Professional Documents
Culture Documents
D 12
D 12
VITUG, J.:
The determination of whether the Ombudsman under Republic Act ("R.A.")
No. 6770, 1 otherwise known as the Ombudsman Act of 1989, has been
divested of his authority to conduct administrative investigations over local
elective officials by virtue of the subsequent enactment of R.A. No.
7160, 2 otherwise known as the Local Government Code of 1991, is the
pivotal issue before the Court in this petition.
The petition seeks (a) to annul the writ of preliminary injunction, dated 21
October 1992, issued against petitioner by respondent trial court and (b) to
prohibit said court from further proceeding with RTC Case No. MDE-14. 3
Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed
the office of Juan Hagad, now resigned, 4 who took the initiative in
instituting this special civil action for certiorari and prohibition.
The controversy stemmed from the filing of criminal and administrative
complaints, on 22 July 1992, against herein respondents Mayor Alfredo
Ouano, Vice-Mayor Paterno Caete and Sangguniang Panlungsod Member
Rafael Mayol, all public officials of Mandaue City, by Mandaue City
Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of
the Deputy Ombudsman for the Visayas. The respondents were charged
with having violated R.A. No. 3019, as amended, 5 Articles 170 6 and
171 7 of the Revised Penal Code; and R.A. No. 6713. 8Councilors Dionson
and Bercede averred that respondent officials, acting in conspiracy, had
caused the alteration and/or falsification of Ordinance No. 018/92 by
increasing the allocated appropriation therein from P3,494,364.57 to
P7,000,000.00 without authority from the Sangguniang Panlungsod of
Mandaue City. The complaints were separately docketed as Criminal Case
No. OMB-VIS-92-391 and as Administrative Case No. OMB-VIS-ADM-92-015.
12
Respondent officials, upon the other hand, argue that the disciplinary
authority of the Ombudsman over local officials must be deemed to have
been removed by the subsequent enactment of the Local Government
Code of 1991 which vests the authority to investigate administrative
charges, listed under Section 60 15 thereof, on various offices. In the case
specifically of complaints against elective officials of provinces and highly
urbanized cities, the Code states:
Sec. 61. Form and Filing of Administrative Complaints. A
verified complaint against any erring local elective officials
shall be prepared as follows:
(a) A complaint against any elective official of a province, a
highly urbanized city, an independent component city or
component city shall be filed before the Office of the
President.
Thus respondents insist, conformably with Section 63 of the Local
Government Code, preventive suspension can only be imposed by:
". . . the President if the respondent is an elective official of a
province, a highly urbanized or an independent component
city; . . . " under sub-paragraph (b) thereof:
(b) Preventive suspension may be imposed at any time
after the issues are joined, when the evidence of guilt is
strong, and given the gravity of the offense, there is great
probability that the continuance in office of the respondent
could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence; Provided,
That, any single preventive suspension of local elective
officials shall not extend beyond sixty (60)
days: Provided, further, That in the event that several
administrative cases are filed against an elective official,
he cannot be preventively suspended for more than ninety
(90) days within a single year on the same ground or
grounds existing and known at the time of the first
suspension.
In his comment, which the Court required considering that any final
resolution of the case would be a matter of national concern, the SolicitorGeneral has viewed the Local Government Code of 1991 as having
conferred, but not on an exclusive basis, on the Office of the President (and
the various Sanggunians) disciplinary authority over local elective officials.
He posits the stand that the Code did not withdraw the power of the
Ombudsman theretofore vested under R.A. 6770 conformably with a
constitutional mandate. In passing, the Solicitor General has also opined
that the appropriate remedy that should have been pursued by respondent
officials is a petition for certiorari before this Court rather than their
petition for prohibition filed with the Regional Trial Court.
Indeed, there is nothing in the Local Government Code to indicate that it
has repealed, whether expressly or impliedly, the pertinent provisions of
the Ombudsman Act. The two statutes on the specific matter in question
are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other . Well settled is the rule that repeals
of laws by implication are not favored, 16 and that courts must generally
assume their congruent application. 17 The two laws must be absolutely
incompatible, 18 and a clear finding thereof must surface, before the
inference of implied repeal may be drawn. 19 The rule is expressed in the
maxim, interpretare et concordare legibus est optimus interpretendi, i.e.,
every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. 20 The fundament is that
the legislature should be presumed to have known the existing laws on the
subject and not to have enacted conflicting statutes. 21 Hence, all doubts
must be resolved against any implied repeal, 22and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject. 23
Certainly, Congress would not have intended to do injustice to the very
reason that underlies the creation of the Ombudsman in the 1987
Constitution which "is to insulate said office from the long tentacles of
officialdom." 24
Quite interestingly, Sections 61 and 63 of the present Local Government
Code run almost parallel with the provisions then existing under the old
code. Section 61 and Section 63 of the precursor local Government Code of
1983, 25 under the heading of "Suspension and Removal," read:
Sec. 61. Form and Filing of Complaints. Verified
complaints against local elective officials shall be prepared
as follows:
(a) Against any elective provincial or city official, before the
Minister of Local Government.
Sec. 63. Preventive Suspension. (1) Preventive
suspension may be imposed by the Minister of Local
Government if the respondent is a provincial or city official,
by the provincial governor if the respondent is an elective
municipal official, or by the city or municipal mayor if the
respondent is an elective barangay official.
(2) Preventive suspension may be imposed at any time
after the issues are joined, when there is reasonable
the witnesses or pose a threat to the safety and integrity of the records
and other evidence.
Respondent officials, nevertheless, claim that petitioner committed grave
abuse of discretion when he caused the issuance of the preventive
suspension order without any hearing.
The contention is without merit. The records reveal that petitioner issued
the order of preventive suspension after the filing (a) by respondent
officials of their opposition on the motion for preventive suspension and (b)
by Mayor Ouano of his memorandum in compliance with the directive of
petitioner. Be that, as it may, we have heretofore held that, not being in
the nature of a penalty, a preventive suspension can be decreed on an
official under investigation after charges are brought and even before the
charges are heard. Naturally, such a preventive suspension would occur
prior to any finding of guilt or innocence. In the early case of Nera
vs. Garcia, 26 reiterated in subsequent cases,27 we have said:
In connection with the suspension of petitioner before he
could file his answer to the administrative complaint,
suffice it to say that the suspension was not a punishment
or penalty for the acts of dishonesty and misconduct in
office, but only as a preventive measure. Suspension is a
preliminary step in an administrative investigation. If after
such investigation, the charges are established and the
person investigated is found guilty of acts warranting his
removal, then he is removed or dismissed. This is the
penalty. There is, therefore, nothing improper in
suspending an officer pending his investigation and before
the charges against him are heard and be given an
opportunity to prove his innocence.
All told, petitioner is plainly entitled to the relief prayed for, and we must,
accordingly; grant the petition.
WHEREFORE, the questioned writ of preliminary injunction of 21 October
1992 is ANNULLED and SET ASIDE, and RTC Case No. MDE-14 is hereby
ordered DISMISSED. No costs.
SO ORDERED.
The Case
This is a petition for review[1] of the 8 May 2006 Decision [2] of the Court of
Appeals in CA-G.R. SP No. 00528 setting aside for lack of jurisdiction the 21
September 2004 Decision[3] of the Ombudsman (Visayas) in OMB-V-A-030511-H.
complaint
the sangguniang bayan on the ground that they wanted to prioritize the
Rosario,
2003,
mayor Jose G. Yulo, received a similar complaint [5] against Rodriguez for
admitted they violated the rule against forum shopping and claimed they
neglect of duty.
Binalbagan,
Negros
Occidental. On
September
filed
in
the sangguniang
bayan. On
29
October
2003,
Rodriguez to submit his answer within 15 days from receipt of the notice.
On 23 September 2003, Rodriguez filed a motion to dismiss [7] the case filed
In its 29 January 2004 order, [16] the Ombudsman directed both parties to
complaint were without factual basis and did not constitute any violation of
law.
[17]
Rodriguez alleged
In his position paper, Rodriguez insisted that the sangguniang bayan still
pendentia and
the sangguniang
September 2003.
complaint
forum
shopping.
He
alleged
that
filed
in
the sangguniang
bayan. In
reply,[19] complainants
bayan since the latter had granted their motion to withdraw the complaint.
date. When the case was called again for hearing, complainants counsel
dismissing the case filed against him was not valid because only the vice-
[11]
The
appellate
court
noted
that
the sangguniang
bayan served
on
Rodriguez filed in the Court of Appeals a petition for review with prayer for
the issuance of a temporary restraining order.
In its 8 May 2006 Decision,[25] the Court of Appeals set aside for lack of
bayan.
court
reasoned that
when
they
filed
identical
complaints
in
two
disciplining
The Issues
The issues submitted for resolution are (1) whether complainants violated
the rule against forum shopping when they filed in the Ombudsman and
the Sandiganbayan.
acquired jurisdiction.
In
cases
cognizable
by
regular
courts,
the
positions
corresponding
to
salary
grade
27
and
Under Republic Act No. 7160, otherwise known as the Local Government
xxxx
administrative
cases
against
The facts in the present case are analogous to those in Laxina, Sr. v.
Ombudsman,[29] which likewise involved identical administrative complaints
filed in both the Ombudsman and the sangguniang panlungsod against
a punong barangay for grave misconduct. The Court held therein that the
rule against forum shopping applied only to judicial cases or proceedings,
not to administrative cases. [30] Thus, even if complainants filed in the
Ombudsman and the sangguniang bayan identical complaints against
private respondent, they did not violate the rule against forum shopping
because their complaint was in the nature of an administrative case.
bayan has
no
power
to
remove
an
elective barangay official. Apart from the Ombudsman, only a proper court
may
do
so.[33] Unlike
the sangguniang
bayan, the
powers
of
the
No pronouncement as to costs.
SO ORDERED.
10
DECISION
Percentage
KAPUNAN, J.:
Accomplished
Petitioners Conrado B. Rodrigo and Reynaldo G. Mejica are the Mayor
and Municipal Planning and Development Coordinator, respectively, of San
Nicolas, Pangasinan, while petitioner Alejandro A. Facundo is the former
Municipal Treasurer of the same municipality.
On 15 June 1992, the Municipality of San Nicolas, represented by
Mayor Rodrigo, entered into an agreement with Philwood Construction,
represented by Larry Lu, for the electrification of Barangay Caboloan, San
Nicolas, for the sum of P486,386.18, requiring:
1. Installation of the two (2) units diesel power generator (20) KVA, 220 W,
Battery start and other accessories);
Amount paid
P452,825.53
93.0090%
(accdg. to Meji
P291,915.07
60.0171%
(accdg. to COA
P160,910.46
33.08%
(difference)
By Municipality
Cost of Actual
Accomplishment
Amount
Disallowed
11
The first ground raises two issues: (1) whether petitioners right to due
process was violated by the filing of the complaint against them by the
Provincial Auditor, and (2) whether the Ombudsman committed grave
abuse of discretion in filing the information against petitioners. The second
questions the jurisdiction of the Sandiganbayan over petitioners. The third
and fourth grounds are related to the first and are subsumed thereunder.
12
13
14
(5) All other national and local officials classified as Grade 27 and higher
under the Compensation and Position Classification Act of 1989.
15
One is given the impression that only lowly government workers or the socalled small fry are expediently tried and convicted by
the Sandiganbayan. The reason for this is that at present,
the Sandiganbayanhas the exclusive and original jurisdiction over graft
cases committed by all officials and employees of the government,
irrespective of rank and position, from the lowest-paid janitor to the highlyplaced government official. This jurisdiction of the Sandiganbayan must be
modified in such a way that only those occupying high positions in the
government and the military (the big fishes) may fall under its
exclusive and original jurisdiction. In this was, the Sandiganbayan can
devote its time to big time cases involving the big fishes in the
government. The regular courts will be vested with the jurisdiction of cases
involving less-ranking officials (those occupying positions corresponding to
salary grade twenty-seven (27) and below and PNP members with a rank
lower than Senior Superintendent. This set-up will prove more convenient
to people in the provinces. They will no longer have to travel to Manila to
file their complaint or to defend themselves. They can already file their
complaint or their defense before the Regional Trial Court or the Municipal
Trial Court in their respective localities, as the case may be.
(5) All other national and local officials classified as Grade 27 and higher
under the Compensation and Position Classification Act of 1989.
Earlier, in the 1989 version of the same Index, the Municipal Mayor was
also assigned a Salary Grade of 27. It appears, therefore, that petitioner
Mayor comes within the exclusive and original jurisdiction of the
Sandiganbayan.
To distinguish the big fish from the small fry, Congress deemed the
27th Grade as the demarcation between those who should come under the
jurisdiction of the Sandiganbayan and those within the regular
courts. (While H.B. No. 9825 originally intended only officials of Grade 28
and above as within the exclusive and original jurisdiction of the
Sandiganbayan, the resulting law included officials of Grade 27.) Thus,
officials occupying positions of Grade 27 and above, charged with crimes
referred to in Section 4 a. and b., are within the original and exclusive
jurisdiction of the Sandiganbayan; those below come under the jurisdiction
of the regular courts.
Although some positions of Grade 27 and above are stated by name in
Section 4 a., the position of Municipal Mayor is not among
them. Nevertheless, Congress provided a catchall in Section 4 a. (5), thus:
16
Xxx
Petitioners conclude that Mayor Rodrigo, at the time of the commission of
the alleged crime, was occupying a Grade 24 position and, thus, not within
the Sandiganbayans original and exclusive jurisdiction, as defined in
Section 2 of R.A. No. 7975.
This is a simplistic, and altogether incorrect, interpretation of the law.
Section 5, Article IX-C of the Constitution provides that:
The Congress shall provide for the standardization of compensation of
government officials and employees, including those in government-owned
or controlled corporation with original charters, taking into account the
nature of the responsibilities pertaining to, and the qualifications required
for their positions.
This provision is not unique to the 1987 Constitution. The 1973
Constitution, in Section 6, Article XII thereof, contains a very similar
provision pursuant to which then President Marcos, in the exercise of his
legislative powers, issued Presidential Decree No. 985. [32]
However, with the advent of the new Constitution, and in compliance
therewith, Congress enacted R.A. No. 6758. Section 2 thereof declares it
the policy of the State to provide equal pay for substantially equal work
and to base differences in pay upon substantive differences in duties and
responsibilities, and qualification requirements of the positions."
To give life to this policy, as well as the constitutional prescription to
(take) into account the nature of the responsibilities pertaining to, and the
qualifications required for the positions of government officials and
employees, Congress adopted the scheme employed in P.D. No. 985 for
classifying positions with comparable responsibilities and qualifications for
the purpose of according such positions similar salaries. This scheme is
known as the Grade, defined in P.D. No. 985 as:
17
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SEC. 19. Funding Source. The funding sources for the amounts necessary
to implement this Act shall be as follows:
20
(a) x x x
(b) For local government units, the amount shall be charged against their
respective funds. Local government units which do not have adequate or
sufficient funds shall only partially implement the established rates as may
be approved by the Joint Commission under Section 8 of Presidential
Decree No. 1188: Provided, That any partial implementation shall be
uniform and proportionate for all positions in each local government
unit: Provided further, That savings from National Assistance to Local
Government Units (NALGU) funds may be used for this purpose.
x x x. (Underscoring supplied.)
Thus, a local government officials actual salary may be less than what
the Salary Schedule under Section 7 prescribes, depending on the class
and financial capability of his or her respective local government unit. This
circumstance, however, has no bearing on such officials Grade. As the
foregoing discussion shows, on officials salary is determined by the
Grade accorded his position, andultimately by the nature of his
position the level of difficulty and responsibilities and level of qualification
requirements of the work. To give credence to petitioners argument that
Mayor Rodrigos salary determines his Grade would be to misconstrue the
provisions of R.A. No. 6758, and ignore the constitutional and statutory
policies behind said law.
Petitioner mayors position having been classified as Grade 27 in
accordance with R.A. No. 6758, and having been charged with violation of
Section 3 (e) of R.A. No. 3019, petitioner is subject to the jurisdiction of the
Sandiganbayan, as defined by Section 4 a. of P.D. No. 1606, as amended
by Section 2 of R.A. No. 7975. By virtue of the same Section 4 a., as
amended, his co-accused are also subject to the Anti-Graft Courts
jurisdiction.
WHEREFORE, the petition is hereby DISMISSED and the Temporary
Restraining Order issued by this Court on 28 August 1996 LIFTED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, and Pardo, JJ., concur.
21
22
"CONTRARY TO LAW.
23
On July 10, 1995, petitioner filed with the Sandiganbayan, Third Division, a
motion to dismiss or transfer Criminal Case No. 19763 to the Regional Trial
Court, Sindangan, Zamboanga.
6758 and the Index of Occupational Services, Position Titles and Salary
Grades. An officials grade is not a matter of proof, but a matter of law
which the court must take judicial notice."[20]
On the same date, petitioner filed with the Sandiganbayan, First Division, a
motion to refer Criminal Case No. 22655 to the Regional Trial Court,
Sindangan, Zamboanga.
Section 444 (d) of the Local Government Code provides that "the municipal
mayor shall receive a minimum monthly compensation corresponding to
Salary Grade twenty-seven (27) as prescribed under Republic Act No. 6758
and the implementing guidelines issued pursuant thereto." Additionally,
both the 1989 and 1997 versions of the Index of Occupational Services,
Position Titles and Salary Grades list the municipal mayor under Salary
Grade 27.[21] Consequently, the cases against petitioner as municipal
mayor for violations of Republic Act No. 3019, as amended, are within the
exclusive jurisdiction of the Sandiganbayan.
Petitioner averred that the enactment of Republic Act No. 7975 divested
the Sandiganbayan of its jurisdiction over criminal cases against municipal
mayors for violations of Republic Act No. 3019, as amended, who receive
salary less than that corresponding to Grade 27, pursuant to the Index of
Occupational Services prepared by the Department of Budget and
Management (DBM).
On September 7, 1995, the Sandiganbayan, First Division
denied the
motion to refer Criminal Case No. 22655 to the Regional Trial Court. On
October 10, 1995, the Sandiganbayan denied petitioners motion for
reconsideration.[12]
[11]
On September 14, 1995, Sandiganbayan, Third Division [13] also denied the
motion to transfer Criminal Case No. 19763 to the Regional Trial Court.
24
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula,
Cabanatuan City who won during the last regular barangay election in
1994. A petition for his recall as Punong Barangay was filed by the
registered voters of the barangay. Acting on the petition for recall, public
respondent Commission on Elections (COMELEC) resolved to approve the
petition, scheduled the petition signing on October 14, 1995, and set the
recall election on November 13,
1995. 1 At least 29.30% of the registered voters signed the petition, well
above the 25% requirement provided by law. The COMELEC, however,
deferred the recall election in view of petitioner's opposition. On December
6, 1995, the COMELEC set anew the recall election, this time on December
16, 1995. To prevent the holding of the recall election, petitioner filed
before the Regional Trial Court of Cabanatuan City a petition for injunction,
docketed as SP Civil Action No. 2254-AF, with the trial court issuing a
temporary restraining order. After conducting a summary hearing, the trial
court lifted the restraining order, dismissed the petition and required
petitioner and his counsel to explain why they should not be cited for
contempt for misrepresenting that the barangay recall election was without
COMELEC approval. 2
In a resolution dated January 5, 1996, the COMELEC, for the third time, rescheduled the recall election an January 13, 1996; hence, the instant
petition for certiorari with urgent prayer for injunction. On January 12,
1996, the Court issued a temporary restraining order and required the
Office of the Solicitor General, in behalf of public respondent, to comment
on the petition. In view of the Office of the Solicitor General's manifestation
maintaining an opinion adverse to that of the COMELEC, the latter through
its law department filed the required comment. Petitioner thereafter filed a
reply. 3
EN BANC
25
which states that "no recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year immediately
preceding a regular local election", petitioner insists that the scheduled
January 13, 1996 recall election is now barred as the Sangguniang
Kabataan (SK) election was set by Republic Act No. 7808 on the first
Monday of May 1996, and every three years thereafter. In support thereof,
petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA
621, where the Court considered the SK election as a regular local election.
Petitioner maintains that as the SK election is a regular local election,
hence no recall election can be had for barely four months separate the SK
election from the recall election. We do not agree.
[Emphasis added]
It is a rule in statutory construction that every part of the statute must be
interpreted with reference to the context,i.e., that every part of the statute
must be considered together with the other parts, and kept subservient to
the general intent of the whole enactment. 4 The evident intent of Section
74 is to subject an elective local official to recall election once during his
term of office. Paragraph (b) construed together with paragraph (a) merely
designates the period when such elective local official may be subject of a
recall election, that is, during the second year of his term of office. Thus,
subscribing to petitioner's interpretation of the phrase regular local
election to include the SK election will unduly circumscribe the novel
provision of the Local Government Code on recall, a mode of removal of
public officers by initiation of the people before the end of his term. And if
the SK election which is set by R.A No. 7808 to be held every three years
from May 1996 were to be deemed within the purview of the phrase
"regular local election", as erroneously insisted by petitioner, then no recall
election can be conducted rendering inutile the recall provision of the Local
Government Code.
In the interpretation of a statute, the Court should start with the
assumption that the legislature intended to enact an effective law, and the
legislature is not presumed to have done a vain thing in the enactment of a
statute. 5 An interpretation should, if possible, be avoided under which a
26
27
immediately preceding a regular local election," we ruled that for the time
bar to apply, the approaching regular local election must be one where the
position of the official to be recalled, is to be actually contested and filled
by the electorate. Thus, in the instant case where the time bar is being
invoked by petitioner mayor in view of the approaching Barangay Elections
in May 1997, there can be no application of the one year bar, hence no
invalidity may be ascribed to Resolution No. 96-2951 on this ground.
We, however, find petitioner's second ground to be impressed with merit.
Before the enactment of the 1991 Local Government Code, the recall of
public officials voted for in popular elections, was governed by Sections 54
to 59 of Batas Pambansa Blg. 337, otherwise known as the Local
Government Code of 1983. Pursuant to Section 59 thereof, which states
that "the Commission on Elections shall conduct and supervise the process
of and election on recall . . . and, in pursuance thereof, promulgate the
necessary rules and regulations," the COMELEC promulgated Resolution
No. 2272 Sections 4 and 5 of which provide as follows:
Sec. 4. How instituted. The recall of an elective
provincial, city or municipal official shall be commenced by
the filing of a duly verified notice of recall containing the
address and precinct number of the voter filing the notice,
and the name of the official sought to be recalled, his
position, and the ground(s) for the recall. Each notice shall
refer to only one official.
The notice shall be filed in triplicate with the local Election
Registrar if the recall involves a city or municipal official, or
with the Provincial Election Supervisor if it involves a
provincial official, one copy of which shall be posted upon
receipt thereof on the bulletin board in the city/municipal
hall.
If the recall involves a provincial official, two additional
copies of the notice shall also be furnished by the voter
filing the notice to the Election Registrar of each city and
municipality in the province, one copy of which shall be
posted upon receipt thereof on the bulletin board in the
city/municipal hall.
In every case, the voter filing the notice of recall shall
furnish a copy thereof to the official sought to be recalled,
the Commission on Elections in Manila and the Election
Records and Statistics Department of the Commission.
28
29
30
A scrutiny of the rationale underlying the time bar provisions and the
percentage of minimum voter requirement in American recall statutes,
unmistakably reveals the vigilance of lawmakers against the abuse of the
power of recall. For instance, the Supreme Court of Illinois held in the case
of In Re Bower 19 that:
[t]he only logical reason which we can ascribe for requiring
the electors to wait one year before petitioning for a recall
election is to prevent premature action on their part in
voting to remove a newly elected official before having had
sufficient time to evaluate the soundness of his political
policies and decisions. We view the statutory provision
requiring the number of petition signers to equal at least
45% of the total votes case in the last general election for
mayor as a further attempt to insure that an official will not
have to defend his policies against frivolous attacks
launched by a small percentage of disenchanted
electors. 20
Along the same lines, the Supreme Court of Colorado held in the case
of Bernzen, v. City of Boulder 21 that:
[t]he framers, by requiring that a recall petition contain the
signatures of at least 25% of all votes cast in the last
election for all candidates for the position which the person
sought to be recalled occupies, assured that a recall
election will not be held in response to the wishes of a
small and unrepresentative minority. However, once at
least 25% of the electorate have expressed their
dissatisfaction, the constitution reserves the recall power
to the will of the electorate. 22
And in the case of Wallace v. Tripp 23, the Supreme Court of Michigan
echoed the foregoing posturings in this wise:
Much of what has been said to justify a limit upon recall
clearly not provided or contemplated by the Constitution
has revealed fears about an irresponsible electorate . . . . A
much cited Nebraska case pertaining to a Nebraska recall
statute provides some answers which are equally
applicable to the Michigan constitutional right of recall:
31
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Francisco, Panganiban and Torres, Jr., JJ., concur.
32
33
assumption of office, the recall was validly initiated outside the one-year
prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term "recall"
as used in 74 refers to a process. They disagree only as to when the
process starts for purposes of the one-year limitation in paragraph (b) of
74.
We can agree that recall is a process which begins with the convening of
the preparatory, recall assembly or the gathering of the signatures at least
25% of the registered voters of a local government unit, and then proceeds
to the filing of a recall resolution or petition with the COMELEC, the
verification of such resolution or petition, the fixing of the date of the recall
election, and the holding of the election on the scheduled date. [5] However,
as used in paragraph (b) of 74, "recall" refers to the election itself by
means of which voters decide whether they should retain their local official
or elect his replacement. Several reasons can be cited in support of this
conclusion.
First, 74 deals with restrictions on the power of recall. It is in fact entitled
"Limitations on Recall." On the other hand, 69 provides that "the power of
recall ...shall be exercised by the registered voters of a local government
unit to which the local elective official belongs." Since the power vested on
the electorate is not the power to initiate recall proceedings [6] but the
power to elect an official into office, the limitations in 74 cannot be
deemed to apply to the entire recall proceedings. In other words, the term
"recall" in paragraph (b) refers only to the recall election, excluding the
convening of the PRA and the filing of a petition for recall with the
COMELEC, or the gathering of the signatures of at least 25 % of the voters
for a petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan Province in
1993) or petitions for recall filed with the COMELEC - there is no legal limit
on the number of times such processes may be resorted to. These are
merely preliminary steps for the purpose of initiating a recall. The
limitations in 74 apply only to the exercise of the power of recall which is
vested in the registered voters. It is this - and not merely, the preliminary
steps required to be taken to initiate a recall - which paragraph (b) of 74
seeks to limit by providing that no recall shall take place within one year
from the date of assumption of office of an elective local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC where two
objections were raised against the legality of PRAs: (1) that even the power
to initiate recall proceedings is the sole prerogative of the electorate which
cannot be delegated to PRAs, and (2) that by vesting this power in a PRA,
the law in effect unconstitutionally authorizes it to shorten the term of
office of incumbent elective local officials. Both objections were dismissed
[7]
on the ground that the holding of a PRA is not the recall itself. With respect
to the first objection, it was held that it is the power to recall and not the
power to initiate recall that the Constitution gave to the people. With
respect to the second objection, it was held that a recall resolution "merely
sets the stage for the official concerned before the tribunal of the people
so he can justify why he should be allowed to continue in office. [But until]
the people render their sovereign judgment, the official concerned remains
in office . . . ." Sdaadsc
If these preliminary proceedings do not produce a decision by the
electorate on whether the local official concerned continues to enjoy the
confidence of the people, then, the prohibition in paragraph (b) against the
holding of a recall, except one year after the official's assumption of office,
cannot apply to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to recall
election is to be found in the purpose of the limitation itself. There are two
limitations in paragraph (b) on the holding of recalls: (1) that no recall shall
take place within one year from the date of assumption of office of the
official concerned, and (2) that no recall shall take place within one year
immediately preceding a regular local election.
The purpose of the first limitation is to provide a reasonable basis for
judging the performance of an elective local official. In
the Bower case[8] cited by this Court in Angobung v. COMELEC,[9] it was held
that "The only logical reason which we can ascribe for requiring the
electors to wait one year before petitioning for a recall election is to
prevent premature action on their part in voting to remove a newly elected
official before having had sufficient time to evaluate the soundness of his
policies and decisions." The one-year limitation was reckoned as of the
filing of a petition for recall because the Municipal Code involved in that
case expressly provided that "no removal petition shall be filed against any
officer or until he has actually held office for at least twelve months." But
however the period of prohibition is determined, the principle announced is
that the purpose of the limitation is to provide a reasonable basis for
evaluating the performance of an elective local official. Hence, in this case,
as long as the election is held outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before the end of the first
year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated before
the official concerned has been in office for one-year would be to allow him
to be judged without sufficient basis. As already stated, it is not the holding
of PRA nor the adoption of recall resolutions that produces a judgment on
the performance of the official concerned; it is the vote of the electorate in
the Election that does. Therefore, as long as the recall election is not held
34
before the official concerned has completed one year in office, he will not
be judged on his performance prematurely.Rtcspped
Third, to construe the term "recall" in paragraph (b) as including the
convening of the PRA for the purpose of discussing the performance in
office of elective local officials would be to unduly restrict the constitutional
right of speech and of assembly of its members. The people cannot just be
asked on the day of the election to decide on the performance of their
officials. The crystallization and formation of an informed public opinion
takes time. To hold, therefore, that the first limitation in paragraph (b)
includes the holding of assemblies for the exchange of ideas and opinions
among citizens is to unduly curtail one of the most cherished rights in a
free society. Indeed, it is wrong to assume that such assemblies will always
eventuate in a recall election. To the contrary, they may result in the
expression of confidence in the incumbent.
Our esteemed colleague Justice Puno says in his dissent that the purpose
of the one-year period in paragraph (b) is to provide the local official
concerned a "period of repose" during which "[his] attention should not be
distracted by any impediment, especially by disturbance due to political
partisanship." Unfortunately, the law cannot really provide for a period of
honeymoon or moratorium in politics. From the day an elective official
assumes office, his acts become subject to scrutiny and criticism, and it is
not always easy to determine when criticism of his performance is
politically motivated and when it is not. The only safeguard against the
baneful and enervating effects of partisan politics is the good sense and
self restraint of the people and its leaders against such shortcomings of our
political system. A respite from partisan politics may, have the incidental
effect of providing respite from partisanship, but that is not really the
purpose of the limitation on recall under the law. The limitation is only
intended to provide a sufficient basis for evaluating and judging the
performance of an elected local official.
In any event, it is argued that the judgments of PRAs are not "as politically
unassailable as recalls initiated directly by the people." Justice Puno cites
the "embarrassing repudiation by the people of [Kaloocan City's]
Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo,
they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing election
the local official whose recall is sought is actually reelected. Laws
converting municipalities into cities and providing for the holding of
plebiscites during which the question of cityhood is submitted to the
people for their approval are not always approved by the people. Yet, no
one can say that Congress is not a good judge of the will of the voters in
the locality. In the case of recall elections in Kaloocan City, had it been
shown that the PRA was resorted to only because those behind the move
to oust the incumbent mayor failed to obtain the signatures of 25% of the
voters of that city to a petition for his recall, there may be some plausibility
for the claim that PRAs are not as good a gauge of the people's will as are
the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a local
government unit cannot be more representative of the sentiments of the
people than those initiated by PRAs whose members represent the entire
electorate in the local government unit. Voters who directly initiate recalls
are just as vulnerable to political maneuverings or manipulations as are
those composing PRAs. Korte
The other point regarding Justice Punos claim is that the question here is
not whether recalls initiated by 25% of the voters are better. The issue is
whether the one-year period of limitation in paragraph (b) includes the
convening of the PRA. Given that question, will convening the PRA outside
this period make it any more representative of the people, as the petition
filed by 25 % of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to the recall election
and not to the preliminary proceedings to initiate recall 1. Because 74 speaks of limitations on "recall" which, according to 69, is a
power which shall be exercised by the registered voters of a local
government unit. Since the voters do not exercise such right except in an
election, it is clear that the initiation of recall proceedings is not prohibited
within the one-year period provided in paragraph (b);
2. Because the purpose of the first limitation in paragraph (b) is to provide
voters a sufficient basis for judging an elective local official, and final
judging is not done until the day of the election; and
3. Because to construe the limitation in paragraph (b) as including the
initiation of recall proceedings would unduly curtail freedom of speech and
of assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than one
year after petitioner assumed office as mayor of that city, we hold that
there is no bar to its holding on that date.
(2)
35
such election more than once during the term of office of an elective local
official. Second, paragraph (b) prohibits the holding of such election within
one year from the date the official assumed office. And third, paragraph (b)
prohibits the holding of a recall election within one year immediately
preceding a regular local election. As succinctly stated in Paras v.
COMELEC,[12] "[p]aragraph (b) construed together with paragraph (a)
merely designates the period when such elective local official may be
subject to recall election, that is, during the second year of office."
(3)
On Whether the Recall RESOLUTION
was Signed by a Majority of the PRA
and Duly Verified
Petitioner alleges other grounds for seeking the annulment of the
resolution of the COMELEC ordering the holding of a recall election. He
contends that a majority of the signatures of the members of the PRA was
not obtained because 74 members did not really sign the recall resolution.
According to petitioner, the 74 merely signed their names on pages 94104 of the resolution to signify their attendance and not their concurrence.
Petitioner claims that this is shown by the word "Attendance" written by
hand at the top of the page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised for the
first time in this case. It was not raised before the COMELEC, in which the
claim made by petitioner was that some of the names in the petition were
double entries, that some members had withdrawn their support for the
petition, and that Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved before the petition for
recall could be given due course. The order of the COMELEC embodying
the stipulations of the parties and defining the issues to be resolved does
not include the issue now being raised by petitioner. Xlaw
Although the word "Attendance" appears at the top of the page, it is
apparent that it was written by mistake because it was crossed out by two
parallel lines drawn across it. Apparently, it was mistaken for the
attendance sheet which is a separate document. It is absurd to believe that
the 74 members of the PRA who signed the recall resolution signified their
attendance at the meeting twice. It is more probable to believe that they
signed pages 94-104 to signify their concurrence in the recall resolution of
which the pages in question are part.
The other point raised by petitioner is that the recall petition filed in the
COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it,
is not commissioned as notary public for Pasay City but for Makati City. As
36
in the case of the first claim, this issue was not raised before the COMELEC
itself. It cannot, therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the
petition in G.R. No. 140714 is DISMISSED for having been rendered moot
and academic.
SO ORDERED. MENDOZA, J
Davide, Jr., C.J., Bellosillo, Quisumbing, Buena, GonzagaReyes, and Ynares-Santiago, JJ., concur.
Melo, and Purisima, JJ., on leave.
Puno, J., see dissenting opinion.
Vitug, J., reiterate his separate opinion in the resolution of 5 Apr. 2000.
Kapunan, J., see attached separate and dissenting opinion.
Panganiban, J., joined the dissents of JJ. Puno and Kapunan. Xsc
Pardo, and De Leon, Jr., JJ., join the dissent of J. Puno.
FIRST DIVISION
WILFREDO M. CATU, A.C. No. 5738
Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
ATTY. VICENTE G. RELLOSA,
Respondent. Promulgated:
February 19, 2008
x--------------------------------------------------x
RESOLUTION
CORONA, J.:
37
erected thereon located at 959 San Andres Street, Malate, Manila. His
mother and brother, Regina Catu and Antonio Catu, contested the
against Elizabeth and Pastor. As head of the Lupon, he performed his task
units in the building. The latter ignored demands for them to vacate the
parties. The parties, however, were not able to amicably settle their
Tagapamayapa of
dispute and Regina and Antonio filed the ejectment case. It was then that
Barangay
723,
Zone
79
of
the
5th District
of
The complaint was referred to the Integrated Bar of the Philippines (IBP) for
lawyer and as a public officer when he stood as counsel for the defendants
complaint
of
Regina
and
Antonio
against
Elizabeth
and
Pastor.
38
CANON
1.
A
LAWYER
SHALL
UPHOLD
THE
CONSTITUTION, OBEY
THE
LAWS
OF
THE
LAND, PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES. (emphasis supplied)
ejectment case filed against them by Regina and Antonio. In the course
thereof, he prepared and signed pleadings including the answer with
suspension from the practice of law for one month with a stern warning
that the commission of the same or similar act will be dealt with more
Responsibility:
Rule 6.03 A lawyer shall not, after leaving
government service, accept engagement or employment
in connection with any matter in which he intervened
while in said service.
severely.[9] This was adopted and approved by the IBP Board of Governors.
[10]
lawyer who has left government service and in connection with any matter
[11]
39
an
offense
SECTION
90
OF
RA
7160, NOT SECTION 7(B)
(2)
OF
RA
6713,
GOVERNS THE PRACTICE
OF
PROFESSION
OF
ELECTIVE
LOCAL
GOVERNMENT
OFFICIALS
elective
local
government
officials,
Section
90
of
RA
specialibus derogat generalibus.[13]
7160[12] governs:
SEC. 90. Practice of Profession. (a) All governors,
city and municipal mayors are prohibited from practicing
their profession or engaging in any occupation other than
the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their
professions, engage in any occupation, or teach in
schools except during session hours: Provided,
That sanggunian members who are members of
the Bar shall not:
(1) Appear as counsel before any court in
any civil case wherein a local government unit or
any office, agency, or instrumentality of the
government is the adverse party;
40
permission or authorization from any other person or office for any of these
purposes.
governors,
mayors,
provincial
local chief executives. This is because they are required to render full time
service. They should therefore devote all their time and attention to the
the punong
barangay and
board
the
members
members
and
of
councilors)
are
the sangguniang
from any prohibition, the presumption is that they are allowed to practice
On
the
other
hand,
members
of
the sangguniang
their profession. And this stands to reason because they are not mandated
panlalawigan, sangguniang
panlungsod or sangguniang
bayan may
to serve full time. In fact, the sangguniang barangay is supposed to hold
hours.
mayors, members
the sangguniang
mayors
and
municipal
panlalawigan, sangguniang
service regulations.
only at least once a week.[14] Since the law itself grants them the authority
to practice their professions, engage in any occupation or teach in schools
outside session hours, there is no longer any need for them to secure prior
A
LAWYER
IN
GOVERNMENT SERVICE
WHO
IS
NOT
PROHIBITED
TO
PRACTICE LAW MUST
SECURE
PRIOR
AUTHORITY FROM THE
41
HEAD
OF
DEPARTMENT
HIS
The failure of respondent to comply with Section 12, Rule XVIII of the
to obey the laws. Lawyers are servants of the law, vires legis, men of the
private practice of law only with the written permission of the head of the
law. Their paramount duty to society is to obey the law and promote
department concerned.[17] Section 12, Rule XVIII of the Revised Civil Service
respect for it. To underscore the primacy and importance of this duty, it is
Rules provides:
In acting as counsel for a party without first securing the required written
permission, respondent not only engaged in the unauthorized practice of
law but also violated civil service rules which is a breach of Rule 1.01 of the
Code of Professional Responsibility:
Rule 1.01 A lawyer shall not engage in
unlawful, dishonest, immoral or deceitful conduct.
(emphasis supplied)
For not living up to his oath as well as for not complying with the exacting
ethical standards of the legal profession, respondent failed to comply with
Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD
THE INTEGRITY AND THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR. (emphasis supplied)
42
Office of the Court Administrator shall furnish copies to all the courts of the
irresponsible and improper conduct of a member of the bar. [18] Every lawyer
SO ORDERED.
respondent
Atty.
Vicente
G.
Rellosa
is
hereby
more severely.
Let a copy of this resolution be furnished the Office of the Bar Confidant
and entered into the records of respondent Atty. Vicente G. Rellosa. The
43
The records show that on March 17, 1989, the Regional Trial Court of Tanay,
Rizal, Branch 80, rendered judgment in Civil Case No. 057-T in favor of
plaintiff, now herein petitioner Municipality of Pililla, Rizal, against
defendant, now herein private respondent Philippine Petroleum Corporation
(PPC, for short), ordering therein defendant to pay said plaintiff (1) the
amount of P5,301,385.00 representing the tax on business due from the
defendant under Section 9(A) of Municipal Tax Ordinance No. 1 of said
municipality for the period from 1979 to 1983, inclusive, plus such amount
of tax as may accrue until final determination of the case; (2) storage
permit fee in the amount of P3,321,730.00 due from the defendant under
Section 10, paragraph Z(13)
(b-1-c) of the same municipal tax ordinance for the period from 1975 to
1986, inclusive, plus the amount of said fee that may accrue until final
determination of the case; (3) mayor's permit fee due from the defendant
under Section 10, paragraph (P) (2) of said municipal tax ordinance from
1975 to 1984, inclusive, in the amount of P12,120.00, plus such amount of
the same fee as may accrue until final determination of the case; (4)
sanitary inspection fee in the amount of P1,010.00 for the period from
1975 to 1984, plus the amount of this fee that may accrue until final
determination of the case; and (5) the costs of suit. 2
On June 3, 1991, in G.R. No. 90776 this Court affirmed the aforesaid
judgment, with the modification that business taxes accruing prior to 1976
are not to be paid by PPC because the same have prescribed, and that
storage fees are not also to be paid by PPC since the storage tanks are
owned by PPC and not by the municipality and, therefore, cannot be the
bases of a charge for service by the municipality. 3 This judgment became
final and executory on July 13, 1991 and the records were remanded to the
trial court for execution.
On October 14, 1991, in connection with the execution of said judgment,
Atty. Felix E. Mendiola filed a motion in behalf of plaintiff municipality with
the Regional Trial Court, Branch 78, Morong, Rizal* for the examination of
defendant corporation's gross sales for the years 1976 to 1978 and 1984
to 1991 for the purpose of computing the tax on business imposed under
the Local Tax Code, as amended. On October 21, 1991, defendant
corporation filed a manifestation to the effect that on October 18, 1991,
Pililla Mayor Nicomedes Patenia received from it the sum of
P11,457,907.00 as full satisfaction of the above-mentioned judgment of
the Supreme Court, as evidence by the release and quitclaim documents
executed by said mayor. Accordingly, on October 31, 1991 the court below
issued an order denying plaintiff municipality's motion for examination and
execution of judgment on the ground that the judgment in question had
already been satisfied. 4
Thereafter, on November 21, 1991 Atty. Mendiola filed a motion for
reconsideration of the court's aforesaid order of October 31, 1991, claiming
44
who has declined to handle and prosecute its case in court, pursuant to
Section 1679 of the Revised Administrative Code. 17
The contention of Atty. Mendiola that private respondent cannot raise for
the first time on appeal his lack of authority to represent the municipality is
untenable. The legality of his representation can be questioned at any
stage of the proceedings. In the cases hereinbefore cited, 19 the issue of
lack of authority of private counsel to represent a municipality was only
raised for the first time in the proceedings for the collection of attorney's
fees for services rendered in the particular case, after the decision in that
case had become final and executory and/or had been duly executed.
Furthermore, even assuming that the representation of the municipality by
Atty. Mendiola was duly authorized, said authority is deemed to have been
revoked by the municipality when the latter, through the municipal mayor
and without said counsel's participation, entered into a compromise
agreement with herein private respondent with regard to the execution of
the judgment in its favor and thereafter filed personally with the court
below two pleadings
entitled and constitutive of a "Satisfaction of Judgment" and a "Release and
Quitclaim". 20
A client, by appearing personally and presenting a motion by himself, is
considered to have impliedly dismissed his lawyer. Herein counsel cannot
pretend to be authorized to continue representing the municipality since
the latter is entitled to dispense with his services at any time. Both at
common law and under Section 26, Rule 138 of the Rules of Court, a client
may dismiss his lawyer at any time or at any stage of the proceedings, and
there is nothing
to prevent a litigant from appearing before the court to conduct his own
litigation. 21
The client has also an undoubted right to compromise a suit without the
intervention of his lawyer. 22 Even the lawyers' right to fees from their
clients may not be invoked by the lawyers themselves as a ground for
disapproving or holding in abeyance the approval of a compromise
agreement. The lawyers concerned can enforce their rights in the proper
court in an appropriate proceeding in accordance with the Rules of Court,
but said rights may not be used to prevent the approval of the compromise
agreement. 23
45
46
PANGANIBAN, J.:
Who has the legal authority to represent a municipality in law-suits? If an
unauthorized lawyer represents a municipality what is the effect of his
participation in the proceedings? Parenthetically, does a motion to
withdraw the appearance of the unauthorized counsel have to comply with
Rule 15 of the Rules of Court regarding notice and hearing of motions?
These questions are answered by this Court in resolving this petition for
review under Rule 45 of the Rules of Court of the Decision 1 of public
respondent 2 in CA-G.R. SP No. 23594 promulgated on March 15, 1991,
which denied due course to and dismissed the petition therein. Also
assailed is the Resolution 3 of public respondent promulgated on May 9,
1991, which denied the motion for reconsideration for lack of merit.
The Facts
The facts as found by public respondent are undisputed, to with: 4
On April 18, 1990, petitioners Antonio C. Ramos, Rosalinda
M. Perez, Norma C. Castillo, and the Baliuag Market
Vendors Association, Inc. filed a petition before the court a
quo docketed as Civil Case No. 264-M-9 for the Declaration
of Nullity of Municipal Ordinances No. 91 (1976) and No. 7
(1990) and the contract of lease over a commercial arcade
to be constructed in the municipality of Baliuag, Bulacan.
On April 27, 1980, during the hearing on the petitioners'
motion for the issuance of preliminary injunction, was
issued by the court a quo on May 9, 1990.
Meanwhile, on May 3, 1990, the provincial Fiscal and the
Provincial Attorney, Oliviano D. Regalado, filed an Answer
in (sic) behalf of respondent municipality.
47
48
49
Public respondent likewise found that the "joint motion does not partake of
the nature of an adversarial motion which would have rendered noncompliance with Sections 4 and 5 of Rule 15 of the Rules of Court fatal to
the motion." 9 It is to be emphasized that petitioners "sought the
disqualification of Atty. Romanillos . . . (Thus,) what petitioners had sought
to (be) achieve(d) in their said motion was in fact what Atty. Romanillos
had sought . . . in the joint motion dated August 22, 1990." 10
The different allegations boil down to three main issues: (1) Who is
authorized to represent a municipality in a civil suit against it? (2) What is
the effect on the proceedings when a private counsel represents a
municipality? Elsewise stated, may be the proceedings be validated by a
provincial attorney's adoption of the actions made by a private counsel?
(3) Does a motion of withdrawal of such unauthorized appearance, and
adoption of proceedings participated in by such counsel have to comply
with Sections 4 and 5 12 of Rule 15 of the Rules of Court?
The Court's Ruling
We affirm the Decision and Resolution of public respondent.
First Issue: Who is Authorized to Represent
a Municipality in its Lawsuits?
In the recent case of Municipality of Pililla, Rizal vs. Court of Appeals, 13 this
Court, through Mr. Justice Florenz D. Regalado, set in clear-cut terms the
answer to the question of who may legally represent a municipality in a
suit for or against it, thus: 14
. . . The matter of representation of a municipality by a
private attorney has been settled in Ramos vs.Court of
Appeals, et al., 15 and reiterated in Province of Cebu
vs. Intermediate Appellate Court, et al., 16where we ruled
50
The foregoing provisions of law and jurisprudence show that only the
provincial fiscal, provincial attorney, and municipal attorney should
represent a municipality in its lawsuits. Only in exceptional instances may
a private attorney be hired by a municipality to represent it in lawsuits.
These exceptions are enumerated in the case ofAlinsug vs. RTC Br. 58, San
Carlos City, Negros Occidental, 22 to wit: 23
Indeed, it appears that the law allows a private counsel to
be hired by a municipality only when the municipality is an
adverse party in a case involving the provincial
government or another municipality or city within the
province. This provision has its apparent origin in the ruling
in De Guia v. The Auditor General (44 SCRA 169, March 29,
1979) where the Court held that the municipality's
authority to employ a private attorney is expressly limited
only to situations where the provincial fiscal would be
disqualified to serve and represent it. With Sec. 1683 of the
old Administrative Code as legal basis, the Court therein
cited Enriquez, Sr. v. Gimenez [107 Phil 932 (1960)] which
enumerated instances when the provincial fiscal is
disqualified to represent in court a particular municipality;
if and when original jurisdiction of case involving the
municipality is vested in the Supreme Court, when the
municipality is a party adverse to the provincial
government or to some other municipality in the same
province, and when, in a case involving the municipality,
he, or his wife, or child, is pecuniarily involved, as heir
legatee, creditor or otherwise.
Thereafter, in Ramos vs. Court of Appeals (108 SCRA 728,
October 30, 1981), the Court ruled that a municipality may
not be represented by a private law firm which had
volunteered its services gratis, in collaboration with the
municipal attorney and the fiscal, as such representations
was violative of Sec. 1683 of the old Administrative
Code. This strict coherence to the letter of the law appears
to have been dictated by the fact that "the municipality
should not be burdened with expenses of hiring a private
lawyer" and that the interests of the municipality would be
best protected if a government lawyer handles its
litigations. (Emphasis supplied.)
None of the foregoing exceptions is present in this case. It may be said that
Atty. Romanillos appeared for respondent municipality inasmuch as he was
already counsel of Kristi Corporation which was sued with respondent
municipality in this same case. The order of the trial court dated
September 19, 1990, stated that Atty. Romanillos "entered his appearance
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SO ORDERED.
Narvasa, C.J., Davide, Melo and Francisco, JJ., concur.
PUNO, J.:
The 1987 Constitution is borne of the conviction that people power can be
trusted to check excesses of government. One of the means by which
people power can be exercised is thru initiatives where local ordinances
and resolutions can be enacted or repealed. An effort to trivialize the
effectiveness of people's initiatives ought to be rejected.
In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang
Bayan ng Morong, Bataan agreed to the inclusion of the municipality of
Morong as part of the Subic Special Economic Zone in accord with Republic
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Act
No. 7227.
On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan
of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The
petition states:
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original power to legislate through the process of initiative. Ours is the duty
to listen and the obligation to obey the voice of the people. It could well be
the only force that could foil the mushrooming abuses in government.
IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 931623 dated July 6, 1993 and Resolution 93-1676 dated July 13, 1993 are
ANNULLED and SET ASIDE. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Vitug, Kapunan and Mendoza, JJ., concur.
Feliciano, Padilla, Bidin, JJ., are on leave.
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