1

Facts:

Aguinaldo was the duly elected Governor of the province of Cagayan. After the December 1989 coup d’état was crushed, DILG Secretary Santos sent a telegram & letter to Governor Aguinaldo requiring him to show cause why he should not be suspended or removed from office for disloyalty to the Republic. A sworn complaint was also filed by Mayors of several municipalities in Cagayan against Aguinaldo for acts committed during the coup. Aguinaldo denied being privy to the planning of the coup or actively participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers. 

The Secretary suspended petitioner from office for 60 days from notice, pending the outcome of the formal investigation. Later, the Secretary rendered a decision finding petition guilty as charged and ordering his removal from office. Vice-Governor Vargas was installed as Governor. Aguinaldo appealed.

Aguinaldo filed a petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order with the SC, assailing the decision of respondent Secretary of Local Government. Petitioner argued that: (1) that the power of respondent Secretary to suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that since respondent Secretary no longer has power to suspend or remove petitioner, the former could not appoint respondent Melvin Vargas as Governor; and (3) the alleged act of disloyalty committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it is an act punishable as rebellion under the Revised Penal Code.

While the case was pending before the SC, Aguinaldo filed his certificate of candidacy for the position of Governor of Cagayan. Three petitions for disqualification were filed against him on the ground that he had been removed from office.

The Comelec granted the petition. Later, this was reversed on the ground that the decision of the Secretary has not yet attained finality and is still pending review with the Court.  As Aguinaldo won by a landslide margin in the elections, the resolution paved the way for his eventual proclamation as Governor of Cagayan.  

Issues:

1.  WON petitioner's re-election to the position of Governor of Cagayan has rendered the administration case moot and academic

2. WON the Secretary has the power to suspend or remove local government officials as alter ego of the President

3. WON proof beyond reasonable doubt is required before petitioner could be removed from office.

1

2

Held:1. Yes. Aguinaldo’s re-election to the position of Governor of Cagayan has rendered the administrative case pending moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for governor of Cagayan province. The rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. 

2. Yes. The power of the Secretary to remove local government officials is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments. It is a constitutional doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected by him. Furthermore, it cannot be said that BP337 was repealed by the effectivity of the present Constitution as both the 1973 and 1987 Constitution grants to the legislature the power and authority to enact a local government code, which provides for the manner of removal of local government officials. Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., this court had the occasion to state that B.P. Blg. 337 remained in force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is approved. The power of the DILG secretary to remove local elective government officials is found in Secs. 60 and 61 of BP 337. 

3. No. Petitioner is not being prosecuted criminally, but administratively where the quantum of proof required is only substantial evidence. (Aguinaldo vs. Santos, G.R. No. 94115, August 21, 1992)

AGUINALDO vs. SANTOS, G.R. No. 94115, August 21, 1992Pertinent provision of the Local Government Code: Section 60–Grounds for Disciplinary ActionsIn this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner Rodolfo E. Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm. Case  No. P-10437-89 dismissing him as Governor of Cagayan. Facts:Petitioner was the duly elected Governor of the province of Cagayan, having been elected to said position duringthe local elections held on January 17, 1988, to serve a term of four (4) years therefrom. On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by Veronico Agatep, ManuelMamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam, all in Cagayan,against petitioner for acts the latter committed during the coup . Petitioner was required

2

3

to file a verified answer to thecomplaint. In his letter, petitioner denied being privy to the planning of the coup or actively participating in itsexecution, though he admitted that   he was sympathetic to the cause of the rebel soldiers. Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep andothers. On the basis thereof,respondent Secretary suspended petitioner from office for sixty (60) days from notice,pending the outcome of the formal investigation into the charges against him. During the hearing conducted on thecharges against petitioner, complainants presented testimonial and documentary evidence to prove the charges.Petitioner neither presented evidence nor even cross-examined the complainant's witnesses, choosing instead to movethat respondent Secretary inhibit himself from deciding the case, which motion was denied. Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his removal from office.While this case was pending before this Court, petitioner filed his certificate of candidacy for the position of Governor of Cagayan for the May 11, 1992 elections. As petitioner won by a landslide margin in the elections, the resolution pavedthe way for his eventual proclamation as Governor of Cagayan.One of the three grounds petitioner relies on for this petition is that: the alleged act of disloyalty committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it is an act  punishable as rebellion under the Revised Penal Code.

Issue:Whether or not petitioner should be removed from office on the ground of disloyalty to the Republic.

Held:NO. Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before the Court moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for governor of Cagayan province. The rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only substantial evidence. WHEREFORE , petitioner is hereby GRANTED and the decision of public respondent Secretary of Local Government datedMarch 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby REVERSED.

 The Court used the Aguinaldo Doctrine, which states, “a reelected local official may not be held administratively accountable for misconduct committed during his prior term of

3

4

office. The rationale being that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.†�

In Aguinaldo vs. Santos, the Court made clear the rule that a public official cannot be removed from administrative misconduct committed during a prior term, since his reelection to office operates as a condoning of the officer’s previous misconduct, thereby cutting off the right to remove him.

PABLICO VS VILLAPANDOFacts:

An administrative complaint was filed with the Sangguniang Panlalawigan of Palawan against then Mayor of San Vicente, Palawan Alejandro Villapando for abuse of authority and culpable violation of the Constitution because he entered into a consultancy agreement with Orlando Tiape, a defeated mayoralty candidate.  Complainants argue that this amounted to appointment to a government position within the prohibited one-year period under Article IX-B, Sec. 6 of the 1987 Constitution. 

In his answer, respondent countered that he did not appoint Tiape, rather, he merely hired him.  He invoked Opinion No. 106, s. 1992, of the Department of Justice dated August 21, 1992, stating that the appointment of a defeated candidate within one year from the election as a consultant does not constitute an appointment to a government office or position as prohibited by the Constitution.

The Sangguniang Panlalawigan found respondent guilty and imposed on him the penalty of dismissal from service, and was affirmed by the Office of the President.  Vice-mayor Pablico took his oath as municipal mayor in place of Villapando. 

The Court of Appeals declared the decisions of the SP and OP void, and ordered Pablico to vacate the Office of the Mayor of San Vicente, Palawan.

ISSUE:May local legislative bodies and/or the Office of the President, on appeal, validly impose the penalty of dismissal from service on erring elective local officials?

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

4

5

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

It is clear from the last paragraph of the aforecited provision that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law.  Thus, in Salalima, et al. v. Guingona, et al., we held that “[t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60.”

Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that – “(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.”  The disciplining authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.

As held in Salalima, this grant to the “disciplining authority” of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations.  No rule or regulation may alter, amend, or contravene a provision of law, such as the Local Government Code.   Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. (Pablico vs. Villapando, G.R. No. 147870.  July 31, 2002)

Pablico vs Villapanda G.R. No. 147870 July 31, 2002

Facts:Solomon Maagad and Renato Fernandez, members of the Sangguniang Bayan of San Vicente, Palawan filed an administrative complaint against Alejandro A. Villapando, the mayor of San Vicente, Palawan for abuse of authority and culpable violation of the Constitution for entering into a consultancy agreement with Orlando M. Tiape, a defeated mayoralty candidate in the May 1998 elections where Villapando was elected. They allege that the consultancy agreement amounted to an appointment to a government position within the prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution. Villapando, on the other hand, argues that he did not hire Tiape, but appointed him and invoked Opinion No. 106, s. 1992, of the Department of Justice which states that the appointment of a defeated candidate as a consultant does not constitute an appointment to a government office or position as prohibited by the Constitution. The Sangguniang Panlalawigan of Palawan found Villapando guilty of the administrative charge and dismissed him from service which was affirmed by the Office of the President. Meanwhile, Ramir Pablico, the vice-mayor of San Vicente, Palawan, took his oath of office as Municipal Mayor. Villapando filed for a temporary restraining order with the RTC of Palawan which was first granted, then denied.

5

6

Villapando now seeks to annul the Sangguniang Panlalawigan’s Decision as affirmed by the Office of the President, and the RTC’s denial of the TRO. He argues that under Sec. 60 of R.A. 7160, an elective local official may be removed by order of the proper court based on the grounds enumerated under said section. Without such order of the court, he cannot be dismissed.

Issue:Whether or not local legislative bodies and/or the Office of the President, on appeal, may validly impose the penalty of dismissal from service on erring elective local officials?

Held:No.The Supreme Court held that it is clear under Sec. 60 of R.A. 7160 that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law. In Salalima, et al. v. Guingona, et al., it was held that “[t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60.” Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that – “(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.” The disciplining authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.As held in Salalima, this grant to the “disciplining authority” of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations. No rule or regulation may alter, amend, or contravene a provision of law, such as the Local Government Code. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the “disciplining authority” to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991.The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove.

Malinao vs Reyes

VIRGINIA MALINAO vs. HON. LUISITO REYES, in his capacity as Governor of the Province of Marinduque, SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and

6

7

WILFREDO RED, in his capacity as Mayor of Sta. Cruz, Marinduque G.R. No. 117618March 29, 1996

FACTS:Malinao filed an administrative case against Mayor Red for abuse of authority and denial of due process with the Sangguniang Panlalawigan of Marinduque. On August 12, 1994, members of the Sanggunian, by a vote of 5 to 3, found Red guilty, vote signed only by presiding chairman. On September 5, the Sanggunian, voting 7 to 2, acquitted Red of the charges against him. This vote was embodied in a Decision which was signed by all the members. Malinao argued that the First Sanggunian decision had already become final and executory for failure of Red to appeal.

ISSUE:Whether or not the second Decision is valid.

HELD:Yes, the second decision of acquittal is valid. In any case, this issue is already moot and academic as a result of the expiration of Red’s term during which the act complained of was allegedly committed, and further proceedings are barred by his reelection. [Sec 66(b) LGC]. Reelection abates any administrative disciplinary proceedings against the local elective official. [Under Sec. 66 (b) of the LGC, the penalty of suspension cannot exceed the unexpired term of the official and any administrative disciplinary proceeding against said official is abated if in the meantime he is re-elected because such re-election is a condonation of whatever misconduct he might have committed during his previous term. In order to render a decision in an administrative case involving elected local officials, the decision of the Sanggunian must be in writing, stating clearly the facts and the reasons for such a decision.

Malinao vs. Reyes (1996)

Facts: Malinao filed an administrative case against Mayor Red for abuse of authority and denialof due process with the Sangguniang Panlalawigan of Marinduque. On August 12, 1994,members of the Sanggunian, by a vote of 5 to 3, found Red guilty, vote signed only by presidingchairman. On September 5, the Sanggunian, voting 7 to 2, acquitted Red of the charges againsthim. This vote was embodied in a Decision which was signed by all the members. Malinaoargued that the First Sanggunian Decision had already become final and executory for failure of Red to appeal.

The issue: is whether or not the second Decision is valid.

Held:

Yes, the second decision of acquittal is valid. In any case, this issue is already moot andacademic as a result of the expiration of Red’s term during which the act complained of wasallegedly committed, and further proceedings are barred by his reelection. [Sec 66(b) LGC].Reelection abates any administrative disciplinary proceedings against the local elective official.[Under Sec.

7

8

66 (b) of the LGC, the penalty of suspension cannot exceed the unexpired term of the official and any administrative disciplinary proceeding against said official is abated if in the mean time he is re-elected because such re-election is a condonation of whatever misconduct he might have committed during his previous term. In order to render a decision in an administrative case involving elected local officials, the decision of the Sanggunian must be in writing, stating clearly the facts and the reasons for such a decision.

Garcia v. Mojica G.R. No. 139043 September 10, 1999

Facts:On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of asphalt to the city. The contract covers the period 1998-2001, which was to commence on September 1998 upon F.E. Zuellig’s first delivery. Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City, through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into the matter. Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132. After investigation, he recommended that the said inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation

Issues:1. Whether Garcia may be held administratively liable.2. Whether the Ombudsman was stripped of its powers by virtue of the Local Government Code.

Held:1. No. As previously held, “…a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office.” The rationale is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such is considered a condonation of his past misdeeds.However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just 4 days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character.Petitioner can no longer be held administratively liable for an act done during his previous term. The agreement between petitioner and F.E. Zuellig was perfected on the date the contract was signed, during petitioner’s prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F. E. Zuellig, this should not prejudice the filing of any case, other than administrative, against petitioner. The ruling does not mean the total exoneration of petitioner’s

8

9

wrongdoing, if any, that might have been committed in signing the subject contract. The ruling is now limited to the question of his administrative liability therefore, and it is our considered view that he may not.

2. No. There is nothing in the LGC to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. The decision of the Ombudsman (6 month suspension) will prevail over the LGC (60day suspension) if the evidence of guilt is strong. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman.

Garcia vs. Mojica (1999)

Facts: Garcia, as Cebu City mayor, signed a contract with F.E. Zuellig for supply of asphalt tothe city. Contract covers the period 1998-2001 which was to commence on September1998 whenthe first delivery should have been made by Zuellig.March1999, news reports came outregarding alleged anomalous purchase of asphalt by Cebu City, through the contract signed by Garcia – which prompted Office of Ombudsman (Visayas) to conduct an inquiry. Preventive suspension order was issued by the Office of the Ombudsman. Garcia assails validity of the order.

Held: There can be no question as to the power and authority of respondent Deputy Ombudsman Mojica to issue an order of preventive suspension against an official like Garcia – to prevent that official from using his office to intimidate or influence witnesses or to tamper with records that might be vital to the prosecution of the case against him. However, the said office cannot hold him administratively liable for acts committed prior to his present term of office. It has repeatedly held in a number of cases that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale is that when the electorate put him back into office, it is presumed that it did so withfull knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such an undertaking is impossible. Rulings on the matter do not distinguish the precise timing or  period when the misconduct was committed, reckoned from the date of the official’s reelection, except that it must be prior to said date.[Salalima case applies – that sound policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. In the case at bar, Garcia cannot anymore be held administrative liable for an act done during his previous term (his signing of contract with Zuellig).

9

10

Lapid vs CA GR 142261 June 29, 2000

Facts:Gov.Manuel Lapid & 5 other government officials were charged with alleged dishonesty, grave misconduct and conduct prejudicial to the best interest of the service for allegedly having conspired among themselves in demanding & collecting from various quarrying operators in Pampanga a control fee, control slip, or monitoring fee of P120 per truckload of sand, gravel or other quarry material, without a duly enacted provincial ordinance authorizing the collection thereof and without issuing receipts for such collection. The Ombudsman rendered a decision finding petitioner guilty for misconduct, which meted out the penalty of 1yr suspension without pay pursuant to Sec.25(2) of RA 6770 (Ombudsman Act of 1989). The DILG implemented the said Ombudsman decision. Proceeding from the premise that the Ombudsman decision had not yet become final, petitioner argued that writs of prohibition & mandamus may be issued against the DILG for prematurely implementing the assailed decision.

Issue:WON the Ombudsman’s Decision finding petitioner administratively liable for misconduct & imposing upon him a penalty of 1yr suspension without pay is immediately executory pending appeal.

Held:Sec.27 of RA 6770 provides that “Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month’s salary shall be final and unappealable.”The Rules of Produce of the Office of the Ombudsman likewise contains a similar provision. Section 7, Rule III of the said Rules provides: “where the respondent is absolved of the charge and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of 10 days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari, shall have been filed by him as prescribed in Section 27of R.A. 6770.” The punishment imposed upon petitioner is not among those listed as final and unappealable. The legal maxim “inclusion unius est exclusio alterus” finds application. The express mention of the things included excludes those that are not included. The clear import of these statements taken together is that all other decisions of the Office of the Ombudsman which impose penalties not enumerated in the said section are not final, unappealable and immediately executory. An appeal timely filed, such as the one filed in the instant case, will stay the immediate implementation of the decision. A judgment becomes “final and executory” by operation of law. The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be rendered nugatory.The general rule is that judgments by lower courts or tribunals become executory only after it has become final and executory, execution pending appeal being an exception to this general rule.There is no general legal principle that mandates that all decisions of quasi-judicial agencies are immediately executory. Where the legislature has seen fit to declare that the decision of the

10

11

quasi-judicial agency is immediately final and executory pending appeal, the law expressly so provides. Sec. 12 of Rule 43 should therefore be interpreted as mandating that the appeal will not stay the award, judgment,final order or resolution unless the law directs otherwise.final order or resolution unless the law directs otherwise. Petitioner was charged administratively before the Ombudsman and accordingly the provisions of the Ombudsman Act should apply in his case.It is a principle in statutory construction that where there are two statutes that apply to a particular case, that which was specially designed for the said case must prevail over the other. Considering however, that petitioner was charged under the Ombudsman Act, it is this law alone which should govern his case. It is suffice to note that the Ombudsman rules of procedure, Administrative Order No. 07, mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand, suspension of not more than one month salary or fine equivalent to one month salary are still appealable and hence, not final and executory.

LAPID vs. COURT OF APPEALS

 Facts: A complaint was filed in the Ombudsman charging petitioner Gov. Manuel M.Lapid and 5 other government officials with alleged dishonesty, grave misconduct and conduct prejudicial to the best interest of the service for allegedly having conspired between and among themselves in demanding and collecting from various quarrying operators in Pampanga a control fee, control slip, or monitoring fee of P120 per truckload of sand, gravel, or other quarry material, without a duly enacted provincial ordinance authorizing the collection thereof and without issuingreceipts for its collection. The Ombudsman rendered a decision finding guilty the petitioner form is conduct for which they are meted out the penalty of 1 year suspension without pay pursuant to section 25 (2) of RA 6770 (Ombudsman Act of 1989).Department of Interior and Local Government (DILG) implemented the assailed decision of the Ombudsman. Proceeding from the premise that the decision of Ombudsman had not yet been become final, the petitioner argued that the writs of prohibition and mandamus may be issued against the respondent DILG for prematurely implementing the assailed decision.

ISSUE:Whether or not the decision of the Office of the Ombudsman finding petitioner administratively liable for misconduct and imposing upon him a penalty of 1 year suspension without pay is immediately executor pending appeal.

HELD:NO. Section 27 of the Ombudsman Act provides that any order, directive or decision of the Office of the Ombudsman imposing a penalty of public censure or reprimand, or suspension of not more than one month’s salary shall be final and unappealable. It is clear from the above provision that the punishment imposed upon petitioner, i.e. suspension without pay for one month, is not among those listed as final and unappealable, hence, immediately executory. The clear import of these statements taken together is impose penalties that are not enumerated in the said section 27 are not final, unappealable and immediately executory. An appeal timely filed, such as the one filed in the instant case, will stay the immediate implementation of the decision.

11

12

Garcia vs. COMELEC (1993)

Facts: On July,1993 some mayors, vice-mayors and members of the Sangguniang Bayan of 12municipalities of Bataan province met and constituted themselves into a Preparatory RecallAssembly (PRA) in the Bagac town plaza to initiate the recall election of Governor Garcia,elected governor of Bataan in May, 1992 elections, for “loss of confidence”. COMELECscheduled recall elections. Governor Garcia asserts the unconstitutionality of Section 70 of theLocal Government Code.

 

The issue: is whether or not Section 70 of the Local Government Codeis unconstitutional?

Held: Section 70 of LGC is constitutional.The presumption of validity rests on the respect due to the wisdom, integrity, and the patriotism of the legislative, by which the law is passed, and the Chief Executive, by whom the law is approved. Garcia et al, do not point to any constitutional provision that will sustain their contention – for surely, there is nothing in there that will remotely suggest that the people have the “sole and exclusive right to decide on whether to initiate a recall proceeding.” The Constitution did not provide for any mode of initiating recall elections. It did not prohibit the adoption of multiple modes of initiating recall elections. Mandate given by Sec3 of ArtX of the Constitution is for Congress to “enact a LGC which shall provide for a more responsive and accountable local government structure through a system of decentralization with effective mechanisms of recall, initiative, and referendum.” The Congress was clearly given the power to choose the effective mechanisms of recall as its discernment dictates. The power given was to select which among the means and methods of initiating recall elections are effective to carry out the judgment of the electorate, and it was not straightjacketed to one particular mechanism of initiating recall elections. The Constitution requires only that the mechanisms chosen be effective. The choice may be erroneous but the remedy against a bad law is to seek its amendment or repeal by the legislative. The requirement of notice is mandatory for it is indispensable in determining the collective wisdom of the members of PRA. Its non-observance is fatal to the validity of the resolution to recall Garcia as Governor of Bataan. The due process clause of the Constitution requiring notice as an element of fairness is inviolable and should always be considered as part and parcel of every law in case of its silence. Resolution to recall should articulate the majority will of the members of the assembly but the majority will can be genuinely determined only after all the members have been given a fair opportunity to express the will of their constituents Initiation by the PRAC is also initiation by the people, albeit done indirectly through their representatives, this act by the people through their elected representatives is not constitutionally impermissible as seen in the task of drafting the Constitution which is delegated to their representatives (either by constitutional convention or as a congressional constituent assembly).Initiation of recall process is a lesser act and there is no rhyme or reason why it cannot been trusted to and exercised by the elected representatives of the people. PRA resolution of recall is not the recall itself. The PRA resolution merely starts the process – only a part of the process, and not the whole. This is self-evident because a PRA resolution of recall that is not submitted to the COMELEC for validation will not recall its subject officials.

12

13

GARCIA V. COMELEC Sept. 30, 1994

FACTS: On May 24, 1993, petitioners filed a petition with the Sangguniang Bayan of Morong to annul Pambansang Kapasyahan Blg. 10, Serye 1993 which includes the Municipality of Morong as part of the Subic Special Economic Zone in accord with the RA No. 7227.

The municipality did not take any action on the petition within 30 days after its submission; so, they resorted to their power of initiative under the Local Government Code of 1991. They solicited the required number of signatures to repeal the said resolution.

However, the Vice Mayor, Hon. Edilberto de Leon, and the Presiding Office of the Sangguniang Bayan ng Morong wrote a letter dated June 11, 1993 to deny the petition for local initiative and/or referendum.

On July 6, 1993, the Comelec denied the petition for local initiative because its subject is “merely a resolution and not an ordinance.”

ISSUE:w/n the Pambansang Kapasyahan Blg. 10, Serye 1993 is the proper subject of an initiative?Sub-issue: w/n the decision of the Comelec to deny the petition be set aside?

HELD:The petition is granted and the decision of the Comelec on July 6, 1993 is annulled and set aside.

RULING:The 1987 Constitution installed back the power to the people regarding legislation because of the event in February 1986. The new Constitution became “less trusting of public officials.”

Through initiative, the people were given the power to amend the Constitution under Sec. 2 Art. 17 which provides “amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voter therein.”

The Comelec was also empowered to enforce and administer all laws and regulations relative to the conduct of an initiative and referendum.

On Aug. 4, 1989, the Congress approved RA No. 6735 entitled “An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor.”

YES. Sec. 32 of Art. 6 provides “ the Congress shall provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly proposeand enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body.

13

14

Under Sec. 32(a) of RA No. 6735 it provided the 3 systems of initiative, namely:1. Initiative on the Constitution – petition to amend the Constitution2. Initiative on statutes – petition proposing to enact a national legislation3. Initiative on local legislation – petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance

Under its Sec.16(a), it provided the limitations on local initiatives, which is “the power of local initiative shall not be exercised more than once a year.”

CLAUDIO v. COMELECG.R. 140560. May 4, 2000

FACTS Jovito Claudio was the duly elected mayor of Pasay City during the 11 May 1998

elections. He assumed office on 1 July 1998. On 19 May 1999, an ad hoc committee was formed for the purpose of convening a

Preparatory Recall Assembly (“PRA”). On 29 May 1999, majority of the members of the PRA adopted a Resolution to Initiate

the Recall of Mayor Jovito Claudio for Loss of Confidence. On 2 July 1999, the petition for recall was formally submitted to the Office of the

Election Officer. Copies of the petition were posted in public places in Pasay City and the authenticity of the signatures therein was verified by the election officer for Pasay City.

The petition was opposed on several grounds. Principally, that the convening of the PRA took place within the one-year prohibited period under Sec. 74, LGC which provides:

Limitations on Recall. - (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. xxxx

The COMELEC granted the petition. It ruled that the petition did not violate the one-year ban because the petition was filed on 2 July 1999, one day after Claudio’s assumption of office.

ISSUES1. WoN the word recall in Sec. 74(b), LGC covers a process which includes the convening of the

Preparatory Recall Assembly and its approval of the recall resolution.2. WoN the term "regular local election" in the last clause of Sec. 74(b), LGC includes the

election period for that regular election or simply the date of such election.

HELD/RATIO

14

15

1. The word recall in Sec. 74(b), LGC refers to the to the election itself by means of which voters decided whether they shall retain their local official or elect his replacement.

Recall is a process which involves the following steps: (1) the convening of the preparatory assembly or gathering of the signatures of at

least 25% registered voters in the LGU; (2) the filing of the recall resolution or petition with the COMELEC; (3) the verification of the resolution or petition; (4) fixing of the date of the recall election; and(5) holding of the election.

That the word “recall” used in Sec. 74(b), LGC, refers to the recall election itself is due to the following reasons:

(1) Sec. 69, LGC provides that the power of recall shall be exercised by the registered voters of the LGU to which the local elective official belongs. It is clear that the power of recall referred to in Sec. 69 is the power to retain/replace officials and not the power to initiate recall proceedings. Thus, the limitations under Sec. 74 (Limitations on Recall) apply only to the recall elections.

In Garcia v. COMELEC, the delegation of the power to initiate recall proceedings from the electorate to the PRAs was questioned. The Supreme Court held that what the Constitution gave to the people is the power to recall and not the power to initiate the recall proceedings. The holding of the PRA is not the recall itself.

(2) That the word recall refers to the recall election is consistent with the purposes1 of the limitations on recall.

The purpose of the first limitation is to provide a reasonable basis for judging the performance of the official (Angobung v. COMELEC). This judgment is not given during the preliminary proceedings (such as the convening of the PRA) but through the vote during the recall election itself.

(3) That the word recall refers to the recall election is to uphold the constitutional rights of speech and freedom of assembly of PRA members.

To hold that limitation includes the formation of opinion through public discussions on the matter of recall of an official is to curtail these constitutional rights.

2. The term “regular elections” does not include the election period.1 (1) that no recall shall take place within one year from the date of assumption of office of the official concerned; and (2) that no recall shall take place within one year immediately preceding a regular local election.

15

16

To construe the word “regular elections” as including the election period would emasculate the right of the people to exercise the power of recall.

In Paras v. COMELEC, the Supreme Court held that the limitations on Sec. 74 (a) and Sec. 74 (b) would mean that a local elective official may be subject only to recall during the second year of his/her term (in this case, from 1 July 1999 to mid-May 2000)

If the “regular elections” mentioned in Sec. 74(b) would include the election period, which commences 90 days from the date of the election and extends to 30 days thereafter, the period during which the power of recall may be exercised will be reduced even more. (in this case, from 1 July 1999 to mid-February 2000)

HELD/RATIOPetition DISMISSED.

Osea vs Malaya G.R. No. 139821 January 30, 2002

Facts:Petitioner filed a protest with the Civil Service Commission. She averred that she was appointed as OIC, Assistant Schools Division Superintendent of Camarines Sur, by then DECS Sec.Ricardo T. Gloria, upon the endorsement of the Provincial School Board of Camarines Sur. Despite the recommendation of Sec.Gloria, President Fidel V. Ramos appointed respondent to the position of Schools Division Superintendent of Camarines Sur. Petitioner averred that respondent’s appointment was made without prior consultation with the Provincial School Board, in violation of Sec.99 of the LGC of 1991. Hence, petitioner prayed that respondent’s appointment be recalled and set aside for being null and void. Sec. 99 of RA 7610 provides:“Sec. 99. Functions of Local School Boards. — The provincial, city or municipal school board shall:xxx xxx xxx. The Department of Education, Culture and Sports shall consult the local school boards on the appointment of division superintendents, district supervisors, school principals, and other school officials.” The CSC dismissed petitioner’s protest complaint. The CSC found that President Ramos appointed respondent without any specific division. Thus, respondent performed the functions of Schools Division Superintendent in Iriga City. On November 3, 1997, Sec.Gloria designated respondent as Schools Division Superintendent of Camarines Sur, and petitioner as Schools Division Superintendent of Iriga City.In dismissing petitioner’s protest, the CSC held that Sec.99 of the LGC of 1991 contemplates a situation where the DECS issues the appointments, whereas respondent’s appointment was made by the President, in the exercise of his appointing power. Moreover, the designation of respondent as Schools Division Superintendent of Camarines Sur and of petitioner as Schools Division Superintendent of Iriga City were in the nature of reassignments, in which case consultation with the local school board was unnecessary.

16

17

Issue:Whether Respondent was merely re-assigned and did not require the mandatory consultation with the Local School Board under Sec.99 of RA 7160.

Held:The afore-quoted portion of Sec.99 of the LGC of 1991 applies to appointments made by the DECS. This is because at the time of the enactment of the LGC, schools division superintendents were appointed by the DECS to specific divisions or locations. In 1994, the Career Executive Service Board issued Memorandum Circular No.21, Series of 1994, placing the positions of schools division superintendent and assistant schools division superintendent within the career executive service. Consequently, the power to appoint persons to career executive service positions was transferred from the DECS to the President. Under the circumstances, the designation of respondent as Schools Division Superintendent of Camarines Sur was not a case of appointment. Her designation partook of the nature of a reassignment from Iriga City, where she previously exercised her functions as OIC Schools Division Superintendent, to Camarines Sur. Clearly, therefore, the requirement in Sec. 99 of the LGC of 1991 of prior consultation with the local school board, does not apply. It only refers to appointments made by the DECS. Such is the plain meaning of the said law. Appointment should be distinguished from reassignment. An appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure. On the other hand, a reassignment is merely a movement of an employee from one organizational unit to another in the same department or agency, which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment. In the same vein, a designation connotes merely the imposition of additional duties on an incumbent official.

OSEA vs MALAYA G.R. No. 139821, January 30, 2002

FACTS: Petitioner Eleonor Osea filed a protest case with the Civil Service Commission alleging that she was appointed as Officer-in-Charge, Assistant Schools Division Superintendent of Camarines Sur, by the then Secretary of DECS, upon the endorsement of the Provincial School Board of Camarines Sur. However, despite this, President Fidel Ramos, appointed respondent Corazon Malaya to the position of Schools Division Superintendent of Camarines Sur.

Petitioner claims that the appointment of respondent was made without prior consultation with the Provincial School Board, in violation of Section 99 of the Local Government Code as well as her vested right as the Schools Division Superintendent of Camarines Sur. Petitioner prayed that respondent’s appointment be recalled and set aside for being null and void.

The pertinent portion of Section 99 of Republic Act No. 7610, also known as the Local Government Code of 1991, states: Sec. 99. Functions of Local School Boards. --- The provincial, city or municipal school board shall: xxx  xxx  xxx. The Department of Education,

17

18

Culture and Sports shall consult the local school boards on the appointment of division superintendents, district supervisors, school principals, and other school officials.

The Civil Service Commission dismissed petitioner’s protest complaint. The CSC found that President Ramos appointed respondent without any specific division. Thus, respondent performed the functions of Schools Division Superintendent in Iriga City. On November 3, 1997, Sec. Gloria designated respondent as Schools Division Superintendent of Camarines Sur, and petitioner Osea as Schools Division Superintendent of Iriga City. CSC held that Sec.99 of the LGC of 1991 contemplates a situation where the DECS issues the appointments, whereas respondent’s appointment was made by the President, in the exercise of his appointing power. Moreover, the designation of respondent as Schools Division Superintendent of Camarines Sur and of petitioner as Schools Division Superintendent of Iriga City were in the nature of reassignments, in which case consultation with the local school board was unnecessary.

Petitioner’s MR was denied. Hence, she filed a petition for certiorari

ISSUE: Whether respondent’s appointment require the mandatory consultation with the Local School Board under Sec.99 of RA 7160.

HELD: Section 99 of the LGC applies to appointments made by the DECS because at the time of the enactment of the LGC, schools division superintendents were appointed by the DECS to specific division or location. However, in 1994, the Career Executive Service Board issued a Memorandum Circular placing the positions of schools division superintendent and assistant schools division superintendent within the career executive service. Consequently, the power to appoint persons to career executive service positions was transferred from the DECS to the President. The appointment may not be specific as to location. The prerogative to designate the appointees to their particular stations was vested in the Department of Education, Culture and Sports Secretary, pursuant to the exigencies of the service, as provided in Department of Education, Culture and Sports Order No. 75, Series of 1996.

In the case at bar, the appointment issued by President Ramos in favor of respondent to the Schools Division Superintendent position on September 3, 1996 did not specify her station. It was Secretary Gloria who, in a Memorandum dated November 3, 1997, assigned and designated respondent to the Division of Camarines Sur, and petitioner to the Division of Iriga City.

In addition, under the circumstances, the designation of respondent as Schools Division Superintendent of Camarines Sur was not a case of appointment but rather in the nature of reassignment from Iriga City, where she previously exercised her functions as Officer-in-Charge-Schools Division Superintendent, to Camarines Sur. Therefore, Section 99 of the LGC, which requires prior consultation with the local school board does not apply. It only refers to appointments made by the Department of Education, Culture and Sports. Such is the plain meaning of the said law.

18

19

Appointment vs. Reassignment

Appointment should be distinguished from reassignment. An appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office.

On the other hand, a reassignment is merely a movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary and does not require the issuance of an appointment. In the same vein, a designation connotes merely the imposition of additional duties on an incumbent official

Petitioner asserts a vested right to the position of Schools Division Superintendent of Camarines Sur, citing her endorsement by the Provincial School Board. Her qualification to the office, however, lacks one essential ingredient, i.e., her appointment thereto. While she was recommended by Secretary Gloria to President Ramos for appointment to the position of Schools Division Superintendent of Camarines Sur, the recommendation was not acted upon by the President.

Petitioner Osea's designation as Officer-in-Charge, Assistant Schools Division Superintendent, was expressly made subject to further advice from the DECS. Thus, her designation was temporary. In fact, there was a need to recommend her to the President for appointment in a permanent capacity. Inasmuch as she occupied her position only temporarily, petitioner can be transferred or reassigned to other positions without violating her right to security of tenure. Indeed, petitioner has no vested right to the position of Schools Division Superintendent of Camarines Sur.

SUBIC BAY METROPOLITAN AUTHORITY vs. COMELEC

G.R. No. 125416 September 26, 1996FACTS: On March 13, 1992, Congress enacted RA. 7227 (The Bases Conversionand Development Act of 1992), which created the Subic EconomicZone. RA 7227 likewise created SBMA to implement the declarednational policy of converting the Subic military reservation intoalternative productive uses. On November 24, 1992, the American navy turned over the Subicmilitary reservation to the Philippines government. Immediately, petitioner commenced the implementation of its task, particularly thepreservation of the sea-ports, airport, buildings, houses and other installations left by the American navy. 

19

20

On April 1993, the Sangguniang Bayan of Morong , Bataan passed Pambayang Kapasyahan Bilang 10, Serye 1993, expressing therein itsabsolute concurrence, as required by said Sec. 12 of RA 7227, to jointhe Subic Special Economic Zone and submitted such to the Office of the President. On May 24, 1993, respondents Garcia filed a petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg.10, Serye 1993. The petition prayed for the following: a) to nullify Pambayang Kapasyang Blg. 10 for Morong to join the Subic Special Economi Zone, b) to allow Morong to join provided conditions are met. The Sangguniang Bayan ng Morong acted upon the petition by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines so amend certain provisions of RA 7227. Not satisfied, respondents resorted to their power initiative under the LGC of 1991. On July 6, 1993, COMELEC denied the petition for local initiative on the ground that the subject thereof was merely a resolution and not an ordinance.

On February 1, 1995, the President issued Proclamation No. 532 defining the metes and bounds of the SSEZ including therein the portion of the former naval base within the territorial jurisdiction of the Municipality of Morong. On June 18, 19956, respondent Comelec issued Resolution No. 2845and 2848 , adopting a "Calendar of Activities for local referendum and providing for "the rules and guidelines to govern the conduct of the referendum

On July 10, 1996, SBMA instituted a petition for certiorari  contesting the validity of Resolution No. 2848 alleging that public respondent isintent on proceeding with a local initiative that proposes an amendment of a national law ISSUE:1.WON Comelec committed grave abuse of discretion in promulgatingResolution No. 2848 which governs the conduct of the referendum proposing to annul or repeal Pambayang Kapasyahan Blg. 10 2. WON the questioned local initiative covers a subject within the powersof the people of Morong to enact; i .e., whether such initiative "seeksthe amendment of a national law."

HELD:1.YES. COMELEC committed grave abuse of discretion. FIRST. The process started by private respondents was an INITIATIVE but respondent Comelec made preparations for a REFERENDUM only. In fact, in the body of the Resolution as reproduced in the footnote below, the word "referendum" is repeated at least 27 times, but "initiative" is not mentioned at all. The Comelec labeled the exercise as a "Referendum"; the counting of votes was entrusted to a "Referendum Committee"; the documents were called "referendum returns"; the canvassers,

20

21

"Referendum Board of Canvassers" and the ballots themselves bore the description "referendum". To repeat, not once was the word "initiative" used in saidbody of Resolution No. 2848. And yet, this exercise is unquestionably an INITIATIVE.As defined, Initiative is the power of the people to propose bills and laws, and to enact or reject them at the polls independent of the legislative assembly. On the other hand, referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of electors become a law. In initiative and referendum, the Comelec exercises administration and supervision of the process itself, akin to its powers over the conduct of elections.These law-making powers belong to the people, hence the respondent Commission cannot control or change the substance or the content of legislation.

 2. The local initiative is NOT ultra vires because the municipal resolution is still in the proposal stage and not yet an approved law. The municipal resolution is still in the proposal stage. It is not yet an approved law. Should the people reject it, then there would be nothing to contest and to adjudicate. It is only when the people have voted for it and it has become an approved ordinance or resolution that rights and obligations can be enforced or implemented thereunder. At this point, it is merely a proposal and the writ or prohibition cannot issue upon a mere conjecture or possibility. Constitutionally speaking, courts may decide only actual controversies, not hypothetical questions or cases. In the present case, it is quite clear that the Court has authority to review Comelec Resolution No. 2848 to determine the commission of grave abuse of discretion. However, it does not have the same authority in regard to the proposed initiative since it has not been promulgated or approved, or passed upon by any "branch or instrumentality" or lower court, for that matter. The Commission on Elections itself has made no reviewable pronouncements about the issues brought by the pleadings. The Comelec simply included verbatim the proposal in its questioned Resolution No. 2848. Hence, there is really no decision or action made by a branch, instrumentality or court which this Court could take cognizance of and acquire jurisdiction over, in the exercise of its review powers.

21