said act." The
petition was filed on December 5, 1980. There was a plea for a restraining order, but
Proclamation No. 2034 fixing the date for such plebiscite on December 6, 1980 had
been issued as far as back as November 11, 1980. Due this delay in to this suit,
attributable solely to petitioners, there was no time even to consider such a plea.
The plebiscite was duly held. The certificate of canvass and proclamation of the
result disclosed that out of 2,409 total votes cast in such plebiscite, 2,368 votes were
cast in favor of the creation of the new municipality, which, according to the statute,
will be named municipality of Aguinaldo. There were only 40 votes cast against. As a
result, such municipality was created. There is no turning back the clock. The moot
and academic character of this petition is thus apparent.

In the present case, the records show that Evardone knew of the Notice of Recall
filed by Apelado, et al. on or about 21 February 1990 as evidenced by the Registry
Return Receipt; yet, he was not vigilant in following up and determining the
outcome of such notice. Evardone alleges that it was only on or about 3 July 1990
that he came to know about the Resolution of respondent COMELEC setting the
signing of the petition for recall on 14 July 1990. But despite his urgent prayer for
the issuance of a TRO, Evardone filed the petition for prohibition only on 10 July
1990.

Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for
recall took place just the same on the scheduled date through no fault of the
respondent COMELEC and Apelado, et al. The signing process was undertaken by
the constituents of the Municipality of Sulat and its Election Registrar in good faith
and without knowledge of the TRO earlier issued by this Court. As attested by
Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat,
Eastern Samar or about 34% signed the petition for recall. As held in Parades vs.
Executive Secretary 7 there is no turning back the clock.

The right to recall is complementary to the right to elect or appoint. It is included in

the right of suffrage. It is based on the theory that the electorate must maintain a
direct and elastic control over public functionaries. It is also predicated upon the
idea that a public office is "burdened" with public interests and that the
representatives of the people holding public offices are simply agents or servants of
the people with definite powers and specific duties to perform and to follow if they
wish to remain in their respective offices. 8

Whether or not the electorate of the Municipality of Sulat has lost confidence in the
incumbent mayor is a political question. It belongs to the realm of politics where
only the people are the judge. 9 "Loss of confidence is the formal withdrawal by an
electorate of their trust in a person's ability to discharge his office previously
bestowed on him by the same electorate. 10 The constituents have made a judgment
and their will to recall the incumbent mayor (Evardone) has already been
ascertained and must be afforded the highest respect. Thus, the signing process held
last 14 July 1990 in Sulat, Eastern Samar, for the recall of Mayor Felipe P. Evardone
of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided
in Sec. 55 (2) of B.P. Blg, 337, which states:

Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.— . . .
(2) No recall shall take place within two years from the date of the official's
assumption of office or one year immediately preceding a regular local election.

The Constitution has mandated a synchronized national and local election prior to
30 June 1992, or more specifically, as provided for in Article XVIII, Sec. 5 — on the
second Monday of May, 1992. 11 Thus, to hold an election on recall approximately
seven (7) months before the regular local election will be violative of the above
provisions of the applicable Local Government Code (B.P. Blg. 337)

ACCORDINGLY, both petitions are DISMISSED for having become moot and
academic.

SO ORDERED.
G.R. No. 83987 December 27, 1994

GREATER BALANGA DEVELOPMENT CORPORATION, petitioner,

vs.
MUNICIPALITY OF BALANGA, BATAAN; SANGGUNIANG BAYAN OF BALANGA,
BATAAN; HON. MELANIO S. BANZON, JR.; HON. DOMINGO D. DIZON; HON.
AGRIPINO C. BANZON; HON. EDUARDO P. TUAZON; HON. GABRIEL J. NISAY;
HON. LORENZO P. TAPAN; HON. FEDERICO S. BUSTAMANTE; HON. ROLANDO H.
DAVID; HON. EDILBERTO Q. DE GUZMAN; HON. ALFREDO C. GUILA; and HON.
GAVINO S. SANTIAGO, respondents.

Ricardo C. Valmonte and Reynaldo L. Bagatsing for petitioner.

QUIASON, J.:

This a a petition for certiorari, prohibition and mandamus under Rule 65 of the
Revised Rules of Court to annul Executive Order No. 1, s-88 and Resolution No. 12, s-
88 issued, respectively, by the Mayor and the Sangguniang Bayan of Balanga, Bataan.

This case involves a parcel of land, Lot 261-B-6-A-3 of the subdivision plan Psd 03-
007623, situated in Barrio San Jose, Municipality of Balanga, Province of Bataan. The
lot has an area of 8,467 square meters. It is registered under Transfer Certificate of
Title No. 120152 issued on January 11, 1988 by the Register of Deeds of the
Province of Bataan in the name of petitioner Greater Balanga Development
Corporation. Petitioner is a domestic corporation owned and controlled by the
Camacho family, which donated to the Municipality of Balanga the present site of the
Balanga Public Market. The lot in dispute lies behind the Balanga Public Market.

In 1987, petitioner conducted a relocation survey of the area. It discovered that

certain portions of the property had been "unlawfully usurped and invaded" by the
Municipality of Balanga, which had "allowed/tolerated/abetted" the construction of
shanties and market stalls while charging market fees and market entrance fees
from the occupants and users of the area. A portion of the lot had also been utilized
as an unloading site ("bagsakan") of transient vegetable vendors, who were charged
market and entrance fees by the municipality.

On January 11, 1988, petitioner applied with the Office of the Mayor of Balanga for a
business permit to engage in business in the said area. On the same day, Mayor
Melanio S. Banzon, Jr. issued Mayor's Permit No. 2729, granting petitioner the
privilege of a "real estate dealer/privately-owned public market operator" under
the trade name of Balanga Public Market. The permit was to expire on December 31,
1988. Petitioner likewise registered "Balanga Central Market" as a trade name with
the Bureau of Trade Regulations and Consumer Protection.

On February 19, 1988, however, the Sangguniang Bayan of Balanga passed

Resolution No. 12, s-88 annulling the Mayor's permit issued to petitioner and
advising the Mayor to revoke the permit "to operate a public market."

Pursuant to said Resolution, Mayor Banzon, on March 7, 1988, issued Executive

Order No. 1, s-88 revoking the permit insofar as it authorized the operation of a
public market.

On July 13, 1988, petitioner filed the instant petition with a prayer for the issuance
of a writ of preliminary mandatory and prohibitory injunction or restraining order
aimed at the reinstatement of the Mayor's permit and the curtailment of the
municipality's collection of market fees and market entrance fees. The Court did not
issue the preliminary reliefs prayed for.

Respondent asserted that as the local chief executive, the Mayor may issue, deny or
revoke municipal licenses and permits. They contended that Resolution No. 12, s-88
of the Sangguniang Bayan, the basis of Executive Order No. 1, s-88, was a legitimate
exercise of local legislative authority and, as such, the revocation of petitioner's
permit was not tainted with any grave abuse of discretion.

Petitioner replied that since it had not violated any law or ordinance, there was no
reason for respondents to revoke the Mayor's permit issued to it. On the contrary,
petitioner asserted that the executive order and the resolution in question were
quasi-judicial acts and not mere exercises of police power. It questioned
respondents' failure to observe due process in revoking the permit and challenged
the legality of the collection of the market and entrance fees by the municipality.

In their Rejoinder, respondents pointed out that petitioner had violated an existing
municipal ordinance when it failed to disclose the true status of the area involved in
the permit and when it did not secure separate permits for its two businesses, i.e.,
one as "real estate dealer" and another as "privately-owned public market
operator." Respondents referred to Section 3A-06(b) of the Balanga Revenue Code
which, inter alia, enjoins an applicant for a Mayor's permit from making a false
statement in his application and provides for the penalties for violation of any
existing ordinance regulating business establishments.

II

Mayor's Permit No. 2729 was revoked by Executive Order No. 1, s-88, which reads
as follows:
By virtue of the authority vested upon me by law as Mayor of the Municipality of
Balanga, and as per Resolution No. 12, s-88 of the Sangguniang Bayan of Balanga, the
Mayor's Permit in the latter portion of its purpose, i.e., "to operate a public market,"
issued to the Greater Balanga Development Corporation, is hereby REVOKED,
effective immediately.

IN WITNESS WHEREOF, I hereunto have set my hand this 7th day of March 1988, at
Balanga, Bataan.

(SGD.) MELANIO S. BANZON, JR.

Municipal Mayor

(Rollo, p. 36)

The authority of the Mayor to revoke a permit he issued is premised on a violation

by the grantee of any of the conditions for which the permit had been granted.
Respondents claimed that petitioner had violated the provisions of Section 3A-06(b)
of the Balanga Revenue Code when it failed to inform the Mayor that the lot in
controversy was the subject of adverse claims for which a civil case was filed.

Section 3A-06(b) of the Balanga Revenue Code reads:

xxx xxx xxx

(b) The application for a Mayor's permit shall state the name, residence and
citizenship of (sic) the applicant's full description of the business, the particular
place where (sic) the same shall be conducted, and such other pertinent information
and date (sic) as any (sic) be required. If the applicant deliberately makes a false
statement in the application form, the Municipal Mayor may revoke the permit and
the applicant may be prosecuted and penalized in accordance with the pertinent
provisions of penal laws.

In case a person desires to conduct the same kind or line of business in another
place within the Municipality, in addition to or aside from the establishment
specified in his permit, he shall secure a separate permit for each business and pay
the corresponding fee imposed in this article. If a person desires to engage in more
than one kind or line of business, he shall pay the fee imposed on each separate
business, notwithstanding the fact that he may conduct or operate all distinct
business (sic), trades or occupation in one place only.

xxx xxx xxx

(h) Revocation of Permit. — The Municipal Mayor may revoke a permit, in effect
close the establishment, upon a violation of existing ordinance regulating business
establishments or any provisions of this article, in addition to the fine and
imprisonment that they (sic) may be imposed by the court for violation of this
article (Memorandum of the Solicitor General, pp. 16-17; Rollo, p. 322).

Respondents claim that petitioner (1) deliberately made a false statement in the
application form when it failed to provide the information that their place of
business is the subject of adverse claims; and (2) failed to apply for two separate
permits for the two lines of business it proposed to engage in.

The application for Mayor's permit in the case at bench requires the applicant to
state what type of "business", profession, occupation and/or calling privileges" is
being applied for. Petitioner left this entry bank in its application form (Rollo, p.
324). It is only in the Mayor's permit itself that petitioner's lines of business appear,
which in this case are two separate types, one as real estate dealer and another as
public market operator.

The permit should not have been issued without the required information given in
the application form itself. Revoking the permit, however, because of a false
statement in the application form cannot be justified under the aforementioned
provision. There must be proof of willful misrepresentation and deliberate intent to
make a false statement. Good faith is always presumed, and as it happened,
petitioner did not make any false statement in the pertinent entry.

Neither was petitioner's applying for two businesses in one permit a ground for
revocation. The second paragraph of Section 3A-06(b) does not expressly require
two permits for their conduct of two or more businesses in one place, but only that
separate fees be paid for each business. The powers of municipal corporations are to
be construed in strictissimi juris and any doubt or ambiguity must be construed
against the municipality (City of Ozamiz v. Lumapas, 65 SCRA 33 [1975]). Granting,
however, that separate permits are actually required, the application form does not
contain any entry as regards the number of businesses the applicant wishes to
engage in.

Respondents insinuated bad faith on the part of petitioner in failing to supply the
pertinent information in the application form and for taking advantage of the fact
that Mayor Banzon was then newly installed as Mayor of Balanga. The absence of
the material information in the application form was nonetheless supplied in the
face of the permit signed and issued by Mayor Banzon himself (Rollo, p. 17).

Under the law, the Sangguniang Bayan has the power to provide for the
establishment and maintenance of public markets in the municipality and "to
regulate any business subject to municipal license tax or fees and prescribe the
conditions under which a municipal license may be revoked" (B.P. Blg. 337, Sec. 149
[1] [f & r]). It was this authority which respondent Sangguniang Bayan invoked
when it issued Resolution No. 12, s-88.
The said Resolution stated that the land subject of this case was earmarked for the
expansion of the Balanga Public Market; that this land was owned not by petitioner
but by the plaintiffs in Civil Case No. 3803 entitled "Leoncia Dizon, et. al. v. Aurora B.
Camacho"; that the Municipality of Balanga was not apprised of the existence of the
civil case; that the decision awarding the lot to the plaintiffs and the issuance of the
Mayor's permit to petitioner who was not the rightful owner had caused "anxiety,
uncertainty and restiveness" among the stallholders and traders in the subject lot;
and that the Sangguniang Bayan therefore resolved to annul the said Mayor's permit
insofar as it concerns the operation of a public market.

As may be gleaned from said Resolution, the main reason for the revocation of the
Mayor's permit was the controversy engendered by the filing of Civil Case No. 3803
before the Regional Trial Court, Balanga, Bataan involving the ownership of certain
portions of Lot 261-B, the land from which Lot 261-B-6-A-3 was derived.

Lot 261-B was originally owned and registered in the name of Aurora T. Banzon
Camacho, who subdivided the land into nine lots under LRC
Psd-277050 and designated them as Lots 261-B-1 to 261-B-9. She denoted some of
the lots to the Municipality of Balanga which now comprise the Balanga Public
Market, and sold others to third persons.

On January 30, 1974, five buyers of certain portions of Lot 261-B filed Civil Case No.
3803 against Camacho for partition and delivery of titles. Camacho was declared in
default and the plaintiffs forthwith presented their evidence. On December 20, 1974,
the trial court rendered a decision ordering the defendant to segregate the definite
portions sold to the plaintiffs and deliver to them the corresponding titles thereto.
This decision was affirmed by the Court of Appeals on January 30, 1981 in CA-G.R.
No. 59148-R (G.R. No. 62223, Rollo, pp. 50-58).

The defendant elevated the matter to this Court. In a Resolution dated March 21,
1983, we denied the petition for lack of merit (G.R. No. 62223, Rollo, p. 100).

The question now is whether Lot 261-B-6-A-3 is a part of the land adjudged by the
trial court in Civil Case No. 3803 to the plaintiffs, or any one of them.

Lot 261-B-6-A-3 was originally registered in the name of Camacho under TCT No. T-
104438. She denoted the land to her daughter, Aurora Fe (Rollo,
p. 329). TCT No. 104438 was then cancelled and TCT No. T-104461 issued in the
donee's name, who in turn, transferred the land to herein petitioner. TCT
No. 104461 of Aurora Fe was cancelled and TCT No. 120152 was issued in
petitioner's name on January 11, 1988. On the same day, the Mayor's permit to
operate the lot as a public market was also granted.

It is the position of respondents that the series of transfers of the subject lot reveals
a scheme to avoid the application of the decision in Civil Case
No. 3803.
There is no question that Lot 261-B-6-A-3 is a portion of Lot 261-B-6, and the claims
of the plaintiffs in the civil case were on Lots 261-B-6 and
261-B-7 (Rollo, p. 327). As to whether plaintiffs' claims embraced specifically Lot
261-B-6-A-3 could not be determined from the face of the decision in the civil case.
There is no showing that Lot 261-B-6-A-3 was awarded by the court to one of the
plaintiffs therein. There is no proof either that the judgment in said case had already
been executed and the titles delivered to the plaintiffs.

The question of ownership over Lot 261-B had already been settled with finality by
the Supreme Court in 1983 in G.R. No. 62223. Entry of judgment was likewise, made
in the same year. When the Mayor's permit was revoked on February 19, 1988, five
years had already elapsed since the case was decided. Petitioner was able to survey
the land and have the survey approved on March 21, 1984 (Rollo, pp. 15-16), and on
January 11, 1988, petitioner obtained in its name TCT No. 120152 "without any
memorandum of encumbrance or encumbrances pertaining to any decision
rendered in any civil case" (Rollo,
p. 199). Clearly, for all intents and purposes, petitioner appeared to be the true
owner of Lot 261-B-6-A-3 when respondents revoked its permit to engaged in
business on its own land.

Assuming arguendo that Lot 261-B-6-A-3 was actually one of those awarded to the
plaintiffs in Civil Case No. 3803 and the Transfer Certificate of Title of petitioner is
spurious, this still does not justify the revocation of the Mayor's permit.

A close scrutiny of the records reveals that the Sangguniang Bayan did not establish
or maintain any public market on the subject lot. The resolution merely mentioned
the plan to acquire the lot for expansion of the public market adjacent thereto. Until
expropriation proceedings are instituted in court, the
landowner cannot be deprived of its right over the land (Province of Rizal v. San
Diego, 105 Phil. 33 [1959]; Republic v. Baylosis, 96 Phil. 461 [1955]). Of course, the
Sangguniang Bayan has the duty in the exercise of its police powers to regulate any
business subject to municipal license fees and prescribe the conditions under which
a municipal license already issued may be revoked (B.P. Blg. 337, Sec. 149 [1] [r]).
But the "anxiety, uncertainty, restiveness" among the stallholders and traders
cannot be a valid ground for revoking the permit of petitioner. After all, the
stallholders and traders were doing business on property not belonging to the
Municipal government. Indeed, the claim that the executive order and resolution
were measures "designed to promote peace and order and protect the general
welfare of the people of Balanga" is too amorphous and convenient an excuse to
justify respondents' acts (Villacorta v. Bernardo, 143 SCRA 480 [1986]).

Moreover, we find that the manner by which the Mayor revoked the permit
transgressed petitioner's right to due process (Gordon v. Veridiano II, 167 SCRA 51
[1988]). The alleged violation of Section 3A-06(b) of the Balanga Revenue Code was
not stated in the order of revocation, and neither was petitioner informed of this
specific violation until the Rejoinder was filed in the instant case. In fact, with all the
more reason should due process have been observed in view of the questioned
Resolution of the Sangguniang Bayan.

The knowledge of the pendency of Civil Case No. 3803 could not ipso facto nullify
any claim petitioner had on the lot. This necessitated first and foremost a
determination of the exact parameters of the lot and a finding that petitioner is not
the true owner thereof. The finding that Civil Case No. 3803 was already settled by
the Supreme Court should have apprised respondents of the possibility that the
decision therein may have already been executed.

Indeed, the cases of Austin Hardware Co., Inc. v. Court of Appeals, 69 SCRA 564
(1976) and Enriquez v. Bidin, 47 SCRA 183 (1972) are in point. In these cases, the
revocation of the Mayor's permit was upheld by this Court because the grounds for
revocation were admitted and not disputed.

If only for the violation of due process which is manifest from Executive Order No. 1,
s-88 and Resolution No. 12, s-88, the Mayor's arbitrary action can be annulled.

In view of the undisputed fact that the respondent Municipality is not the owner of
Lot 261-B-6-A-3, then there is no legal basis for it to impose and collect market fees
and market entrance fees. Only the owner has the right to do so.

Be that as it may, the Mayor's permit issued on January 11, 1988 cannot now be
reinstated despite the nullity of its revocation. The permit expired on December 31,
1988.

WHEREFORE, (1) the petition for certiorari and prohibition is GRANTED and
Executive Order No. 1, s-88 and Resolution No. 12, s-88 issued, respectively, by
respondents Mayor and Sangguniang Bayan of Balanga, Bataan are NULLIFIED for
having been issued in grave abuse of discretion; and (2) the petition for mandamus
is DISMISSED.

SO ORDERED.
G.R. No. 130230 April 15, 2005

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, Petitioner,

vs.
DANTE O. GARIN, respondent.

DECISION

CHICO-NAZARIO, J.:

At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating
the Metropolitan Manila Development Authority (MMDA), which authorizes it to
confiscate and suspend or revoke driver's licenses in the enforcement of traffic laws
and regulations.

The issue arose from an incident involving the respondent Dante O. Garin, a lawyer,
who was issued a traffic violation receipt (TVR) and his driver's license confiscated
for parking illegally along Gandara Street, Binondo, Manila, on 05 August 1995. The
following statements were printed on the TVR:

You are hereby directed to report to the MMDA Traffic Operations Center Port Area
Manila after 48 hours from date of apprehension for disposition/appropriate action
thereon. Criminal case shall be filed for failure to redeem license after 30 days.

Valid as temporary DRIVER'S license for seven days from date of apprehension.1

Shortly before the expiration of the TVR's validity, the respondent addressed a
letter2 to then MMDA Chairman Prospero Oreta requesting the return of his driver's
license, and expressing his preference for his case to be filed in court.

Receiving no immediate reply, Garin filed the original complaint3 with application
for preliminary injunction in Branch 260 of the Regional Trial Court (RTC) of
Parañaque, on 12 September 1995, contending that, in the absence of any
implementing rules and regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA
unbridled discretion to deprive erring motorists of their licenses, pre-empting a
judicial determination of the validity of the deprivation, thereby violating the due
process clause of the Constitution. The respondent further contended that the
provision violates the constitutional prohibition against undue delegation of
legislative authority, allowing as it does the MMDA to fix and impose unspecified –
and therefore unlimited - fines and other penalties on erring motorists.

In support of his application for a writ of preliminary injunction, Garin alleged that
he suffered and continues to suffer great and irreparable damage because of the
deprivation of his license and that, absent any implementing rules from the Metro
Manila Council, the TVR and the confiscation of his license have no legal basis.
For its part, the MMDA, represented by the Office of the Solicitor General, pointed
out that the powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the
fixing, collection and imposition of fines and penalties for traffic violations, which
powers are legislative and executive in nature; the judiciary retains the right to
determine the validity of the penalty imposed. It further argued that the doctrine of
separation of powers does not preclude "admixture" of the three powers of
government in administrative agencies.4

The MMDA also refuted Garin's allegation that the Metro Manila Council, the
governing board and policy making body of the petitioner, has as yet to formulate
the implementing rules for Sec. 5(f) of Rep. Act No. 7924 and directed the court's
attention to MMDA Memorandum Circular No. TT-95-001 dated 15 April 1995.
Respondent Garin, however, questioned the validity of MMDA Memorandum
Circular No. TT-95-001, as he claims that it was passed by the Metro Manila Council
in the absence of a quorum.

Judge Helen Bautista-Ricafort issued a temporary restraining order on 26

September 1995, extending the validity of the TVR as a temporary driver's license
for twenty more days. A preliminary mandatory injunction was granted on 23
October 1995, and the MMDA was directed to return the respondent's driver's
license.

On 14 August 1997, the trial court rendered the assailed decision5 in favor of the
herein respondent and held that:

a. There was indeed no quorum in that First Regular Meeting of the MMDA
Council held on March 23, 1995, hence MMDA Memorandum Circular No. TT-95-
001, authorizing confiscation of driver's licenses upon issuance of a TVR, is void ab
initio.

b. The summary confiscation of a driver's license without first giving the driver
an opportunity to be heard; depriving him of a property right (driver's license)
without DUE PROCESS; not filling (sic) in Court the complaint of supposed traffic
infraction, cannot be justified by any legislation (and is) hence unconstitutional.

WHEREFORE, the temporary writ of preliminary injunction is hereby made

permanent; th(e) MMDA is directed to return to plaintiff his driver's license; th(e)
MMDA is likewise ordered to desist from confiscating driver's license without first
giving the driver the opportunity to be heard in an appropriate proceeding.

In filing this petition,6 the MMDA reiterates and reinforces its argument in the court
below and contends that a license to operate a motor vehicle is neither a contract
nor a property right, but is a privilege subject to reasonable regulation under the
police power in the interest of the public safety and welfare. The petitioner further
argues that revocation or suspension of this privilege does not constitute a taking
without due process as long as the licensee is given the right to appeal the
revocation.

To buttress its argument that a licensee may indeed appeal the taking and the
judiciary retains the power to determine the validity of the confiscation, suspension
or revocation of the license, the petitioner points out that under the terms of the
confiscation, the licensee has three options:

1. To voluntarily pay the imposable fine,

2. To protest the apprehension by filing a protest with the MMDA Adjudication

Committee, or

3. To request the referral of the TVR to the Public Prosecutor's Office.

The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly
passed in the presence of a quorum, and that the lower court's finding that it had not
was based on a "misapprehension of facts," which the petitioner would have us
review. Moreover, it asserts that though the circular is the basis for the issuance of
TVRs, the basis for the summary confiscation of licenses is Sec. 5(f) of Rep. Act No.
7924 itself, and that such power is self-executory and does not require the issuance
of any implementing regulation or circular.

Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando,
implemented Memorandum Circular No. 04, Series of 2004, outlining the
procedures for the use of the Metropolitan Traffic Ticket (MTT) scheme. Under the
circular, erring motorists are issued an MTT, which can be paid at any Metrobank
branch. Traffic enforcers may no longer confiscate drivers' licenses as a matter of
course in cases of traffic violations. All motorists with unredeemed TVRs were
given seven days from the date of implementation of the new system to pay their
fines and redeem their license or vehicle plates.7

It would seem, therefore, that insofar as the absence of a prima facie case to enjoin
the petitioner from confiscating drivers' licenses is concerned, recent events have
overtaken the Court's need to decide this case, which has been rendered moot and
academic by the implementation of Memorandum Circular No. 04, Series of 2004.

The petitioner, however, is not precluded from re-implementing Memorandum

Circular No. TT-95-001, or any other scheme, for that matter, that would entail
confiscating drivers' licenses. For the proper implementation, therefore, of the
petitioner's future programs, this Court deems it appropriate to make the following
observations:

1. A license to operate a motor vehicle is a privilege that the state may withhold in
the exercise of its police power.
The petitioner correctly points out that a license to operate a motor vehicle is not a
property right, but a privilege granted by the state, which may be suspended or
revoked by the state in the exercise of its police power, in the interest of the public
safety and welfare, subject to the procedural due process requirements. This is
consistent with our rulings in Pedro v. Provincial Board of Rizal8 on the license to
operate a cockpit, Tan v. Director of Forestry9 and Oposa v. Factoran10 on timber
licensing agreements, and Surigao Electric Co., Inc. v. Municipality of Surigao11 on a
legislative franchise to operate an electric plant.

Petitioner cites a long list of American cases to prove this point, such as State ex. Rel.
Sullivan,12 which states in part that, "the legislative power to regulate travel over
the highways and thoroughfares of the state for the general welfare is extensive. It
may be exercised in any reasonable manner to conserve the safety of travelers and
pedestrians. Since motor vehicles are instruments of potential danger, their
registration and the licensing of their operators have been required almost from
their first appearance. The right to operate them in public places is not a natural
and unrestrained right, but a privilege subject to reasonable regulation, under the
police power, in the interest of the public safety and welfare. The power to license
imports further power to withhold or to revoke such license upon noncompliance
with prescribed conditions."

Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth

v. Funk,13 to the effect that: "Automobiles are vehicles of great speed and power.
The use of them constitutes an element of danger to persons and property upon the
highways. Carefully operated, an automobile is still a dangerous instrumentality,
but, when operated by careless or incompetent persons, it becomes an engine of
destruction. The Legislature, in the exercise of the police power of the
commonwealth, not only may, but must, prescribe how and by whom motor vehicles
shall be operated on the highways. One of the primary purposes of a system of
general regulation of the subject matter, as here by the Vehicle Code, is to insure the
competency of the operator of motor vehicles. Such a general law is manifestly
directed to the promotion of public safety and is well within the police power."

The common thread running through the cited cases is that it is the legislature, in
the exercise of police power, which has the power and responsibility to regulate
how and by whom motor vehicles may be operated on the state highways.

2. The MMDA is not vested with police power.

In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,14 we

categorically stated that Rep. Act No. 7924 does not grant the MMDA with police
power, let alone legislative power, and that all its functions are administrative in
nature.

The said case also involved the herein petitioner MMDA which claimed that it had
the authority to open a subdivision street owned by the Bel-Air Village Association,
Inc. to public traffic because it is an agent of the state endowed with police power in
the delivery of basic services in Metro Manila. From this premise, the MMDA argued
that there was no need for the City of Makati to enact an ordinance opening Neptune
Street to the public.

Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we
concluded that the MMDA is not a local government unit or a public corporation
endowed with legislative power, and, unlike its predecessor, the Metro Manila
Commission, it has no power to enact ordinances for the welfare of the community.
Thus, in the absence of an ordinance from the City of Makati, its own order to open
the street was invalid.

We restate here the doctrine in the said decision as it applies to the case at bar:
police power, as an inherent attribute of sovereignty, is the power vested by the
Constitution in the legislature to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be for the good and
welfare of the commonwealth, and for the subjects of the same.

Having been lodged primarily in the National Legislature, it cannot be exercised by

any group or body of individuals not possessing legislative power. The National
Legislature, however, may delegate this power to the president and administrative
boards as well as the lawmaking bodies of municipal corporations or local
government units (LGUs). Once delegated, the agents can exercise only such
legislative powers as are conferred on them by the national lawmaking body.

Our Congress delegated police power to the LGUs in the Local Government Code of
1991.15 A local government is a "political subdivision of a nation or state which is
constituted by law and has substantial control of local affairs."16 Local government
units are the provinces, cities, municipalities and barangays, which exercise police
power through their respective legislative bodies.

Metropolitan or Metro Manila is a body composed of several local government units.

With the passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as
a "special development and administrative region" and the administration of
"metro-wide" basic services affecting the region placed under "a development
authority" referred to as the MMDA. Thus:

. . . [T]he powers of the MMDA are limited to the following acts: formulation,
coordination, regulation, implementation, preparation, management, monitoring,
setting of policies, installation of a system and administration. There is no syllable in
R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even
the Metro Manila Council has not been delegated any legislative power. Unlike the
legislative bodies of the local government units, there is no provision in R. A. No.
7924 that empowers the MMDA or its Council to "enact ordinances, approve
resolutions and appropriate funds for the general welfare" of the inhabitants of
Metro Manila. The MMDA is, as termed in the charter itself, a "development
authority." It is an agency created for the purpose of laying down policies and
coordinating with the various national government agencies, people's organizations,
non-governmental organizations and the private sector for the efficient and
expeditious delivery of basic services in the vast metropolitan area. All its functions
are administrative in nature and these are actually summed up in the charter itself,
viz:

"Sec. 2. Creation of the Metropolitan Manila Development Authority. -- -x x x.

The MMDA shall perform planning, monitoring and coordinative functions, and in
the process exercise regulatory and supervisory authority over the delivery of
metro-wide services within Metro Manila, without diminution of the autonomy of
the local government units concerning purely local matters."

….

Clearly, the MMDA is not a political unit of government. The power delegated to the
MMDA is that given to the Metro Manila Council to promulgate administrative rules
and regulations in the implementation of the MMDA's functions. There is no grant
of authority to enact ordinances and regulations for the general welfare of the
inhabitants of the metropolis. 17 (footnotes omitted, emphasis supplied)

Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court
and by the petitioner to grant the MMDA the power to confiscate and suspend or
revoke drivers' licenses without need of any other legislative enactment, such is an
unauthorized exercise of police power.

3. Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and
regulations.

Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro
Manila Development Authority." The contested clause in Sec. 5(f) states that the
petitioner shall "install and administer a single ticketing system, fix, impose and
collect fines and penalties for all kinds of violations of traffic rules and regulations,
whether moving or nonmoving in nature, and confiscate and suspend or revoke
drivers' licenses in the enforcement of such traffic laws and regulations, the
provisions of Rep. Act No. 413618 and P.D. No. 160519 to the contrary
notwithstanding," and that "(f)or this purpose, the Authority shall enforce all traffic
laws and regulations in Metro Manila, through its traffic operation center, and may
deputize members of the PNP, traffic enforcers of local government units, duly
licensed security guards, or members of non-governmental organizations to whom
may be delegated certain authority, subject to such conditions and requirements as
the Authority may impose."
Thus, where there is a traffic law or regulation validly enacted by the legislature or
those agencies to whom legislative powers have been delegated (the City of Manila
in this case), the petitioner is not precluded – and in fact is duty-bound – to
confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of
transport and traffic management, as well as the administration and
implementation of all traffic enforcement operations, traffic engineering services
and traffic education programs.20

This is consistent with our ruling in Bel-Air that the MMDA is a development
authority created for the purpose of laying down policies and coordinating with the
various national government agencies, people's organizations, non-governmental
organizations and the private sector, which may enforce, but not enact, ordinances.

This is also consistent with the fundamental rule of statutory construction that a
statute is to be read in a manner that would breathe life into it, rather than defeat
it,21 and is supported by the criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the constitutionality of a statute.22

A last word. The MMDA was intended to coordinate services with metro-wide
impact that transcend local political boundaries or would entail huge expenditures if
provided by the individual LGUs, especially with regard to transport and traffic
management,23 and we are aware of the valiant efforts of the petitioner to untangle
the increasingly traffic-snarled roads of Metro Manila. But these laudable intentions
are limited by the MMDA's enabling law, which we can but interpret, and petitioner
must be reminded that its efforts in this respect must be authorized by a valid law,
or ordinance, or regulation arising from a legitimate source.

WHEREFORE, the petition is dismissed.

SO ORDERED.
EN BANC

G.R. No. 161414 January 17, 2005

SULTAN OSOP B. CAMID, petitioner,

vs.
THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, AUTONOMOUS REGION IN MUSLIM MINDANAO, DEPARTMENT
of FINANCE, DEPARTMENT of BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT, and the CONGRESS OF THE PHILIPPINES (HOUSE of REPRESENTATIVES
AND SENATE), respondents.

DECISION

TINGA, J.:

This Petition for Certiorari presents this Court with the prospect of our own
Brigadoon1 —the municipality of Andong, Lanao del Sur―which like its counterpart
in filmdom, is a town that is not supposed to exist yet is anyway insisted by some as
actually alive and thriving. Yet unlike in the movies, there is nothing mystical,
ghostly or anything even remotely charming about the purported existence of
Andong. The creation of the putative municipality was declared void ab initio by this
Court four decades ago, but the present petition insists that in spite of this
insurmountable obstacle Andong thrives on, and hence, its legal personality should
be given judicial affirmation. We disagree.

The factual antecedents derive from the promulgation of our ruling in Pelaez v.
Auditor General2 in 1965. As discussed therein, then President Diosdado Macapagal
issued several Executive Orders3 creating thirty-three (33) municipalities in
Mindanao. Among them was Andong in Lanao del Sur which was created by virtue of
Executive Order No. 107.4

These executive orders were issued after legislative bills for the creation of
municipalities involved in that case had failed to pass Congress.5 President
Diosdado Macapagal justified the creation of these municipalities citing his powers
under Section 68 of the Revised Administrative Code. Then Vice-President
Emmanuel Pelaez filed a special civil action for a writ of prohibition, alleging in main
that the Executive Orders were null and void, Section 68 having been repealed by
Republic Act No. 2370,6 and said orders constituting an undue delegation of
legislative power.7

After due deliberation, the Court unanimously held that the challenged Executive
Orders were null and void. A majority of five justices, led by the ponente, Justice
(later Chief Justice) Roberto Concepcion, ruled that Section 68 of the Revised
Administrative Code did not meet the well-settled requirements for a valid
delegation of legislative power to the executive branch,8 while three justices opined
that the nullity of the issuances was the consequence of the enactment of the 1935
Constitution, which reduced the power of the Chief Executive over local
governments.9 Pelaez was disposed in this wise:

WHEREFORE, the Executive Orders in question are declared null and void ab initio
and the respondent permanently restrained from passing in audit any expenditure
of public funds in implementation of said Executive Orders or any disbursement by
the municipalities above referred to. It is so ordered.10

Among the Executive Orders annulled was Executive Order No. 107 which created
the Municipality of Andong. Nevertheless, the core issue presented in the present
petition is the continued efficacy of the judicial annulment of the Municipality of
Andong.

Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of

Andong,11 suing as a private citizen and taxpayer whose locus standi "is of public
and paramount interest especially to the people of the Municipality of Andong,
Province of Lanao del Sur."12 He alleges that Andong "has metamorphosed into a
full-blown municipality with a complete set of officials appointed to handle essential
services for the municipality and its constituents,"13 even though he concedes that
since 1968, no person has been appointed, elected or qualified to serve any of the
elective local government positions of Andong.14 Nonetheless, the municipality of
Andong has its own high school, Bureau of Posts, a Department of Education,
Culture and Sports office, and at least seventeen (17) "barangay units" with their
own respective chairmen.15 From 1964 until 1972, according to Camid, the public
officials of Andong "have been serving their constituents through the minimal
means and resources with least (sic) honorarium and recognition from the Office of
the then former President Diosdado Macapagal." Since the time of Martial Law in
1972, Andong has allegedly been getting by despite the absence of public funds, with
the "Interim Officials" serving their constituents "in their own little ways and
means."16

In support of his claim that Andong remains in existence, Camid presents to this
Court a Certification issued by the Office of the Community Environment and
Natural Resources (CENRO) of the Department of Environment and Natural
Resources (DENR) certifying the total land area of the Municipality of Andong,
"created under Executive Order No. 107 issued [last] October 1, 1964."17 He also
submits a Certification issued by the Provincial Statistics Office of Marawi City
concerning the population of Andong, which is pegged at fourteen thousand fifty
nine (14,059) strong. Camid also enumerates a list of governmental agencies and
private groups that allegedly recognize Andong, and notes that other municipalities
have recommended to the Speaker of the Regional Legislative Assembly for the
immediate implementation of the revival or re-establishment of Andong.18
The petition assails a Certification dated 21 November 2003, issued by the Bureau of
Local Government Supervision of the Department of Interior and Local Government
(DILG).19 The Certification enumerates eighteen (18) municipalities certified as
"existing," per DILG records. Notably, these eighteen (18) municipalities are among
the thirty-three (33), along with Andong, whose creations were voided by this Court
in Pelaez. These municipalities are Midaslip, Pitogo, Naga, and Bayog in Zamboanga
del Sur; Siayan and Pres. Manuel A. Roxas in Zamboanga del Norte; Magsaysay, Sta.
Maria and New Corella in Davao; Badiangan and Mina in Iloilo; Maguing in Lanao del
Sur; Gloria in Oriental Mindoro; Maasim in Sarangani; Kalilangan and Lantapan in
Bukidnon; and Maco in Compostela Valley.20

Camid imputes grave abuse of discretion on the part of the DILG "in not classifying
[Andong] as a regular existing municipality and in not including said municipality in
its records and official database as [an] existing regular municipality."21 He
characterizes such non-classification as unequal treatment to the detriment of
Andong, especially in light of the current recognition given to the eighteen (18)
municipalities similarly annulled by reason of Pelaez. As appropriate relief, Camid
prays that the Court annul the DILG Certification dated 21 November 2003; direct
the DILG to classify Andong as a "regular existing municipality;" all public
respondents, to extend full recognition and support to Andong; the Department of
Finance and the Department of Budget and Management, to immediately release the
internal revenue allotments of Andong; and the public respondents, particularly the
DILG, to recognize the "Interim Local Officials" of Andong.22

Moreover, Camid insists on the continuing validity of Executive Order No. 107. He
argues that Pelaez has already been modified by supervening events consisting of
subsequent laws and jurisprudence. Particularly cited is our Decision in
Municipality of San Narciso v. Hon. Mendez,23 wherein the Court affirmed the
unique status of the municipality of San Andres in Quezon as a "de facto municipal
corporation."24 Similar to Andong, the municipality of San Andres was created by
way of executive order, precisely the manner which the Court in Pelaez had declared
as unconstitutional. Moreover, San Narciso cited, as Camid does, Section 442(d) of
the Local Government Code of 1991 as basis for the current recognition of the
impugned municipality. The provision reads:

Section 442. Requisites for Creation. - xxx

(d) Municipalities existing as of the date of the effectivity of this Code shall continue
to exist and operate as such. Existing municipal districts organized pursuant to
presidential issuances or executive orders and which have their respective sets of
elective municipal officials holding office at the time of the effectivity of (the) Code
shall henceforth be considered as regular municipalities.25

There are several reasons why the petition must be dismissed. These can be better
discerned upon examination of the proper scope and application of Section 442(d),
which does not sanction the recognition of just any municipality. This point shall be
further explained further on.

Notably, as pointed out by the public respondents, through the Office of the Solicitor
General (OSG), the case is not a fit subject for the special civil actions of certiorari
and mandamus, as it pertains to the de novo appreciation of factual questions. There
is indeed no way to confirm several of Camid’s astonishing factual allegations
pertaining to the purported continuing operation of Andong in the decades since it
was annulled by this Court. No trial court has had the opportunity to ascertain the
validity of these factual claims, the appreciation of which is beyond the function of
this Court since it is not a trier of facts.

The importance of proper factual ascertainment cannot be gainsaid, especially in

light of the legal principles governing the recognition of de facto municipal
corporations. It has been opined that municipal corporations may exist by
prescription where it is shown that the community has claimed and exercised
corporate functions, with the knowledge and acquiescence of the legislature, and
without interruption or objection for period long enough to afford title by
prescription.26 These municipal corporations have exercised their powers for a
long period without objection on the part of the government that although no
charter is in existence, it is presumed that they were duly incorporated in the first
place and that their charters had been lost.27 They are especially common in
England, which, as well-worth noting, has existed as a state for over a thousand
years. The reason for the development of that rule in England is understandable,
since that country was settled long before the Roman conquest by nomadic Celtic
tribes, which could have hardly been expected to obtain a municipal charter in the
absence of a national legal authority.

In the United States, municipal corporations by prescription are less common, but it
has been held that when no charter or act of incorporation of a town can be found, it
may be shown to have claimed and exercised the powers of a town with the
knowledge and assent of the legislature, and without objection or interruption for so
long a period as to furnish evidence of a prescriptive right.28

What is clearly essential is a factual demonstration of the continuous exercise by the

municipal corporation of its corporate powers, as well as the acquiescence thereto
by the other instrumentalities of the state. Camid does not have the opportunity to
make an initial factual demonstration of those circumstances before this Court.
Indeed, the factual deficiencies aside, Camid’s plaint should have undergone the
usual administrative gauntlet and, once that was done, should have been filed first
with the Court of Appeals, which at least would have had the power to make the
necessary factual determinations. Camid’s seeming ignorance of the principles of
exhaustion of administrative remedies and hierarchy of courts, as well as the
concomitant prematurity of the present petition, cannot be countenanced.
It is also difficult to capture the sense and viability of Camid’s present action. The
assailed issuance is the Certification issued by the DILG. But such Certification does
not pretend to bear the authority to create or revalidate a municipality. Certainly,
the annulment of the Certification will really do nothing to serve Camid’s ultimate
cause- the recognition of Andong. Neither does the Certification even expressly
refute the claim that Andong still exists, as there is nothing in the document that
comments on the present status of Andong. Perhaps the Certification is assailed
before this Court if only to present an actual issuance, rather than a long-standing
habit or pattern of action that can be annulled through the special civil action of
certiorari. Still, the relation of the Certification to Camid’s central argument is
forlornly strained.

These disquisitions aside, the central issue remains whether a municipality whose
creation by executive fiat was previously voided by this Court may attain
recognition in the absence of any curative or reimplementing statute. Apparently,
the question has never been decided before, San Narciso and its kindred cases
pertaining as they did to municipalities whose bases of creation were dubious yet
were never judicially nullified. The effect of Section 442(d) of the Local Government
Code on municipalities such as Andong warrants explanation. Besides, the residents
of Andong who belabor under the impression that their town still exists, much less
those who may comport themselves as the municipality’s "Interim Government,"
would be well served by a rude awakening.

The Court can employ a simplistic approach in resolving the substantive aspect of
the petition, merely by pointing out that the Municipality of Andong never
existed.29 Executive Order No. 107, which established Andong, was declared "null
and void ab initio" in 1965 by this Court in Pelaez, along with thirty-three (33) other
executive orders. The phrase "ab initio" means "from the beginning,"30 "at first,"31
"from the inception."32 Pelaez was never reversed by this Court but rather it was
expressly affirmed in the cases of Municipality of San Joaquin v. Siva,33 Municipality
of Malabang v. Benito,34 and Municipality of Kapalong v. Moya.35 No subsequent
ruling by this Court declared Pelaez as overturned or inoperative. No subsequent
legislation has been passed since 1965 creating a Municipality of Andong. Given
these facts, there is hardly any reason to elaborate why Andong does not exist as a
duly constituted municipality.

This ratiocination does not admit to patent legal errors and has the additional virtue
of blessed austerity. Still, its sweeping adoption may not be advisedly appropriate in
light of Section 442(d) of the Local Government Code and our ruling in Municipality
of San Narciso, both of which admit to the possibility of de facto municipal
corporations.

To understand the applicability of Municipality of San Narciso and Section 442(b) of

the Local Government Code to the situation of Andong, it is necessary again to
consider the ramifications of our decision in Pelaez.
The eminent legal doctrine enunciated in Pelaez was that the President was then,
and still is, not empowered to create municipalities through executive issuances.
The Court therein recognized "that the President has, for many years, issued
executive orders creating municipal corporations, and that the same have been
organized and in actual operation . . . ."36 However, the Court ultimately nullified
only those thirty-three (33) municipalities, including Andong, created during the
period from 4 September to 29 October 1964 whose existence petitioner Vice-
President Pelaez had specifically assailed before this Court. No pronouncement was
made as to the other municipalities which had been previously created by the
President in the exercise of power the Court deemed unlawful.

Two years after Pelaez was decided, the issue again came to fore in Municipality of
San Joaquin v. Siva.37 The Municipality of Lawigan was created by virtue of
Executive Order No. 436 in 1961. Lawigan was not one of the municipalities ordered
annulled in Pelaez. A petition for prohibition was filed contesting the legality of the
executive order, again on the ground that Section 68 of the Revised Administrative
Code was unconstitutional. The trial court dismissed the petition, but the Supreme
Court reversed the ruling and entered a new decision declaring Executive Order No.
436 void ab initio. The Court reasoned without elaboration that the issue had
already been squarely taken up and settled in Pelaez which agreed with the
argument posed by the challengers to Lawigan’s validity.38

In the 1969 case of Municipality of Malabang v. Benito,39 what was challenged is the
validity of the constitution of the Municipality of Balabagan in Lanao del Sur, also
created by an executive order,40 and which, similar to Lawigan, was not one of the
municipalities annulled in Pelaez. This time, the officials of Balabagan invoked de
facto status as a municipal corporation in order to dissuade the Court from
nullifying action. They alleged that its status as a de facto corporation cannot be
collaterally attacked but should be inquired into directly in an action for quo
warranto at the instance of the State, and not by a private individual as it was in that
case. In response, the Court conceded that an inquiry into the legal existence of a
municipality is reserved to the State in a proceeding for quo warranto, but only if
the municipal corporation is a de facto corporation.41

Ultimately, the Court refused to acknowledge Balabagan as a de facto corporation,

even though it had been organized prior to the Court’s decision in Pelaez. The Court
declared void the executive order creating Balabagan and restrained its municipal
officials from performing their official duties and functions.42 It cited conflicting
American authorities on whether a de facto corporation can exist where the statute
or charter creating it is unconstitutional.43 But the Court’s final conclusion was
unequivocal that Balabagan was not a de facto corporation.1awphi1.nét

In the cases where a de facto municipal corporation was recognized as such despite
the fact that the statute creating it was later invalidated, the decisions could fairly be
made to rest on the consideration that there was some other valid law giving
corporate vitality to the organization. Hence, in the case at bar, the mere fact that
Balabagan was organized at a time when the statute had not been invalidated
cannot conceivably make it a de facto corporation, as, independently of the
Administrative Code provision in question, there is no other valid statute to give
color of authority to its creation.44

The Court did clarify in Malabang that the previous acts done by the municipality in
the exercise of its corporate powers were not necessarily a nullity.45 Camid devotes
several pages of his petition in citing this point,46 yet the relevance of the citation is
unclear considering that Camid does not assert the validity of any corporate act of
Andong prior to its judicial dissolution. Notwithstanding, the Court in Malabang
retained an emphatic attitude as to the unconstitutionality of the power of the
President to create municipal corporations by way of presidential promulgations, as
authorized under Section 68 of the Revised Administrative Code.

This principle was most recently affirmed in 1988, in Municipality of Kapalong v.

Moya.47 The municipality of Santo Tomas, created by President Carlos P. Garcia,
filed a complaint against another municipality, who challenged Santo Tomas’s legal
personality to institute suit. Again, Santo Tomas had not been expressly nullified by
prior judicial action, yet the Court refused to recognize its legal existence. The blunt
but simple ruling: "Now then, as ruled in the Pelaez case supra, the President has no
power to create a municipality. Since [Santo Tomas] has no legal personality, it can
not be a party to any civil action…."48

Nevertheless, when the Court decided Municipality of San Narciso49 in 1995, it

indicated a shift in the jurisprudential treatment of municipalities created through
presidential issuances. The questioned municipality of San Andres, Quezon was
created on 20 August 1959 by Executive Order No. 353 issued by President Carlos P.
Garcia. Executive Order No. 353 was not one of the thirty-three issuances annulled
by Pelaez in 1965. The legal status of the Municipality of San Andres was first
challenged only in 1989, through a petition for quo warranto filed with the Regional
Trial Court of Gumaca, Quezon, which did cite Pelaez as authority.50 The RTC
dismissed the petition for lack of cause of action, and the petitioners therein
elevated the matter to this Court.

In dismissing the petition, the Court delved in the merits of the petition, if only to
resolve further doubt on the legal status of San Andres. It noted a circumstance
which is not present in the case at bar—that San Andres was in existence for nearly
thirty (30) years before its legality was challenged. The Court did not declare the
executive order creating San Andres null and void. Still, acting on the premise that
the said executive order was a complete nullity, the Court noted "peculiar
circumstances" that led to the conclusion that San Andres had attained the unique
status of a "de facto municipal corporation."51 It noted that Pelaez limited its
nullificatory effect only to those executive orders specifically challenged therein,
despite the fact that the Court then could have very well extended the decision to
invalidate San Andres as well.52 This statement squarely contradicts Camid’s
reading of San Narciso that the creation of San Andres, just like Andong, had been
declared a complete nullity on the same ground of unconstitutional delegation of
legislative power found in Pelaez.53

The Court also considered the applicability of Section 442(d)54 of the Local
Government Code of 1991. It clarified the implication of the provision as follows:

Equally significant is Section 442(d) of the Local Government Code to the effect that
municipal districts "organized pursuant to presidential issuances or executive
orders and which have their respective sets of elective municipal officials holding
office at the time of the effectivity of (the) Code shall henceforth be considered as
regular municipalities." No pretension of unconstitutionality per se of Section
442(d) of the Local Government Code is preferred. It is doubtful whether such a
pretext, even if made, would succeed. The power to create political subdivisions is a
function of the legislature. Congress did just that when it has incorporated Section
442(d) in the Code. Curative laws, which in essence are retrospective, and aimed at
giving "validity to acts done that would have been invalid under existing laws, as if
existing laws have been complied with," are validly accepted in this jurisdiction,
subject to the usual qualification against impairment of vested rights. (Emphasis
supplied)55

The holding in San Narciso was subsequently affirmed in Municipality of Candijay v.

Court of Appeals56 and Municipality of Jimenez v. Baz57 In Candijay, the juridical
personality of the Municipality of Alicia, created in a 1949 executive order, was
attacked only beginning in 1984. Pelaez was again invoked in support of the
challenge, but the Court refused to invalidate the municipality, citing San Narciso at
length. The Court noted that the situation of the Municipality of Alicia was strikingly
similar to that in San Narciso; hence, the town should likewise "benefit from the
effects of Section 442(d) of the Local Government Code, and should [be] considered
as a regular, de jure municipality." 58

The valid existence of Municipality of Sinacaban, created in a 1949 executive order,

was among the issues raised in Jimenez. The Court, through Justice Mendoza,
provided an expert summation of the evolution of the rule.

The principal basis for the view that Sinacaban was not validly created as a
municipal corporation is the ruling in Pelaez v. Auditor General that the creation of
municipal corporations is essentially a legislative matter and therefore the
President was without power to create by executive order the Municipality of
Sinacaban. The ruling in this case has been reiterated in a number of cases later
decided. However, we have since held that where a municipality created as such by
executive order is later impliedly recognized and its acts are accorded legal validity,
its creation can no longer be questioned. In Municipality of San Narciso, Quezon v.
Mendez, Sr., this Court considered the following factors as having validated the
creation of a municipal corporation, which, like the Municipality of Sinacaban, was
created by executive order of the President before the ruling in Pelaez v. Auditor
General: (1) the fact that for nearly 30 years the validity of the creation of the
municipality had never been challenged; (2) the fact that following the ruling in
Pelaez no quo warranto suit was filed to question the validity of the executive order
creating such municipality; and (3) the fact that the municipality was later classified
as a fifth class municipality, organized as part of a municipal circuit court and
considered part of a legislative district in the Constitution apportioning the seats in
the House of Representatives. Above all, it was held that whatever doubt there
might be as to the de jure character of the municipality must be deemed to have
been put to rest by the Local Government Code of 1991 (R. A. No. 7160), §442(d) of
which provides that "municipal districts organized pursuant to presidential
issuances or executive orders and which have their respective sets of elective
officials holding office at the time of the effectivity of this Code shall henceforth be
considered as regular municipalities."

Here, the same factors are present so as to confer on Sinacaban the status of at least
a de facto municipal corporation in the sense that its legal existence has been
recognized and acquiesced publicly and officially. Sinacaban had been in existence
for sixteen years when Pelaez v. Auditor General was decided on December 24,
1965. Yet the validity of E.O. No. 258 creating it had never been questioned. Created
in 1949, it was only 40 years later that its existence was questioned and only
because it had laid claim to an area that apparently is desired for its revenue. This
fact must be underscored because under Rule 66, §16 of the Rules of Court, a quo
warranto suit against a corporation for forfeiture of its charter must be commenced
within five (5) years from the time the act complained of was done or committed. On
the contrary, the State and even the Municipality of Jimenez itself have recognized
Sinacaban's corporate existence. Under Administrative Order No. 33 dated June 13,
1978 of this Court, as reiterated by §31 of the Judiciary Reorganization Act of 1980
(B. P. Blg. 129), Sinacaban is constituted part of a municipal circuit for purposes of
the establishment of Municipal Circuit Trial Courts in the country. For its part,
Jimenez had earlier recognized Sinacaban in 1950 by entering into an agreement
with it regarding their common boundary. The agreement was embodied in
Resolution No. 77 of the Provincial Board of Misamis Occidental.

Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to
the 1987 Constitution, apportioning legislative districts throughout the country,
which considered Sinacaban part of the Second District of Misamis Occidental.
Moreover, following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr.,
442(d) of the Local Government Code of 1991 must be deemed to have cured any
defect in the creation of Sinacaban….591awphi1.nét

From this survey of relevant jurisprudence, we can gather the applicable rules.
Pelaez and its offspring cases ruled that the President has no power to create
municipalities, yet limited its nullificatory effects to the particular municipalities
challenged in actual cases before this Court. However, with the promulgation of the
Local Government Code in 1991, the legal cloud was lifted over the municipalities
similarly created by executive order but not judicially annulled. The de facto status
of such municipalities as San Andres, Alicia and Sinacaban was recognized by this
Court, and Section 442(b) of the Local Government Code deemed curative whatever
legal defects to title these municipalities had labored under.

Is Andong similarly entitled to recognition as a de facto municipal corporation? It is

not. There are eminent differences between Andong and municipalities such as San
Andres, Alicia and Sinacaban. Most prominent is the fact that the executive order
creating Andong was expressly annulled by order of this Court in 1965. If we were
to affirm Andong’s de facto status by reason of its alleged continued existence
despite its nullification, we would in effect be condoning defiance of a valid order of
this Court.l^vvphi1.net Court decisions cannot obviously lose their efficacy due to
the sheer defiance by the parties aggrieved.

It bears noting that based on Camid’s own admissions, Andong does not meet the
requisites set forth by Section 442(d) of the Local Government Code. Section 442(d)
requires that in order that the municipality created by executive order may receive
recognition, they must "have their respective set of elective municipal officials
holding office at the time of the effectivity of [the Local Government] Code." Camid
admits that Andong has never elected its municipal officers at all.60 This incapacity
ties in with the fact that Andong was judicially annulled in 1965. Out of obeisance to
our ruling in Pelaez, the national government ceased to recognize the existence of
Andong, depriving it of its share of the public funds, and refusing to conduct
municipal elections for the void municipality.

The failure to appropriate funds for Andong and the absence of elections in the
municipality in the last four decades are eloquent indicia of the non-recognition by
the State of the existence of the town. The certifications relied upon by Camid,
issued by the DENR-CENRO and the National Statistics Office, can hardly serve the
purpose of attesting to Andong’s legal efficacy. In fact, both these certifications
qualify that they were issued upon the request of Camid, "to support the restoration
or re-operation of the Municipality of Andong, Lanao del Sur,"61 thus obviously
conceding that the municipality is at present inoperative.1awphi1.nét

We may likewise pay attention to the Ordinance appended to the 1987 Constitution,
which had also been relied upon in Jimenez and San Narciso. This Ordinance, which
apportioned the seats of the House of Representatives to the different legislative
districts in the Philippines, enumerates the various municipalities that are
encompassed by the various legislative districts. Andong is not listed therein as
among the municipalities of Lanao del Sur, or of any other province for that
matter.62 On the other hand, the municipalities of San Andres, Alicia and Sinacaban
are mentioned in the Ordinance as part of Quezon,63 Bohol,64 and Misamis
Occidental65 respectively.

How about the eighteen (18) municipalities similarly nullified in Pelaez but certified
as existing in the DILG Certification presented by Camid? The petition fails to
mention that subsequent to the ruling in Pelaez, legislation was enacted to
reconstitute these municipalities.66 It is thus not surprising that the DILG certified
the existence of these eighteen (18) municipalities, or that these towns are among
the municipalities enumerated in the Ordinance appended to the Constitution.
Andong has not been similarly reestablished through statute. Clearly then, the fact
that there are valid organic statutes passed by legislation recreating these eighteen
(18) municipalities is sufficient legal basis to accord a different legal treatment to
Andong as against these eighteen (18) other municipalities.

We thus assert the proper purview to Section 442(d) of the Local Government
Code—that it does not serve to affirm or reconstitute the judicially dissolved
municipalities such as Andong, which had been previously created by presidential
issuances or executive orders. The provision affirms the legal personalities only of
those municipalities such as San Narciso, Alicia, and Sinacaban, which may have
been created using the same infirm legal basis, yet were fortunate enough not to
have been judicially annulled. On the other hand, the municipalities judicially
dissolved in cases such as Pelaez, San Joaquin, and Malabang, remain inexistent,
unless recreated through specific legislative enactments, as done with the eighteen
(18) municipalities certified by the DILG. Those municipalities derive their legal
personality not from the presidential issuances or executive orders which originally
created them or from Section 442(d), but from the respective legislative statutes
which were enacted to revive them.1a\^/phi1.net

And what now of Andong and its residents? Certainly, neither Pelaez or this decision
has obliterated Andong into a hole on the ground. The legal effect of the nullification
of Andong in Pelaez was to revert the constituent barrios of the voided town back
into their original municipalities, namely the municipalities of Lumbatan, Butig and
Tubaran.67 These three municipalities subsist to this day as part of Lanao del Sur,68
and presumably continue to exercise corporate powers over the barrios which once
belonged to Andong.

If there is truly a strong impulse calling for the reconstitution of Andong, the
solution is through the legislature and not judicial confirmation of void title. If
indeed the residents of Andong have, all these years, been governed not by their
proper municipal governments but by a ragtag "Interim Government," then an
expedient political and legislative solution is perhaps necessary. Yet we can hardly
sanction the retention of Andong’s legal personality solely on the basis of collective
amnesia that may have allowed Andong to somehow pretend itself into existence
despite its judicial dissolution. Maybe those who insist Andong still exists prefer to
remain unperturbed in their blissful ignorance, like the inhabitants of the cave in
Plato’s famed allegory. But the time has come for the light to seep in, and for the
petitioner and like-minded persons to awaken to legal reality.

WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.
G.R. No. 118533 October 4, 1995

MAYOR PABLO R. OLIVAREZ, petitioner,

vs.
HON. SANDIGANBAYAN (Second Division) and the HON. OMBUDSMAN, Special
Prosecutor ANIANO DESIERTO and Deputy Special Prosecutor JOSE DE G.
FERRER, respondents.

REGALADO, J.:

In this original action for certiorari and prohibition, petitioner Mayor Pablo R.
Olivarez seeks to annul the following:

1. Resolution dated February 9, 1994 issued by Special Prosecutor (SP) Aniano

Desierto and approved by Ombudsman Conrado M. Vasquez on February 15, 1994
reversing Special Prosecution Officer (SPO) I Cornelio Somido's recommendation to
dismiss the case against petitioner; 1

2. Resolution dated December 9, 1994 issued by Deputy Special Prosecutor

(DSP) Jose De G. Ferrer and approved by Ombudsman Conrado Vasquez on
December 23, 1994 reversing SPO III Angel Mayoralgo's recommendation to
withdraw the case against petitioner for insufficiency of evidence; 2 and

3. Resolution dated January 16, 1995 issued by the Sandiganbayan denying

petitioner's Motion to Strike Out and/or Review Result of Reinvestigation conducted
by the Office of the Ombudsman.3

The facts are succinctly summarized in the Comment4 of the Solicitor General as
follows:

1. On December 15, 1992, Baclaran Credit Cooperative, Inc. (BCCI), through its
board member Roger de Leon, charged petitioner Parañaque Mayor Dr. Pablo R.
Olivarez with Violation of the Anti-Graft and Corrupt Practices Act for unreasonably
refusing to issue a mayor's permit despite request and follow-ups to implement
Parañaque Sangguniang Bayan Resolution No. 744, Series of 1992 which petitioner
himself approved on October 6, 1992. Resolution No. 744 authorized BCCI to set up
a night manufacturer's fair during the Christmas fiesta celebration of and at
Baclaran for 60 days from November 11, 1992 to February 15, 1993 for which they
will use a portion of the service road of Roxas Boulevard from the corner of Opena
to Rivera Streets (Annex "D", Petition). Attached to the affidavit-complaint were: (i)
a letter dated October 29, 1992 of Councilor Winnie Esplana to Arch. Vita of
Parañaque Engineering Department;
(ii) four letters all dated November 13, 1992 of BCCI General Manager Mr. Steve
Espina to petitioner, Arch. Vita, Municipal Health Officer
Dr. Oscar de Leon and Municipal Treasurer Silvestre de Leon requesting assistance
for the issuance of a mayor's permit; (iii) Letter dated November 24, 1992 of BCCI
counsel Atty. Renato Dilag to petitioner formally demanding implementation of Res.
744 (Annex "H"); (iv) petitioner's reply letter dated November 27, 1992 to Atty.
Dilag stating among others that the non-implementation of Res. 744 was due to
BCCI's failure to apply for appropriate permit and license to operate the Night
Manufacturer's Fair which was one of the conditions in the authorization (Annex
"I").

2. On March 12, 1993, petitioner filed his counter-affidavit stating that the
charge of violation of Sec. 3(f) of RA 3019 has no legal and factual basis because (a)
HCCI, which actually started operation, never applied for a mayor's permit as
evidenced by his letter reply to
Atty. Dilag and the affidavit dated March 11, 1993 of Business Permit and License
Office Officer-In-Charge Mrs. Elenita T. Paracale (Annex "J"). Moreover, the four
letters of Mr. Steve Espina requesting assistance in the issuance of mayor's permit
were not filed with the municipal office concerned.

3. In his Reply Affidavit dated April 1, 1993, complainant BCCI denied

conducting actual operations but only commenced soliciting participants and
would-be sponsors to the fair. Allegedly, BCCI exerted all possible efforts to secure
the necessary permit but petitioner simply refused to issue the same unless it gives
money to petitioner. Attached to the Reply-Affidavit was a copy of Executive Order
dated Nov. 23, 1992 issued by petitioner granting a group of Baclaran-based
organizations/associations of vendors the holding of "Christmas Agro-Industrial
Fair sa Baclaran" from November 28, 1992 to February 28, 1993 using certain
portions of the National and Local Government Roads/Streets in Baclaran for fund
raising (Annex "L").

4. Graft Investigation Officer (GIO) III Rogelio A. Ringpis conducted a

preliminary investigation and issued on September 22, 1993 a resolution
recommending the prosecution of petitioner for violation of Sec. 3(f) of R.A. No.
3019 as amended. The recommendation was approved by EPIB Head Raul Arnau
and endorsed by Assistant Ombudsman Abelardo L. Aportadera to Special
Prosecutor (SP) Aniano Desierto for review and possible preparation of criminal
information. The endorsement was duly noted by Over-all Deputy Ombudsman
Francisco A. Villa.

5. On December 22, 1993, Special Prosecutor (SP) II Luz L. Quinones-Marcos,

upon review of the Ringpis resolution, recommended the filing of information
against petitioner for violation of Sec. 3(e) instead of Sec. 3(f) of R.A. 3019. The
recommendation was approved by
Deputy Special Prosecutor (DSP) Jose De G. Ferrer and SP Desierto. On January 11,
1994, Ombudsman Conrado Vasquez approved the report and recommendation and
directed the government prosecutors to file the necessary information against
petitioner with the Sandiganbayan.

6. The Information for Violation of Sec. 3(e) of R.A. 3019 filed on February 16,
1994 and docketed as Criminal Case No. 20226, reads as follows:

That in or about the month of November, 1992 or for sometime prior thereto, in the
Municipality of Parañaque, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, a public officer being then the duly
elected Municipal Mayor of Parañaque, Metro Manila, with manifest partiality and
evident bad faith in the exercise of his administrative and official functions, did then
and there wilfully, unlawfully and criminally, without valid reason, refuse to issue a
mayor's permit and/or refuse to act favorably on the application of the Baclaran
Credit Cooperative, Inc. (BCCI) to operate a "night fair" along the service road of
Roxas Boulevard (Baclaran) for a period of sixty (60) days in accordance with
Resolution No. 744 series of 1992 of the Municipal Council of Parañaque, and that
instead the accused issued and signed an executive order on November 23, 1992
granting an unknown or unidentified group of Baclaran-based
organizations/associations of vendors the privilege to operate a "night fair" at
certain portions of the national and local roads/streets in Baclaran, thus, causing
undue injury to the Baclaran Credit Cooperative, Inc.

CONTRARY TO LAW.

(Annex "P").

7. On January 17, 1994, petitioner filed a Motion for Reconsideration and/or

Reinvestigation allegedly to rectify error of law and on ground of newly discovered
evidence (Annex "O"). Although opposed by the prosecution on January 24, 1994,
the same was granted.

8. On February 7, 1994, Special Prosecu(tion) Officer (SPO) I Cornelio Somido

to whorn the reinvestigation was assigned, issued an order recommending the
withdrawal of the information against petitioner for insufficiency of evidence. This
recommendation approved by DSP de G. Ferrer was however disapproved by SP
Desierto noting that:

Respondent does not refute the allegation and evidence that complainant and
representative approached him and he refused to issue the permit despite follow up.
Neither does respondent claim that in refusing to issue the permit, he advised
complainant and representatives that they had failed to comply with requirements.
Bad faith is, therefore, evident in the respondent's persistent refusal to issue permit.

On February 9, 1994, Ombudsman Vasquez concurred with Special Prosecutor

Desierto and disapproved the recommendation (Annex "A").
9. On February 18, 1994, petitioner voluntarily surrendered and posted a cash
bail bond with the Sandiganbayan for his temporary release.

10. On February 21, 1994, petitioner filed an Omnibus Motion for a re-
examination and re-assessment of the prosecution's report and documentary
evidence with a view to set aside the determination of the existence of probable
cause and ultimately the dismissal of the case (Annex "Q").

11. On March 3, 1994, the Sandiganbayan, after finding that sufficient probable
cause exist(s) against petitioner, denied for lack of merit petitioner's Omnibus
Motion in open court and proceeded to arraign him as scheduled that day. But in
view of petitioner's refusal to enter any plea, the court ordered a plea of "not guilty"
entered into his record.

12. On March 8, 1994, the prosecution filed a Motion to suspend Accused

Pendente Lite.

13. On March 9, 14 and 15, 1994, petitioner filed a Motion to Set Aside Plea and
To Reduce Denial Order Into Writing (With Entry of Appearance) (Annex "R"),
Supplemental Motion to Set Aside Plea and Opposition to Motion to Suspend
Accused and Supplemental Pleading with Additional Opposition to Motion to
Suspend Accused (Annex "S"), respectively. Petitioner sought the following relief, to
wit:

a) to set aside plea of "not guilty" entered for him by the court during the
arraignment on March 3, 1994;

b) to dismiss the case after a re-study of probable cause;

c) to order preliminary investigation for violation of Section 3(e) of R.A. 3019;.

d) to deny the motion for suspension.

14. On March 23, 1994, the prosecution opposed the supplemental motions and
prayed that the denial of petitioner's Omnibus Motion be maintained.

15. On April 4, 1994, the Sandiganbayan denied petitioner's motion but in the
interest of justice and to avoid further delay in the prompt adjudication of the case
due to technicalities, it set aside the proceedings conducted on March 3, 1994
including petitioner's arraignment thus revoking the plea of "not guilty" entered in
his record. The arraignment was set to April 7, 1994 but further action on the
prosecution's motion to suspend petitioner pendente lite was deferred, without
prejudice to the reiteration or revival thereof at the proper time and upon notice
(Annex "T").
16. On April 20, 1994, petitioner filed a motion for reconsideration which was
granted on May 15, 1994 (Annex "V"). Consequently, the case was remanded to the
Office of the Ombudsman for another reinvestigation to be terminated within 30
days from notice. Petitioner's arraignment was again reset to July 13, 1994 in the
event of adverse resolution on the re-investigation.

17. During this reinvestigation, petitioner filed a Memorandum with Additional

Evidence to SP(O) III Berbano to whom the case was assigned (Annex "W").
Meantime, several scheduled arraignments were deferred on the ground that the
reinvestigation has not been terminated and, later, the recommendation has yet to
be acted upon by superior officers.

18. On September 23, 1994, SPO III Roger Berbano, Sr. issued a memorandum
recommending the withdrawal of the Information on the ground that no probable
cause exist(s) to indict petitioner for violation of Section 3(e) of R.A. (3019). He
alleged that to grant an exclusive mayor's permit demanded by BCCI will subject
petitioner to liability for violation of R.A. 3019 for giving unwarranted benefit to
BCCI. Moreover, BCCI failed to show compliance with the requirements of Res. 744,
hence petitioner had all the reasons to refuse issuance of mayor's permit. Also,
the issuance of Executive Order dated November 23, 1992 allowing Baclaran-based
vendors associations to hold a night fair did not in any manner cause injury to BCCI
as the authority given to them under Res. 744 was not exclusive. Petitioner merely
considered the best interest of the municipality.

19. On October 3, 1994, complainant Manuel A. Vizcarra, formally requested the

Ombudsman to disqualify SP(O) Berbano on the ground of lack of confidence, bias
and undue delay in the reinvestigation of the case.

20. The reinvestigation was reassigned to SPO III Angel C. Mayoralgo who on
November 3, 1994 recommended the dismissal of the case stating that petitioner
"cannot be held liable for violation of either Section 3(f), the original charge, or
Section 3(e), R.A. 3019, the pending charge against Mayor Olivarez, because he
neither neglect[ed]/refuse[d] to act without sufficient justification on the letter
request addressed to him, nor acted through manifest partiality, evident bad faith or
gross inexcusable negligence causing undue injury to BCCI. If ever the latter
sustained injury for the non-implementation of Council Resolution No. 744, S-92, the
same is due to the fault and indiscretion of its officers."

21. On December 9, 1994, DSP de G. Ferrer reversed the recommendation with

the following observation:

Even discounting evident bad faith on the part of respondent for the sake of
argument, he is liable under Sec. 3(e) of R.A. 3019 by giving unwarranted benefit
THRU MANIFEST PARTIALITY, to another group on the flimsy reason that
complainant failed to apply for a business permit.
The merits of respondent's justification (insufficient as it is) should be passed upon
by the court.

(Annex "B")

The reversal was concurred (in) by SP Desierto and approved by Ombudsman

Vasquez, who on December 27, 1994, directed the prosecution to proceed under the
existing information.

22. On January 13, 1995, petitioner filed a Motion for Issuance of Subpoena
Duces Tecum and Ad Testificandum to DSP Jose de G. Ferrer, SPO III Roger Berbano,
Sr., and SPO III Angel Mayoralgo, Jr.

23. On January 16, 1995, petitioner filed a Motion to Strike Out and/or Review
Result of Reinvestigation praying that:

(a) the Ombudsman's Resolution of January 9, 1995 sustaining his original

finding that probable cause (exists) against petitioner be stricken off the record;

(b) the information be dismissed

(c) or in the alternative, for the court to review Ombudsman's finding of

probable cause against him" (Annex "X").

24. On January 16, 1995, the motion was denied by respondent Sandiganbayan. .
. . (Corrections in parentheses supplied.)

Hence, this petition.

Petitioner assails the discretionary power of the Ombudsman to review the

recommendations of the government prosecutors and to approve or disapprove the
same through a mere marginal note, without conducting another preliminary
investigation. Similarly, petitioners fault respondent Sandiganbayan for, allegedly in
grave abuse of discretion, refusing to review the finding of the Ombudsman that
there exists probable cause to hold petitioner liable for violation of Republic Act No.
3019, considering that the Ombudsman did not comply with the guidelines set forth
by respondent court in the conduct of the reinvestigation.

We shall first deal with the propriety or impropriety of the questioned marginal
notes, dated February 9, 1994 and December 9, 1994, issued by then Special
Prosecutor Aniano Desierto (now Ombudsman) and Deputy Special Prosecutor Jose
de G. Ferrer, respectively. Petitioner contends that these marginal notes are null and
void on the ground that the same were issued without the benefit of a new
preliminary investigation and that the findings therein were not based on the facts
and the evidence presented. It is likewise averred that the above-named
government prosecutors were engaging in a fishing expedition when they changed
theories, that is, from "evident bad faith" to "manifest partiality," but only after the
Sandiganbayan had issued a Resolution declaring that the original finding of bad
faith was unwarranted.

After a careful scrutiny of the issues raised in the petition for certiorari, the
arguments in support thereof, as well as the comments of the public respondents
thereon, we are not convinced that herein public respondents acted with grave
abuse of discretion or without or in excess of jurisdiction.

The mere fact that the order to file the information against petitioner was contained
in a marginal note is not sufficient to impute arbitrariness or caprice on the part of
respondent special prosecutors, absent a clear showing that they gravely abused
their discretion in disapproving the recommendation of the investigating
prosecutors to dismiss or withdraw the case against petitioner. Neither are these
marginal notes tainted with or indicative of vindictiveness or arbitrariness as
imputed by petitioner. Public respondents disapproved the recommendation of the
investigating prosecutors because they sincerely believed that there is sufficient
evidence to indict the accused.

The Ombudsman's conformity thereto is but an exercise of his powers based upon
constitutional mandate and the courts should not interfere in such exercise. The rule
is based not only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but upon practicality as
well. Otherwise, the functions of the courts will be grievously hampered by
innumerable petitions assailing the dismissal of investigatory proceedings
conducted by the Office of the Ombudsman with regard to complaints filed before it,
in much the same way that the courts would be extremely swamped if they could be
compelled to review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in court or
dismiss a complaint by a private complainant.5

It may be true that, on the face thereof, the marginal notes seem to lack any factual
or evidentiary basis for failure to specifically spell out the same. However, that is not
all there is to it. What is actually involved here is a situation wherein, on the bases of
the same findings of fact of the investigating prosecutors, respondent special
prosecutors were of the opinion that, contrary to the former's recommendation,
petitioner is probably guilty of the offense charged. Obviously, therefore, since it is
merely a review of the conclusions arrived at by the investigating prosecutor,
another or a new preliminary investigation is no longer necessary.

The case of Cruz, Jr. vs. People, et al., 6 which involves substantially the same issues,
has ruled on the matter in this wise:

It may seem that the ratio decidendi for the Ombudsman's order may be wanting
but this is not a case of a total absence of factual and legal bases nor a failure to
appreciate the evidence presented. What is actually involved here is merely a
review of the conclusion arrived at by the investigating prosecutor as a result of his
study and analysis of the complaint, counter-affidavits, and the evidence submitted
by the parties during the preliminary investigation. The Ombudsman here is not
conducting anew another investigation but is merely determining the propriety and
correctness of the recommendation given by the investigating prosecutor, that is,
whether probable cause actually exists or not, on the basis of the findings of the
latter. Verily, it is discretionary upon the Ombudsman if he will rely mainly on the
findings of fact of the investigating prosecutor in making a review of the latter's
report and recommendation, as the Ombudsman can very well make his own
findings of fact. There is nothing to prevent him from acting one way or the other. As
a matter of fact, Section 4, Rule 112 of the Rules of Court provides that "where the
investigating assistant fiscal recommends the dismissal of the case but his findings
are reversed by the provincial or city fiscal or the chief state prosecutor on the
ground that a probable cause exists, the latter may, by himself, file the
corresponding information against the respondent or direct any other assistant
fiscal or state prosecutor to do so, without conducting another preliminary
investigation."

With more reason may the Ombudsman not be faulted in arriving at a conclusion
different from that of the investigating prosecutor on the basis of the same set of
facts. It cannot be said that the Ombudsman committed a grave abuse of discretion
simply because he opines contrarily to the prosecutor that, under the facts obtaining
in the case, there is probable cause to believe that herein petitioner is guilty of the
offense charged.

. . . (f)rom the tenor of respondent Ombudsman's statement, it is clear that he agreed

with the findings of facts of the investigating prosecutor but disagreed with the
latter's conclusion on the import and significance of said findings. On the basis of the
findings of fact of the investigating prosecutor, which were not disputed by
petitioner, respondent Ombudsman believed that there was sufficient ground to
engender a well-founded belief that a crime had been committed and that petitioner
is probably guilty thereof. (Italics in the original text.)

The alleged shift in theory from "evident bad faith" to "manifest partiality" fails to
present a sufficient indicium that respondent prosecutors gravely abused their
discretion. Manifest partiality, evident bad faith and gross inexcusable negligence
are but elements of the offense defined in and punishable under Section 3(e) of
Republic Act No. 3019 for which petitioner stands charged. The presence or absence
of the elements of the crime are evidentiary in nature and are matters of defense,
the truth of which can be best passed upon after a full-blown trial on the merits.
Thus, the issue of whether there was bad faith or manifest partiality on the part of
petitioner should best be determined, not in the preliminary investigation, but
during the trial proper.7

It must here be stressed that a preliminary investigation is essentially inquisitorial,

and it is often the only means of discovering the persons who may be seasonably
charged with a crime, to enable the prosecutor to prepare his complaint or
information It is not a trial of the case on the merits and has no purpose except that
of determining whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof, and it does not place the persons
against whom it is taken in jeopardy. It is not the occasion for the full and exhaustive
display of the parties' evidence; it is for the presentation of such evidence only as
may engender a well-grounded belief that an offense has been committed and that
the accused is probably guilty thereof. 8

Consequently, petitioner's asseveration that the reinvestigation is null and void

because the respondent prosecutors failed to consider all the evidence presented in
his defense has no leg to stand on. A perusal of the records will show that all the
documentary evidence, as well as the additional documents submitted by petitioner
during the reinvestigation, were thoroughly examined and fully evaluated in the
determination of probable cause.

Probable cause, as explained in the aforecited case of Pilapil, is —

. . . a reasonable ground of presumption that a matter is, or may be, well founded,
such a state of facts in the mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe, or entertain an honest or strong suspicion, that a
thing is so. The term does not mean "actual and positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a
finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the
act or omission complained of constitutes the offense charged. Precisely, there is a
trial for the reception of evidence of the prosecution in support of the charge.

Whether an act was done causing undue injury to the government and whether the
same was done with manifest partiality or evident bad faith can only be made out by
proper and sufficient testimony. Necessarily, a conclusion can be arrived at when
the case has already proceeded on sufficient proof.

. . . the court should not be guided by the rule that accused must be shown to be
guilty beyond a reasonable doubt, but rather whether there is sufficient evidence
which inclines the mind to believe, without necessarily leaving room for doubt, that
accused is guilty thereof.9

We have meticulously analyzed the arguments raised by the parties in the various
pleadings and motions, together with their documentary evidence, which all formed
the basis for the issuance of the questioned resolutions, and we are convinced that
there exists probable cause as to warrant the filing of charges against herein
petitioner for a violation of Section 3(e) of Republic Act
No. 3019.
Petitioner's main defense is that BCCI was not issued a mayor's permit by reason of
its failure to apply therefor and to comply with the conditions set forth in
Sangguniang Bayan Resolution No. 744. There are several flaws to this argument.

First. The purported absence of an application for the issuance of a permit is

actually more apparent than real. Initially, petitioner claims that he could not grant
a permit to BCCI, which was allegedly demanding an exclusive authority to operate,
on the pretext that he can be held liable for a violation of Republic Act No. 3019 for
giving unwarranted benefits to BCCI to the detriment of other Baclaran-based
vendors' associations. Subsequently, but in the same vein, petitioner tries to justify
the issuance of an executive order granting a permit to the unidentified Baclaran-
based vendors' associations, in that the same did not cause injury to BCCI since the
authority to operate given to the latter is not exclusive.

It would appear, therefore, that petitioner had taken it upon himself to categorize
and determine the exclusivity or non-exclusivity of the authority to operate granted
to BCCI, depending on whether or not it would suit his purpose or predilection. The
inconsistent stand taken by petitioner with regard to the true character of BCCI's
authority to operate is indeed quite perplexing and suffices to cast sufficient doubt
on the real motive behind the non-issuance of the required permit.

Second. It is asserted that the executive order granting a permit to the

Baclaran-based vendors' associations was issued by petitioner supposedly in the
best interest of the municipality as evidenced by its earnings from the night fair in
the total amount of P13,512,948.00. While the avowed purpose may prove noble,
still it miserably pales in contrast to what appears to be bad faith or manifest
partiality on the part of petitioner in refusing to grant a permit to BCCI. Petitioner
could not plausibly demonstrate how the issuance of a permit to BCCI would so
adversely affect public interest as to warrant its denial. On the contrary, the
Sangguniang Bayan of Parañaque had even passed a resolution, which notably was
approved by herein petitioner, expressly allowing BCCI to hold the night fair. This is
concrete proof that the grant of authority to operate in favor of BCCI was not at all
contrary to law and public policy, nor was it prejudicial to public interest.

Petitioner's suspected partiality may be gleaned from the fact that he issued a
permit in favor of the unidentified Baclaran-based vendors' associations by the
mere expedient of an executive order, whereas so many requirements were
imposed on BCCI before it could be granted the same permit. Worse, petitioner
failed to show, in apparent disregard of BCCI's right to equal protection, that BCCI
and the unidentified Baclaran-based vendors' associations were not similarly
situated as to give at least a semblance of legality to the apparent haste with which
said executive order was issued. It would seem that if there was any interest served
by such executive order, it was that of herein petitioner.

Petitioner likewise submits that no permit could be issued because BCCI never filed
an application therefor with the proper office, that is, the Business Permit and
Licensing Office. This is actually begging the question. It is not denied that on
November 13, 1992, BCCI, through its general manager, wrote petitioner requesting
for a permit to operate, but this was rejected outright by him on the theory that the
application should be made with the proper municipal official. The indifference
shown by petitioner to BCCI's application taints his actuations with dubiety.

As the mayor of the municipality, the officials referred to were definitely under his
authority and he was not without recourse to take appropriate action on the letter-
application of BCCI although the same was not strictly in accordance with normal
procedure. There was nothing to prevent him from referring said letter-application
to the licensing department, but which paradoxically he refused to do. Whether
petitioner was impelled by any material interest or ulterior motive may be beyond
us for the moment since this is a matter of evidence, but the environmental facts and
circumstances are sufficient to create a belief in the mind of a reasonable man that
this would not be completely improbable, absent countervailing clarification.

Lastly, it may not be amiss to add that petitioner, as a municipal mayor, is expressly
authorized and has the power to issue permits and licenses for the holding of
activities for any charitable or welfare purpose, pursuant to Section 444 (b) (3) (iv
and v) of the Local Government Code of 1991 (Republic Act No. 7160). Hence, he
cannot really feign total lack of authority to act on the letter-application of BCCI..

On the basis of the foregoing, we are reasonably convinced that there is enough
evidence to warrant the filing of a formal charge in court against herein petitioner
for a violation of Section 3(e) of Republic Act No. 3019.

Considering that the findings of fact by the Office of the Ombudsman are supported
by substantial evidence, the same should be considered conclusive. Furthermore,
the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing
said findings on the contention that the Ombudsman committed a grave abuse of
discretion in holding that petitioner is liable for the offense charged, the petition at
bar clearly raises questions of fact. The arguments therein are anchored on the
propriety of or error in the Ombudsman's appreciation of the facts of the case.

Petitioner cannot be unaware of our oft-repeated injunction that this Court is not a
trier of facts, more so in an application for the extraordinary writ of certiorari where
neither questions of fact nor even of law are entertained, since only questions of
lack or excess of jurisdiction or grave abuse of discretion are authorized. 10 On this
issue, therefore, we find that no grave abuse of discretion has been committed by
respondents which would warrant the granting of the writ of certiorari, especially
where the circumstances attending the recourse therefor are strongly suggestive of
dilatory purposes.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.