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CHAPTER IV - Disciplinary Actions

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

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of
the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang
barangay;
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of
another country; and
(h) Such other grounds as may be provided in this Code and other laws.

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

Section 61. Form and Filing of Administrative Complaints. - A verified complaint against any erring local
elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to the Office of the President; and

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod
or sangguniang bayan concerned whose decision shall be final and executory.

Section 62. Notice of hearing. -

(a) Within seven (7) days after the administrative complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require the respondent to submit his verified
answer within fifteen (15) days from receipt thereof, and commence the investigation of the case
within ten (10) days after receipt of such answer of the respondent.

(b) When the respondent is an elective official of a province or highly urbanized city, such hearing and
investigation shall be conducted in the place where he renders or holds office. For all other local
elective officials, the venue shall be the place where the sanggunian concerned is located.

(c) However, no investigation shall be held within ninety (90) days immediately prior to any local
election, and no preventive suspension shall be imposed within the said period. If preventive
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suspension has been imposed prior to the 90-day period immediately preceding local election, it
shall be deemed automatically lifted upon the start of aforesaid period.

Section 63. Preventive Suspension. -

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an
independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(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.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings against him, which shall
be terminated within one hundred twenty (120) days from the time he was formally notified of the
case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or
request, other than the appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.

(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of
authority.

Section 64. Salary of Respondent Pending Suspension. - The respondent official preventively suspended
from office shall receive no salary or compensation during such suspension; but upon subsequent
exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments
accruing during such suspension.

Section 65. Rights of Respondent. - The respondent shall be accorded full opportunity to appear and
defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to
require the attendance of witnesses and the production of documentary process of subpoena or
subpoena duces tecum.

Section 66. Form and Notice of Decision. -

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(a) The investigation of the case shall be terminated within ninety (90) days from the start thereof.
Within thirty (30) days after the end of the investigation, the Office of the President or the
sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and
the reasons for such decision. Copies of said decision shall immediately be furnished the
respondent and all interested parties.

(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office.

(c) The penalty of removal from office as a result of an administrative investigation shall be considered
a bar to the candidacy of the respondent for any elective position.

Section 67. Administrative Appeals. - Decisions in administrative cases may, within thirty (30) days from
receipt thereof, be appealed to the following:

(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod of
component cities and the sangguniang bayan; and

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities and independent component cities.

Decisions of the Office of the President shall be final and executory.

Section 68. Execution Pending Appeal. - An appeal shall not prevent a decision from becoming final or
executory. The respondent shall be considered as having been placed under preventive suspension
during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in
an exoneration, he shall be paid his salary and such other emoluments during the pendency of the
appeal.

RULE XIX Disciplinary Actions - IRR

ARTICLE 124. Grounds for Disciplinary Actions. —

(a) An elective local official may be censured, reprimanded, suspended, or removed from office after
due notice and hearing on any of the following grounds:
(1) Disloyalty to the Republic of the Philippines;
(2) Culpable violation of the Constitution;
(3) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(4) Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor which is from six (6) years and one (1) day to twelve (12) years imprisonment;
(5) Abuse of authority;
(6) Unauthorized absence for fifteen (15) consecutive working days, in the case of local chief executives
and four (4) consecutive sessions in case of members of the sangguniang panlalawigan, sangguniang
panlungsod, sangguniang bayan, and sangguniang barangay;
(7) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of
another country; and (8) Such other grounds as may be provided by the Code; RA 6713; RA 3019;
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Administrative Code of 1987; the Revised Penal Code and all other applicable general and special
laws. (b) An elective local official may be removed from office on the grounds enumerated in
paragraph (a) of this Article by order of the proper court or the disciplining authority whichever first
acquires jurisdiction to the exclusion of the other.

ARTICLE 125. Form and Filing of Administrative Complaints. — A verified complaint against any erring
elective local official shall be prepared and filed as follows:

(a) Against any elective official of a province, a highly-urbanized city, a component city, a municipality
within MMA, an independent component city, before the Office of the President;
(b) Against any elective official of a municipality, before the sangguniang panlalawigan whose decision
may be appealed to the Office of the President.
(c) Against any elective barangay official, before the sangguniang panlungsod or sangguniang bayan
concerned whose decision shall be final and executory.
Copies of the complaints shall be furnished the office of the governor, in the case of component
cities and municipalities, and in all cases, the DILG.

ARTICLE 126. Hearings. —

(a) Within seven (7) days after the administrative complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require the respondent to submit his verified answer
within fifteen (15) days from receipt thereof, and commence the investigation of the case within ten
(10) days after receipt of such answer of the respondent.

(1) Unreasonable failure of the respondent to file his verified answer within fifteen (15) days from
receipt of the complaint shall be considered a waiver of his rights to present evidence in his
behalf.
(2) Unreasonable failure to commence the investigation within the prescribed period by the person
or persons assigned to investigate shall be a ground for disciplinary action.

(b) When the respondent is an elective official of a province or highly-urbanized city, such hearing and
investigation shall be conducted in the place where he renders or holds office. For all other elective
local officials, the venue [such hearing and investigation] shall be the place where the sanggunian
concerned is located.

(c) No investigation shall be held within ninety (90) days immediately prior to any local elections, and no
preventive suspension shall be imposed within the same period. If preventive suspension has been
imposed prior to the 90-day period immediately preceding local elections, it shall be deemed
automatically lifted upon the start of the said period.

ARTICLE 127. Preventive Suspension. —

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly-urbanized city, an
independent component city or a municipality within MMA;
(2) By the governor, if the respondent is an elective official of a component city or municipality;
(3) By the mayor, if the respondent is an elective official of the barangay.
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(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 evidence.

(c) Any single preventive suspension of an elective local official shall not extend beyond sixty (60) days.

(d) In the event that several administrative cases are filed against an elective local official, he cannot be
placed under preventive suspension 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.

(e) Upon expiration of the preventive suspension, the suspended elective local official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings against him, which
shall be terminated within one hundred twenty (120) days from the time he was formally notified
of the case against him. If the delay in the proceedings of the case is due to his fault, neglect, or
request, other than the appeal duly filed, the duration of such delay shall be counted in computing
the time of termination of the case.

(f) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of
authority.

ARTICLE 128. Salary of Respondent Pending Suspension. — The respondent elective local official who is
under preventive suspension shall receive no salary or compensation during such suspension. Upon
subsequent exoneration and reinstatement, however, he shall be paid his full salary or
compensation including other emoluments accruing during his suspension.

ARTICLE 129. Rights of Respondent. — The respondent shall be accorded full opportunity to appear and
defend himself in person or by counsel, to confront and cross-examine the witnesses against him,
and to require the attendance of witnesses and the production of documentary evidence in his favor
through the compulsory process of subpoena or subpoena duces tecum.

ARTICLE 130. Investigation and Decision. —

(a) The investigation of the case shall be terminated within ninety (90) days from the start thereof.
Unreasonable failure to complete the investigation after same period of ninety (90) days by the
person or persons assigned to investigate shall be a ground for disciplinary action.

(b) Within thirty (30) days after the end of the investigation, the Office of the President or the
sanggunian concerned shall render a written decision stating clearly and distinctly the facts and
reasons for such decision. Copies of decision shall be immediately furnished the respondent and all
interested parties. In case of failure of the sanggunian concerned to render a decision on the
resolution recommended on the investigation within thirty (30) days after the end of the
investigation, the recommended resolution shall be considered the decision.

(c) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office. (d) The
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penalty of removal from office shall be considered a bar to the candidacy of the respondent for any
elective position.

ARTICLE 131. Administrative Appeals. — Decisions in administrative cases may, within thirty (30) days
from receipt thereof, be appealed to the following:

(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod of component
cities and the sangguniang bayan; and

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan, the
sangguniang panlungsod of highly-urbanized cities and independent component cities, and the
sangguniang bayan of municipalities within MMA. Decisions of the Office of the President shall be
final and executory.

(c) If no appeal is made within thirty (30) days from receipt of the decision, the decision shall become
final and executory.

ARTICLE 132. Execution Pending Appeal. — An appeal shall not prevent a decision from becoming final
or executory. The respondent shall be considered as having been placed under preventive suspension
during the pendency of an appeal.

In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments
accruing during the pendency of the appeal.
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EN BANC
G.R. No. 184836               December 23, 2009
SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners, 
vs. COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.
D E C I S I O N - BRION, J.:

Is the preventive suspension of an elected public official an interruption of his term of office for
purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43(b)
of Republic Act No. 7160 (RA 7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an

effective interruption because it renders the suspended public official unable to provide complete
service for the full term; thus, such term should not be counted for the purpose of the three-term limit
rule.

The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.

THE ANTECEDENTS

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive
terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or
during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in
relation with a criminal case he then faced. This Court, however, subsequently lifted the
Sandiganbayan’s suspension order; hence, he resumed performing the functions of his office and
finished his term.

In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners
Simon B. Aldovino, Jr., Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny
due course to Asilo’s certificate of candidacy or to cancel it on the ground that he had been elected
and had served for three terms; his candidacy for a fourth term therefore violated the three-term limit
rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.

The COMELEC’s Second Division ruled against the petitioners and in Asilo’s favour in its Resolution
of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to
render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had
ordered.

The COMELEC en banc refused to reconsider the Second Division’s ruling in its October 7, 2008
Resolution; hence, the PRESENT PETITION raising the following ISSUES:
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1. Whether preventive suspension of an elected local official is an interruption of the three-

term limit rule; and

2. Whether preventive suspension is considered involuntary renunciation as contemplated in

Section 43(b) of RA 7160

Thus presented, the case raises the direct issue of whether Asilo’s preventive suspension
constituted an interruption that allowed him to run for a 4th term.

THE COURT’S RULING

We find the petition meritorious.

General Considerations

The present case is not the first before this Court on the three-term limit provision of the Constitution,
but is the first on the effect of preventive suspension on the continuity of an elective official’s term.
To be sure, preventive suspension, as an interruption in the term of an elective public official, has
been mentioned as an example in Borja v. Commission on Elections. 2 Doctrinally, however, Borja is
not a controlling ruling; it did not deal with preventive suspension, but with the application of the
three-term rule on the term that an elective official acquired by succession.

a. The Three-term Limit Rule:

The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in
wording does not assume any significance in this case.

As worded, the constitutional provision fixes the term of a local elective office and limits an elective
official’s stay in office to no more than three consecutive terms. This is the first branch of the rule
embodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time – three years – during which an
official has title to office and can serve. Appari v. Court of Appeals, 3 a Resolution promulgated on
November 28, 2007, succinctly discusses what a "term" connotes, as follows:

The word "term" in a legal sense means a fixed and definite period of time which the law
describes that an officer may hold an office. According to Mechem, the term of office is the
period during which an office may be held. Upon expiration of the officer’s term, unless he is
authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto
cease. In the law of public officers, the most and natural frequent method by which a public officer
ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis
supplied].1avvphi1
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A later case, Gaminde v. Commission on Audit, 4 reiterated that "[T]he term means the time during
which the officer may claim to hold office as of right, and fixes the interval after which the several
incumbents shall succeed one another."

The "limitation" under this first branch of the provision is expressed in the negative – "no such
official shall serve for more than three consecutive terms." This formulation – no more than three
consecutive terms – is a clear command suggesting the existence of an inflexible rule. While it gives
no exact indication of what to "serve. . . three consecutive terms" exactly connotes, the meaning is
clear – reference is to the term, not to the service that a public official may render.  In other words,
1awphi1

the limitation refers to the term.

The second branch relates to the provision’s express initiative to prevent any circumvention of the
limitation through voluntary severance of ties with the public office; it expressly states that voluntary
renunciation of office "shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected." This declaration complements the term limitation mandated
by the first branch.

A notable feature of the second branch is that it does not textually state that voluntary renunciation is
the only actual interruption of service that does not affect "continuity of service for a full term" for
purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an
interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without
significance in determining constitutional intent.

The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up,
abandon, decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that
operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned
under the second branch of the constitutional provision, cannot but mean an act that results in
cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together
with "renunciation" signifies an act of surrender based on the surenderee’s own freely exercised will;
in other words, a loss of title to office by conscious choice. In the context of the three-term limit rule,
such loss of title is not considered an interruption because it is presumed to be purposely sought to
avoid the application of the term limitation.

The following exchanges in the deliberations of the Constitutional Commission on the term
"voluntary renunciation" shed further light on the extent of the term "voluntary renunciation":

MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary
renunciation" does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].

MR DAVIDE. Yes.

MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee
please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment?

MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by
merely resigning at any given time on the second term.

MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general
than abandonment and resignation?

MR. DAVIDE. It is more general, more embracing. 6

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From this exchange and Commissioner Davide’s expansive interpretation of the term "voluntary
renunciation," the framers’ intent apparently was to close all gaps that an elective official may seize
to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered
unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the
constitutional provision, we note further that Commissioner Davide’s view is consistent with the
negative formulation of the first branch of the provision and the inflexible interpretation that it
suggests.

This examination of the wording of the constitutional provision and of the circumstances surrounding
its formulation impresses upon us the clear intent to make term limitation a high priority constitutional
objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed
for, values of less than equal constitutional worth. We view preventive suspension vis-à-vis term
limitation with this firm mindset.

b. Relevant Jurisprudence on the

Three-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the
provision’s contemplation, particularly on the "interruption in the continuity of service for the full term"
that it speaks of.

Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the

basis of the three-term limit applies if the election of the public official (to be strictly accurate, the
proclamation as winner of the public official) for his supposedly third term had been declared invalid
in a final and executory judgment. We ruled that the two requisites for the application of the
disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in
the same local government post; and 2. that he has fully served three consecutive terms) were not
present. In so ruling, we said:

The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant
their elected official full service of a term is evident in this provision. Voluntary renunciation of a term
does not cancel the renounced term in the computation of the three term limit; conversely,
involuntary severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. The petitioner vacated his post a few months
before the next mayoral elections, not by voluntary renunciation but in compliance with the legal
process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-
1998 mayoral term. [Emphasis supplied]

Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of
title, that renders the three-term limit rule inapplicable.

Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there
had been a completed term for purposes of the three-term limit disqualification. These cases,
however, presented an interesting twist, as their final judgments in the electoral contest came after
the term of the contested office had expired so that the elective officials in these cases were never
effectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the
Court concluded that there was nevertheless an election and service for a full term in contemplation
 11

of the three-term rule based on the following premises: (1) the final decision that the third-termer lost
the election was without practical and legal use and value, having been promulgated after the term
of the contested office had expired; and (2) the official assumed and continuously exercised the
functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and
the deleterious effect of a contrary view – that the official (referring to the winner in the election
protest) would, under the three-term rule, be considered to have served a term by virtue of a
veritably meaningless electoral protest ruling, when another actually served the term pursuant to a
proclamation made in due course after an election. This factual variation led the Court to rule
differently from Lonzanida.

In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election
contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that
Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully
served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer,
he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on
indefinitely."

Ong and Rivera are important rulings for purposes of the three-term limitation because of what they
directly imply. Although the election requisite was not actually present, the Court still gave full effect
to the three-term limitation because of the constitutional intent to strictly limit elective officials to
service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit
rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation
rather than its exception.

Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit
disqualification. The case presented the question of whether the disqualification applies if the official
lost in the regular election for the supposed third term, but was elected in a recall election covering
that term. The Court upheld the COMELEC’s ruling that the official was not elected for three (3)
consecutive terms. The Court reasoned out that for nearly two years, the official was a private
citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third
term.

Socrates v. Commission on Elections11 also tackled recall vis-à-vis the three-term limit

disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for
a fourth term, he did not participate in the election that immediately followed his third term. In this
election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 ½ years after
Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him,
leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the
recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully
served three terms prior to the recall election and was therefore disqualified to run because of the
three-term limit rule. We decided in Hagedorn’s favor, ruling that:

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular election for the same office following the end
of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by
the prohibition for two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question
asked was whether there would be no further election after three terms, or whether there would be
"no immediate reelection" after three terms.
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xxxx

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth
term as long as the reelection is not immediately after the end of the third consecutive term. A recall
election mid-way in the term following the third consecutive term is a subsequent election but not an
immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any
other subsequent election involving the same term of office. What the Constitution prohibits is a
consecutive fourth term.12

Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor

who had fully served for three consecutive terms could run as city mayor in light of the intervening
conversion of the municipality into a city. During the third term, the municipality was converted into a
city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover
capacity, continue to exercise their powers and functions until elections were held for the new city
officials. The Court ruled that the conversion of the municipality into a city did not convert the office
of the municipal mayor into a local government post different from the office of the city mayor – the
territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the
same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the
same inhabitants over whom the municipal mayor held power and authority as their chief executive
for nine years. The Court said:

This Court reiterates that the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served
for three consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over
the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the
very scenario sought to be avoided by the Constitution, if not abhorred by it. 14

Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-
term limit violation results if a rest period or break in the service between terms or tenure in a given
elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective
office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the
private respondents lived as private citizens for two years and fifteen months, respectively. Thus,
these cases establish that the law contemplates a complete break from office during which the local
elective official steps down and ceases to exercise power or authority over the inhabitants of the
territorial jurisdiction of a particular local government unit.

Seemingly differing from these results is the case of Montebon v. Commission on Elections, 15 where
the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law.
The question posed when he subsequently ran for councilor was whether his assumption as vice-
mayor was an interruption of his term as councilor that would place him outside the operation of the
three-term limit rule. We ruled that an interruption had intervened so that he could again run as
councilor. This result seemingly deviates from the results in the cases heretofore discussed since
the elective official continued to hold public office and did not become a private citizen during the
interim. The common thread that identifies Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the higher post of vice-mayor by operation of
 13

law. Thus, for a time he ceased to be councilor – an interruption that effectively placed him outside
the ambit of the three-term limit rule.

c. Conclusion Based on Law and Jurisprudence

From all the above, we conclude that the "interruption" of a term exempting an elective official from
the three-term limit rule is one that involves no less than the involuntary loss of title to office. The
elective official must have involuntarily left his office for a length of time, however short, for an
effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict
intent are to be faithfully served, i.e., to limit an elective official’s continuous stay in office to no more
than three consecutive terms, using "voluntary renunciation" as an example and standard of what
does not constitute an interruption.

Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective
interruption of service within a term, as we held in Montebon. On the other hand, temporary inability
or disqualification to exercise the functions of an elective post, even if involuntary, should not be
considered an effective interruption of a term because it does not involve the loss of title to office or
at least an effective break from holding office; the office holder, while retaining title, is simply barred
from exercising the functions of his office for a reason provided by law.

An interruption occurs when the term is broken because the office holder lost the right to hold on to
his office, and cannot be equated with the failure to render service. The latter occurs during an office
holder’s term when he retains title to the office but cannot exercise his functions for reasons
established by law. Of course, the term "failure to serve" cannot be used once the right to office is
lost; without the right to hold office or to serve, then no service can be rendered so that none is really
lost.

To put it differently although at the risk of repetition, Section 8, Article X – both by structure and
substance – fixes an elective official’s term of office and limits his stay in office to three consecutive
terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of
a circumvention. The provision should be read in the context of interruption of term, not in the
context of interrupting the full continuity of the exercise of the powers of the elective position. The
"voluntary renunciation" it speaks of refers only to the elective official’s voluntary relinquishment of
office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of
power or authority" that may occur for various reasons, with preventive suspension being only one of
them. To quote Latasa v. Comelec:16

Indeed, [T]he law contemplates a rest period during which the local elective official steps down from
office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit. [Emphasis supplied].

Preventive Suspension and the Three-Term Limit Rule

a. Nature of Preventive Suspension

Preventive suspension – whether under the Local Government Code, 17 the Anti-Graft and Corrupt
Practices Act,18or the Ombudsman Act19 – is an interim remedial measure to address the situation of
an official who have been charged administratively or criminally, where the evidence preliminarily
indicates the likelihood of or potential for eventual guilt or liability.
 14

Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is
strong and given the gravity of the offense, there is a possibility 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." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid
information (that requires a finding of probable cause) has been filed in court, while under the
Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is
strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (b) the charges would warrant removal from the service; or (c) the
respondent’s continued stay in office may prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred from performing the
functions of his office and does not receive salary in the meanwhile, but does not vacate and lose
title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or
liability.

Preventive suspension is a remedial measure that operates under closely-controlled conditions and
gives a premium to the protection of the service rather than to the interests of the individual office
holder. Even then, protection of the service goes only as far as a temporary prohibition on the
exercise of the functions of the official’s office; the official is reinstated to the exercise of his position
as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of
power results, no position is vacated when a public official is preventively suspended. This was what
exactly happened to Asilo.

That the imposition of preventive suspension can be abused is a reality that is true in the exercise of
all powers and prerogative under the Constitution and the laws. The imposition of preventive
suspension, however, is not an unlimited power; there are limitations built into the laws 20 themselves
that the courts can enforce when these limitations are transgressed, particularly when grave abuse
of discretion is present. In light of this well-defined parameters in the imposition of preventive
suspension, we should not view preventive suspension from the extreme situation – that it can totally
deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an
election official’s term.

Term limitation and preventive suspension are two vastly different aspects of an elective officials’
service in office and they do not overlap. As already mentioned above, preventive suspension
involves protection of the service and of the people being served, and prevents the office holder from
temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an
elective official has served his three terms in office without any break. Its companion concept –
interruption of a term – on the other hand, requires loss of title to office. If preventive suspension and
term limitation or interruption have any commonality at all, this common point may be with respect to
the discontinuity of service that may occur in both. But even on this point, they merely run parallel to
each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to
render service during an unbroken term; in the context of term limitation, interruption of service
occurs after there has been a break in the term.

b. Preventive Suspension and the Intent of the Three-Term Limit Rule

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should
not be considered an interruption that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended official
continues to stay in office although he is barred from exercising the functions and prerogatives of the
office within the suspension period. The best indicator of the suspended official’s continuity in office
 15

is the absence of a permanent replacement and the lack of the authority to appoint one since no
vacancy exists.

To allow a preventively suspended elective official to run for a fourth and prohibited term is to close
our eyes to this reality and to allow a constitutional violation through sophistry by equating the
temporary inability to discharge the functions of office with the interruption of term that the
constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary –
some of them personal and some of them by operation of law – that may temporarily prevent an
elective office holder from exercising the functions of his office in the way that preventive suspension
does. A serious extended illness, inability through force majeure, or the enforcement of a suspension
as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the
functions of his office for a time without forfeiting title to office. Preventive suspension is no different
because it disrupts actual delivery of service for a time within a term. Adopting such interruption of
actual service as the standard to determine effective interruption of term under the three-term rule
raises at least the possibility of confusion in implementing this rule, given the many modes and
occasions when actual service may be interrupted in the course of serving a term of office. The
standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly
see-sawing determination of what an effective interruption is.

c. Preventive Suspension and Voluntary Renunciation

Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act
on the part of the suspended official, except in the indirect sense that he may have voluntarily
committed the act that became the basis of the charge against him. From this perspective,
preventive suspension does not have the element of voluntariness that voluntary renunciation
embodies. Neither does it contain the element of renunciation or loss of title to office as it merely
involves the temporary incapacity to perform the service that an elective office demands. Thus
viewed, preventive suspension is – by its very nature – the exact opposite of voluntary renunciation;
it is involuntary and temporary, and involves only the actual delivery of service, not the title to the
office. The easy conclusion therefore is that they are, by nature, different and non-comparable.

But beyond the obvious comparison of their respective natures is the more important consideration
of how they affect the three-term limit rule.

Voluntary renunciation, while involving loss of office and the total incapacity to render service, is
disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a
mode of circumventing the three-term limit rule.

Preventive suspension, by its nature, does not involve an effective interruption of a term and should
therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we
shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a
preventive suspension is easier to undertake than voluntary renunciation, as it does not require
relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated
administrative charge that can be dismissed soon after a preventive suspension has been imposed.
In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a
circumvention more potent than the voluntary renunciation that the Constitution expressly disallows
as an interruption.

Conclusion

To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed

preventive suspension in 2005, as preventive suspension does not interrupt an elective official’s
 16

term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of the
Constitution when it granted due course to Asilo’s certificate of candidacy for a prohibited fourth
term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to
lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less
than the Constitution and was one undertaken outside the contemplation of law. 21

WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed
COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and
perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private
respondent Asilo.

SO ORDERED.

EN BANC

G.R. No. 201716               January 8, 2013

MAYOR ABELARDO ABUNDO, SR., Petitioner, 

vs.
COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents.

DECISION

VELASCO, JR., J.:

The Case

In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo) assails and
seeks to nullify (1) the February 8, 2012 Resolution1 of the Second Division, Commission on
Elections (COMELEC), in EAC (AE) No. A-25-2010 and (2) the May 10, 2012 Resolution 2 of the
COMELEC en banc affirming that division’s disposition. The assailed issuances, in turn, affirmed the
Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010,
in Election Case No. 55 declaring Abundo as ineligible, under the three-term limit rule, to run in the
2010 elections for the position of, and necessarily to sit as, Mayor of Viga, Catanduanes.

The antecedent facts are undisputed.

For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national and local
elections, Abundo vied for the position of municipal mayor of Viga, Catanduanes. In both the 2001
and 2007 runs, he emerged and was proclaimed as the winning mayoralty candidate and
accordingly served the corresponding terms as mayor. In the 2004 electoral derby, however, the
Viga municipal board of canvassers initially proclaimed as winner one Jose Torres (Torres), who, in
due time, performed the functions of the office of mayor. Abundo protested Torres’ election and
proclamation. Abundo was eventually declared the winner of the 2004 mayoralty electoral contest,
paving the way for his assumption of office starting May 9, 2006 until the end of the 2004-2007 term
on June 30, 2007, or for a period of a little over one year and one month.

Then came the May 10, 2010 elections where Abundo and Torres again opposed each other. When
Abundo filed his certificate of candidacy3 for the mayoralty seat relative to this electoral contest,
Torres lost no time in seeking the former’s disqualification to run, the corresponding
petition,4 docketed as SPA Case No. 10-128 (DC), predicated on the three-consecutive term limit
 17

rule. On June 16, 2010, the COMELEC First Division issued a Resolution 5 finding for Abundo, who in
the meantime bested Torres by 219 votes6 and was accordingly proclaimed 2010 mayor-elect of
Viga, Catanduanes.

Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted disqualification
case Torres initiated against Abundo, herein private respondent Ernesto R. Vega (Vega)
commenced a quo warranto7 action before the RTC-Br. 43 in Virac, Catanduanes, docketed as
Election Case No. 55, to unseat Abundo on essentially the same grounds Torres raised in his
petition to disqualify.

The Ruling of the Regional Trial Court

By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve
as municipal mayor, disposing as follows:

WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo
Abundo, Sr. ineligible to serve as municipal mayor of Viga, Catanduanes.

SO ORDERED.9

In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC, 10 found Abundo to have already served
three consecutive mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-2010, and, hence,
disqualified for another, i.e., fourth, consecutive term. Abundo, the RTC noted, had been declared
winner in the aforesaid 2004 elections consequent to his protest and occupied the position of and
actually served as Viga mayor for over a year of the remaining term, i.e., from May 9, 2006 to June
30, 2007, to be exact. To the RTC, the year and a month service constitutes a complete and full
service of Abundo’s second term as mayor.

Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-25-2010.

The Ruling of the COMELEC

On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELEC’s Second Division rendered the
first assailed Resolution, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73, Virac,
Catanduanes is AFFIRMED and the appeal is DISMISSED for lack of merit.

SO ORDERED.11

Just like the RTC, the COMELEC’s Second Division ruled against Abundo on the strength of
Aldovino, Jr. and held that service of the unexpired portion of a term by a protestant who is declared
winner in an election protest is considered as service for one full term within the contemplation of the
three-term limit rule.

In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its equally
assailed Resolution of May 10, 2012. The fallo of the COMELEC en banc’s Resolution reads as
follows:

WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of merit. The
Resolution of the Commission (Second Division) is hereby AFFIRMED.
 18

SO ORDERED.12

In affirming the Resolution of its Second Division, the COMELEC en banc held in essence the
following: first, there was no involuntary interruption of Abundo’s 2004-2007 term service which
would be an exception to the three-term limit rule as he is considered never to have lost title to the
disputed office after he won in his election protest; and second, what the Constitution prohibits is for
an elective official to be in office for the same position for more than three consecutive terms and not
to the service of the term.

Hence, the instant petition with prayer for the issuance of a temporary restraining order (TRO) and/or
preliminary injunction.

Intervening Events

In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution denying
Abundo’s motion for reconsideration, the following events transpired:

1. On June 20, 2012, the COMELEC issued an Order 13 declaring its May 10, 2012 Resolution
final and executory. The following day, June 21, 2012, the COMELEC issued an Entry of
Judgment.14

2. On June 25, 2012, Vega filed a Motion for Execution 15 with the RTC-Br. 43 in Virac,
Catanduanes.

3. On June 27, 2012, the COMELEC, acting on Vega’s counsel’s motion 16 filed a day earlier,
issued an Order17 directing the bailiff of ECAD (COMELEC) to personally deliver the entire
records to said RTC.

On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire records of the
instant case to, and were duly received by, the clerk of court of RTC-Br. 43.

4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-Br. 43 in
Virac, Catanduanes granted Vega’s Motion for Execution through an Order 18 of even date.
And a Writ of Execution19 was issued on the same day.

5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served the same
at the office of Mayor Abundo on the same day via substituted service.

6. On July 3, 2012, the Court issued a TRO20 enjoining the enforcement of the assailed
COMELEC Resolutions.

7. On July 4, 2012, Vega received the Court’s July 3, 2012 Resolution 21 and a copy of the
TRO. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O.
Cervantes of Viga, Catanduanes took their oaths of office 22 as mayor and vice-mayor of Viga,
Catanduanes, respectively.

8. On July 5, 2012, Vega received a copy of Abundo’s Seventh (7th) Most Extremely Urgent
Manifestation and Motion23 dated June 28, 2012 praying for the issuance of a TRO and/or
status quo ante Order. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor
Cesar O. Cervantes––who had taken their oaths of office the day before—assumed the
posts of mayor and vice-mayor of Viga, Catanduanes. 24
 19

9. On July 6, 2012, Vega interposed a Motion (To Admit Attached Manifestation) 25 and
Manifestation with Leave to Admit 26 dated July 5, 2012 stating that the TRO thus issued by
the Court has become functus officio owing to the execution of the RTC’s Decision in
Election Case No. 55.

10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the Petitioner’s
Prayer for the Issuance of a Status Quo Ante Order 27 reiterating the argument that since
Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes already assumed the
posts of Mayor and Vice-Mayor of Viga, Catanduanes, then a Status Quo Ante Order would
serve no purpose.

11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to Convert the
July 3, 2012 TRO into a Status Quo Ante Order (In View of the Unreasonable and
Inappropriate Progression of Events).28

It is upon the foregoing backdrop of events that Abundo was dislodged from his post as incumbent
mayor of Viga, Catanduanes. To be sure, the speed which characterized Abundo’s ouster despite
the supervening issuance by the Court of a TRO on July 3, 2012 is not lost on the Court. While it is
not clear whether Vice-Mayor Tarin and First Councilor Cervantes knew of or put on notice about the
TRO either before they took their oaths of office on July 4, 2012 or before assuming the posts of
mayor and vice-mayor on July 5, 2012, the confluence of events following the issuance of the
assailed COMELEC en banc irresistibly tends to show that the TRO––issued as it were to maintain
the status quo, thus averting the premature ouster of Abundo pending this Court’s resolution of his
appeal––appears to have been trivialized.

On September 11, 2012, Vega filed his Comment on Abundo’s petition, followed not long after by
public respondent COMELEC’s Consolidated Comment. 29

The Issues

Abundo raises the following grounds for the allowance of the petition:

6.1 The Commission En Banc committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it declared the arguments in Abundo’s motion for reconsideration
as mere rehash and reiterations of the claims he raised prior to the promulgation of the
Resolution.

6.2 The Commission En Banc committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it declared that Abundo has consecutively served for three terms
despite the fact that he only served the remaining one year and one month of the second
term as a result of an election protest.30

First Issue:

Arguments in Motion for Reconsideration Not Mere Reiteration

The COMELEC en banc denied Abundo’s motion for reconsideration on the basis that his arguments
in said motion are mere reiterations of what he already brought up in his appeal Brief before the
COMELEC Second Division. In this petition, petitioner claims otherwise.

Petitioner’s assertion is devoid of merit.

 20

A comparison of Abundo’s arguments in the latter’s Brief vis-à-vis those in his Motion for
Reconsideration (MR) reveals that the arguments in the MR are elucidations and amplications of the
same issues raised in the brief. First, in his Brief, Abundo raised the sole issue of lack of jurisdiction
of the RTC to consider the quo warranto case since the alleged violation of the three-term limit has
already been rejected by the COMELEC First Division in SPA Case No. 10-128 (DC), while in his
MR, Abundo raised the similar ground of the conclusiveness of the COMELEC’s finding on the issue
of his qualification to run for the current term. Second, in his Brief, Abundo assailed RTC’s reliance
on Aldovino, Jr., while in his MR, he argued that the Court’s pronouncement in Aldovino, Jr., which
dealt with preventive suspension, is not applicable to the instant case as it involves only a partial
service of the term. Abundo argued in his Brief that his situation cannot be equated with the case of
preventive suspension as held in Aldovino, Jr., while in his MR, he argued before that the almost two
years which he did not sit as mayor during the 2004-2007 term is an interruption in the continuity of
his service for the full term.

Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the Brief.

Core Issue:

Whether or not Abundo is deemed to have served three consecutive terms

The pivotal determinative issue then is whether the service of a term less than the full three years by
an elected official arising from his being declared as the duly elected official upon an election protest
is considered as full service of the term for purposes of the application of the three consecutive term
limit for elective local officials.

On this core issue, We find the petition meritorious. The consecutiveness of what otherwise would
have been Abundo’s three successive, continuous mayorship was effectively broken during the
2004-2007 term when he was initially deprived of title to, and was veritably disallowed to serve and
occupy, an office to which he, after due proceedings, was eventually declared to have been the
rightful choice of the electorate.

The three-term limit rule for elective local officials, a disqualification rule, is found in Section 8, Article
X of the 1987 Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was elected. (Emphasis
supplied.)

and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC)
of 1991, thusly:

Sec. 43. Term of Office. —

xxxx

(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected. (Emphasis Ours.)
 21

To constitute a disqualification to run for an elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following requisites must concur:

(1) that the official concerned has been elected for three consecutive terms in the same local
government post; and

(2) that he has fully served three consecutive terms. 31

Judging from extant jurisprudence, the three-term limit rule, as applied to the different factual
milieus, has its complicated side. We shall revisit and analyze the various holdings and relevant
pronouncements of the Court on the matter.

As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC,
voluntary renunciation of the office by the incumbent elective local official for any length of time shall
NOT, in determining service for three consecutive terms, be considered an interruption in the
continuity of service for the full term for which the elective official concerned was elected. In
Aldovino, Jr., however, the Court stated the observation that the law "does not textually state that
voluntary renunciation is the only actual interruption of service that does not affect ‘continuity of
service for a full term’ for purposes of the three-term limit rule." 32

As stressed in Socrates v. Commission on Elections, 33 the principle behind the three-term limit rule
covers only consecutive terms and that what the Constitution prohibits is a consecutive fourth term.
Put a bit differently, an elective local official cannot, following his third consecutive term, seek
immediate reelection for a fourth term,34albeit he is allowed to seek a fresh term for the same
position after the election where he could have sought his fourth term but prevented to do so by
reason of the prohibition.

There has, in fine, to be a break or interruption in the successive terms of the official after his or her
third term. An interruption usually occurs when the official does not seek a fourth term, immediately
following the third. Of course, the basic law is unequivocal that a "voluntary renunciation of the office
for any length of time shall NOT be considered an interruption in the continuity of service for the full
term for which the elective official concerned was elected." This qualification was made as a
deterrent against an elective local official intending to skirt the three-term limit rule by merely
resigning before his or her third term ends. This is a voluntary interruption as distinguished from
involuntary interruption which may be brought about by certain events or causes.

While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes
resulting from the varying interpretations applied on local officials who were elected and served for
three terms or more, but whose terms or service was punctuated by what they view as involuntary
interruptions, thus entitling them to a, but what their opponents perceive as a proscribed, fourth term.
Involuntary interruption is claimed to result from any of these events or causes: succession or
assumption of office by operation of law, preventive suspension, declaration of the defeated
candidate as the winner in an election contest, declaration of the proclaimed candidate as the losing
party in an election contest, proclamation of a non-candidate as the winner in a recall election,
removal of the official by operation of law, and other analogous causes.

This brings us to an examination of situations and jurisprudence wherein such consecutive terms
were considered or not considered as having been "involuntarily interrupted or broken."

(1) Assumption of Office by Operation of Law

 22

In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998) and Montebon v.
Commission on Elections36 (2008), the Court delved on the effects of "assumption to office by
operation of law" on the three-term limit rule. This contemplates a situation wherein an elective local
official fills by succession a higher local government post permanently left vacant due to any of the
following contingencies, i.e., when the supposed incumbent refuses to assume office, fails to qualify,
dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to
discharge the functions of his office.37

In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for
a term ending June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law,
upon the death of the incumbent mayor, Cesar Borja. Capco was then elected and served as mayor
for terms 1992-1995 and 1995-1998. When Capco expressed his intention to run again for the
mayoralty position during the 1998 elections, Benjamin U. Borja, Jr., who was then also a candidate
for mayor, sought Capco’s disqualification for violation of the three-term limit rule.

Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an
individual has served three consecutive terms in an elective local office, he must also have been
elected to the same position for the same number of times before the disqualification can
apply."38 There was, the Court ruled, no violation of the three-term limit, for Capco "was not elected
to the office of the mayor in the first term but simply found himself thrust into it by operation of
law"39 when a permanent vacancy occurred in that office.

The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been
elected for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-
2004, and 2004-2007. However, in January 2004, or during his second term, Montebon succeeded
and assumed the position of vice-mayor of Tuburan when the incumbent vice-mayor retired. When
Montebon filed his certificate of candidacy again as municipal councilor, a petition for disqualification
was filed against him based on the three-term limit rule. The Court ruled that Montebon’s assumption
of office as vice-mayor in January 2004 was an interruption of his continuity of service as councilor.
The Court emphasized that succession in local government office is by operation of law and as such,
it is an involuntary severance from office. Since the law no less allowed Montebon to vacate his post
as councilor in order to assume office as vice-mayor, his occupation of the higher office cannot,
without more, be deemed as a voluntary renunciation of his position as councilor.

(2) Recall Election

With reference to the effects of recall election on the continuity of service, Adormeo v. Commission
on Elections40(2002) and the aforementioned case of Socrates (2002) provide guidance.

In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during
terms 1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao.
However, before Tagarao’s 1998-2001 term ended, a recall election was conducted in May 2000
wherein Talaga won and served the unexpired term of Tagarao until June 2001. When Talaga ran
for mayor in 2001, his candidacy was challenged on the ground he had already served as mayor for
three consecutive terms for violation of the three term-limit rule. The Court held therein that the
remainder of Tagarao’s term after the recall election during which Talaga served as mayor should
not be considered for purposes of applying the three-term limit rule. The Court emphasized that the
continuity of Talaga’s mayorship was disrupted by his defeat during the 1998 elections.

A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the
COMELEC Resolution which declared Edward Hagedorn qualified to run for mayor in a recall
election. It appeared that Hagedorn had been elected and served as mayor of Puerto Princesa City
 23

for three consecutive terms: in 1992-1995, 1995-1998 and 1998-2001. Obviously aware of the three-
term limit principle, Hagedorn opted not to vie for the same mayoralty position in the 2001 elections,
in which Socrates ran and eventually won. However, midway into his term, Socrates faced recall
proceedings and in the recall election held, Hagedorn run for the former’s unexpired term as mayor.
Socrates sought Hagedorn’s disqualification under the three-term limit rule.

In upholding Hagedorn’s candidacy to run in the recall election, the Court ruled:

x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the
recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent,
Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa
was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly
an interruption in the continuity of Hagedorn’s service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition. 41

The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular election for the same
office following the end of the third consecutive term and, hence, any subsequent election, like recall
election, is no longer covered x x x."42

(3) Conversion of a Municipality into a City

On the other hand, the conversion of a municipality into a city does not constitute an interruption of
the incumbent official’s continuity of service. The Court said so in Latasa v. Commission on
Elections43 (2003).

Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of
the Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During
his third term, Digos was converted into a component city, with the corresponding cityhood law
providing the holdover of elective officials. When Latasa filed his certificate of candidacy as mayor
for the 2001 elections, the Court declared Latasa as disqualified to run as mayor of Digos City for
violation of the three-term limit rule on the basis of the following ratiocination:

This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the
said office has been deemed abolished due to the conversion. However, the very instant he vacated
his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where
petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa
never ceased from acting as chief executive of the local government unit. He never ceased from
discharging his duties and responsibilities as chief executive of Digos.

(Emphasis supplied.)

(4) Period of Preventive Suspension

In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a
local elected official is under preventive suspension cannot be considered as an interruption of the
continuity of his service. The Court explained why so:
 24

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should
not be considered an interruption that allows an elective official’s stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because the suspended official
continues to stay in office although he is barred from exercising the functions and prerogatives of the
office within the suspension period. The best indicator of the suspended official’s continuity in office
is the absence of a permanent replacement and the lack of the authority to appoint one since no
vacancy exists.44 (Emphasis supplied.)

(5) Election Protest

With regard to the effects of an election protest vis-à-vis the three-term limit rule, jurisprudence
presents a more differing picture. The Court’s pronouncements in Lonzanida v. Commission on
Elections45 (1999), Ong v. Alegre46(2006), Rivera III v. Commission on Elections 47 (2007) and Dizon v.
Commission on Elections48 (2009), all protest cases, are illuminating.

In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio,
Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to the
1995 election was protested and was eventually declared by the RTC and then by COMELEC null
and void on the ground of failure of elections. On February 27, 1998, or about three months before
the May 1998 elections, Lonzanida vacated the mayoralty post in light of a COMELEC order and writ
of execution it issued. Lonzanida’s opponent assumed office for the remainder of the term. In the
May 1998 elections, Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli, filed
a petition for disqualification on the ground that Lonzanida had already served three consecutive
terms in the same post. The Court, citing Borja Jr., reiterated the two (2) conditions which must
concur for the three-term limit to apply: "1) that the official concerned has been elected for three
consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms."49

In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of
Lonzanida. The Court held that Lonzanida cannot be considered as having been duly elected to the
post in the May 1995 elections since his assumption of office as mayor "cannot be deemed to have
been by reason of a valid election but by reason of a void proclamation." And as a corollary point,
the Court stated that Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered
to vacate his post before the expiration of the term, a situation which amounts to an involuntary
relinquishment of office.This Court deviated from the ruling in Lonzanida in Ong v. Alegre 50 owing to
a variance in the factual situations attendant.

In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte
for terms 1995-1998, 1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his
supposed second term, the COMELEC nullified Ong’s proclamation on the postulate that Ong lost
during the 1998 elections. However, the COMELEC’s decision became final and executory on July
4, 2001, when Ong had fully served the 1998-2001 mayoralty term and was in fact already starting to
serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his
certificate of candidacy for the same position as mayor, which his opponent opposed for violation of
the three-term limit rule.

Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served
as mayor from 1998-2001 because he was not duly elected to the post and merely assumed office
as a "presumptive winner." Dismissing Ong’s argument, the Court held that his assumption of office
as mayor for the term 1998-2001 constitutes "service for the full term" and hence, should be counted
for purposes of the three-term limit rule. The Court modified the conditions stated in Lonzanida in the
sense that Ong’s service was deemed and counted as service for a full term because Ong’s
 25

proclamation was voided only after the expiry of the term. The Court noted that the COMELEC
decision which declared Ong as not having won the 1998 elections was "without practical and legal
use and value" promulgated as it was after the contested term has expired. The Court further
reasoned:

Petitioner Francis Ong’s contention that he was only a presumptive winner in the 1998 mayoralty
derby as his proclamation was under protest did not make him less than a duly elected mayor. His
proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of
office and his continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view
would mean that Alegre would – under the three-term rule - be considered as having served a term
by virtue of a veritably meaningless electoral protest ruling, when another actually served such term
pursuant to a proclamation made in due course after an election. 51 (Emphasis supplied.)

The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit:

The difference between the case at bench and Lonzanida is at once apparent. For one, in
Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of "failure
of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not
fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result
of legal processes. In fine, there was an effective interruption of the continuity of
service.52 (Emphasis supplied.)

Ong’s slight departure from Lonzanida would later find reinforcement in the consolidated cases of
Rivera III v. Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor of
Mabalacat, Pampanga for the following consecutive terms: 1995-1998, 1998-2001 and 2001-2004.
In relation to the 2004 elections, Morales again ran as mayor of the same town, emerged as
garnering the majority votes and was proclaimed elective mayor for term commencing July 1, 2004
to June 30, 2007. A petition for quo warranto was later filed against Morales predicated on the
ground that he is ineligible to run for a "fourth" term, having served as mayor for three consecutive
terms. In his answer, Morales averred that his supposed 1998-2001 term cannot be considered
against him, for, although he was proclaimed by the Mabalacat board of canvassers as elected
mayor vis-à-vis the 1998 elections and discharged the duties of mayor until June 30, 2001, his
proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony Dee,
proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that he only served
as a mere caretaker.

The Court found Morales’ posture untenable and held that the case of Morales presents a factual
milieu similar with Ong, not with Lonzanida. For ease of reference, the proclamation of Francis Ong,
in Ong, was nullified, but after he, like Morales, had served the three-year term from the start to the
end of the term. Hence, the Court concluded that Morales exceeded the three-term limit rule, to wit:

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the
position. He served as mayor until June 30, 2001. He was mayor for the entire period
notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting
him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not
constitute an interruption in serving the full term.

xxxx
 26

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously
without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been
mayor of Mabalacat for twelve (12) continuous years. 55 (Emphasis supplied.)

The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term,
cannot constitute an interruption in Morales’ service of the full term; neither can Morales, as he
argued, be considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of
applying the three-term limit rule.

In a related 2009 case of Dizon v. Commission on Elections, 56 the Court would again find the same
Mayor Morales as respondent in a disqualification proceeding when he ran again as a mayoralty
candidate during the 2007 elections for a term ending June 30, 2010. Having been unseated from
his post by virtue of this Court’s ruling in Rivera, Morales would argue this time around that the
three-term limit rule was no longer applicable as to his 2007 mayoralty bid. This time, the Court ruled
in his favor, holding that for purposes of the 2007 elections, the three-term limit rule was no longer a
disqualifying factor as against Morales. The Court wrote:

Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to
the 2004-2007 term. Involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. Our decision in the Rivera case
was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the
vice mayor’s office of our decision. The vice mayor assumed the office of the mayor from 17 May
2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter
how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales did not
hold office for the full term of 1 July 2004 to 30 June 2007. 57 (Emphasis supplied)

To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of

terms and/or involuntary interruption, viz:

1. When a permanent vacancy occurs in an elective position and the official merely assumed
the position pursuant to the rules on succession under the LGC, then his service for the
unexpired portion of the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision that service cannot be
counted in the application of any term limit (Borja, Jr.). If the official runs again for the same
position he held prior to his assumption of the higher office, then his succession to said
position is by operation of law and is considered an involuntary severance or interruption
(Montebon).

2. An elective official, who has served for three consecutive terms and who did not seek the
elective position for what could be his fourth term, but later won in a recall election, had an
interruption in the continuity of the official’s service. For, he had become in the interim, i.e.,
from the end of the 3rd term up to the recall election, a private citizen (Adormeo and
Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent official’s continuity of service (Latasa).

4. Preventive suspension is not a term-interrupting event as the elective officer’s continued

stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of his office during this period (Aldovino,
Jr.).
 27

5. When a candidate is proclaimed as winner for an elective position and assumes office, his
term is interrupted when he loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need
not be for a full term of three years or for the major part of the 3-year term; an interruption for
any length of time, provided the cause is involuntary, is sufficient to break the continuity of
service (Socrates, citing Lonzanida).

6. When an official is defeated in an election protest and said decision becomes final after
said official had served the full term for said office, then his loss in the election contest does
not constitute an interruption since he has managed to serve the term from start to finish. His
full service, despite the defeat, should be counted in the application of term limits because
the nullification of his proclamation came after the expiration of the term (Ong and Rivera).

The Case of Abundo

Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had already served
three consecutive terms and is, thus, barred by the constitutional three-term limit rule to run for the
current 2010-2013 term. In gist, Abundo arguments run thusly:

1. Aldovino, Jr. is not on all fours with the present case as the former dealt with preventive
suspension which does not interrupt the continuity of service of a term;

2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so as to
remove him from the reach of the constitutional three-term limitation;

3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its reliance on a
mere portion of the Decision and not on the unified logic in the disquisition;

4. Of appropriate governance in this case is the holding in Lonzanida 58 and Rivera III v.
Commission on Elections.59

5. The COMELEC missed the point when it ruled that there was no interruption in the service
of Abundo since what he considered as an "interruption" of his 2004-2007 term occurred
before his term started; and

6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid
was interrupted while that of the protestant (Abundo) who was eventually proclaimed winner
was not so interrupted is at once absurd as it is illogical.

Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr. finds
application in the instant case. The COMELEC ruled that Abundo did not lose title to the office as his
victory in the protest case confirmed his entitlement to said office and he was only unable to
temporarily discharge the functions of the office during the pendency of the election protest.

We note that this present case of Abundo deals with the effects of an election protest, for which the
rulings in Lonzanida, Ong, Rivera and Dizon appear to be more attuned than the case of Aldovino
Jr., the interrupting effects of the imposition of a preventive suspension being the very lis mota in the
Aldovino, Jr. case. But just the same, We find that Abundo’s case presents a different factual
backdrop.
 28

Unlike in the abovementioned election protest cases wherein the individuals subject of
disqualification were candidates who lost in the election protest and each declared loser during the
elections, Abundo was the winner during the election protest and was declared the rightful holder of
the mayoralty post. Unlike Mayor Lonzanida and Mayor Morales, who were both unseated toward
the end of their respective terms, Abundo was the protestant who ousted his opponent and had
assumed the remainder of the term.

Notwithstanding, We still find this Court’s pronouncements in the past as instructive, and consider
several doctrines established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino
Jr. in 2009, as potent aids in arriving at this Court’s conclusion.

The intention behind the three-term limit rule was not only to abrogate the "monopolization of political
power" and prevent elected officials from breeding "proprietary interest in their position" 60 but also to
"enhance the people’s freedom of choice." 61 In the words of Justice Vicente V. Mendoza, "while
people should be protected from the evils that a monopoly of power may bring about, care should be
taken that their freedom of choice is not unduly curtailed." 62

In the present case, the Court finds Abundo’s case meritorious and declares that the two-year period
during which his opponent, Torres, was serving as mayor should be considered as an interruption,
which effectively removed Abundo’s case from the ambit of the three-term limit rule.

It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July 1, 2004
to June 30, 2007, was the duly elected mayor. Otherwise how explain his victory in his election
protest against Torres and his consequent proclamation as duly elected mayor. Accordingly, the first
requisite for the application of the disqualification rule based on the three-term limit that the official
has been elected is satisfied.

This thus brings us to the second requisite of whether or not Abundo had served for "three
consecutive terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes
immediately before the 2010 national and local elections. Subsumed to this issue is of course the
question of whether or not there was an effective involuntary interruption during the three three-year
periods, resulting in the disruption of the continuity of Abundo’s mayoralty.

The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007
term.

There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision
of the election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and
served the term until June 30, 2007 or for a period of a little over one year and one month.
Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be said that Mayor
Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise entitled.

A "term," as defined in Appari v. Court of Appeals, 63 means, in a legal sense, "a fixed and definite
period of time which the law describes that an officer may hold an office." 64 It also means the "time
during which the officer may claim to hold office as a matter of right, and fixes the interval after which
the several incumbents shall succeed one another." 65 It is the period of time during which a duly
elected official has title to and can serve the functions of an elective office. From paragraph (a) of
Sec. 43, RA 7160,66 the term for local elected officials is three (3) years starting from noon of June
30 of the first year of said term.

In the present case, during the period of one year and ten months, or from June 30, 2004 until May
8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold office of the mayor
 29

as a matter of right. Neither can he assert title to the same nor serve the functions of the said
elective office. The reason is simple: during that period, title to hold such office and the
corresponding right to assume the functions thereof still belonged to his opponent, as proclaimed
election winner. Accordingly, Abundo actually held the office and exercised the functions as mayor
only upon his declaration, following the resolution of the protest, as duly elected candidate in the
May 2004 elections or for only a little over one year and one month. Consequently, since the legally
contemplated full term for local elected officials is three (3) years, it cannot be said that Abundo fully
served the term 2004-2007. The reality on the ground is that Abundo actually served less.

Needless to stress, the almost two-year period during which Abundo’s opponent actually served as
Mayor is and ought to be considered an involuntary interruption of Abundo’s continuity of service. An
involuntary interrupted term, cannot, in the context of the disqualification rule, be considered as one
term for purposes of counting the three-term threshold. 67

The notion of full service of three consecutive terms is related to the concepts of interruption of
service and voluntary renunciation of service. The word interruption means temporary cessation,
intermission or suspension.68To interrupt is to obstruct, thwart or prevent. 69 When the Constitution
and the LGC of 1991 speak of interruption, the reference is to the obstruction to the continuance of
the service by the concerned elected official by effectively cutting short the service of a term or
giving a hiatus in the occupation of the elective office. On the other hand, the word "renunciation"
connotes the idea of waiver or abandonment of a known right. To renounce is to give up, abandon,
decline or resign.70 Voluntary renunciation of the office by an elective local official would thus mean
to give up or abandon the title to the office and to cut short the service of the term the concerned
elected official is entitled to.

In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr., 71 held:

It must be stressed that involuntary interruption of service which jurisprudence deems an exception
to the three-term limit rule, implies that the service of the term has begun before it was interrupted.
Here, the respondent did not lose title to the office. As the assailed Resolution states:

In the case at bar, respondent cannot be said to have lost his title to the office. On the contrary, he
actively sought entitlement to the office when he lodged the election protest case. And respondent-
appellant’s victory in the said case is a final confirmation that he was validly elected for the mayoralty
post of Viga, Catanduanes in 2004-2007. At most, respondent-appellant was only unable to
temporarily discharge the functions of the office to which he was validly elected during the pendency
of the election protest, but he never lost title to the said office. 72 (Emphasis added.)

The COMELEC’s Second Division, on the other hand, pronounced that the actual length of service
by the public official in a given term is immaterial by reckoning said service for the term in the
application of the three-term limit rule, thus:

As emphasized in the case of Aldovino, "this formulation—no more than three consecutive terms—is
a clear command suggesting the existence of an inflexible rule." Therefore we cannot subscribe to
the argument that since respondent Abundo served only a portion of the term, his 2004-2007 "term"
should not be considered for purposes of the application of the three term limit rule. When the
framers of the Constitution drafted and incorporated the three term limit rule, it is clear that reference
is to the term, not the actual length of the service the public official may render. Therefore, one’s
actual service of term no matter how long or how short is immaterial. 73

In fine, the COMELEC ruled against Abundo on the theory that the length of the actual service of the
term is immaterial in his case as he was only temporarily unable to discharge his functions as mayor.
 30

The COMELEC’s case disposition and its heavy reliance on Aldovino, Jr. do not commend
themselves for concurrence. The Court cannot simply find its way clear to understand the poll body’s
determination that Abundo was only temporarily unable to discharge his functions as mayor during
the pendency of the election protest.

As previously stated, the declaration of being the winner in an election protest grants the local
elected official the right to serve the unexpired portion of the term. Verily, while he was declared
winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full term has been
substantially reduced by the actual service rendered by his opponent (Torres). Hence, there was
actual involuntary interruption in the term of Abundo and he cannot be considered to have served
the full 2004-2007 term.

This is what happened in the instant case. It cannot be overemphasized that pending the favorable
resolution of his election protest, Abundo was relegated to being an ordinary constituent since his
opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. In other
words, for almost two years or from July 1, 2004—the start of the term—until May 9, 2006 or during
which his opponent actually assumed the mayoralty office, Abundo was a private citizen warming his
heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to
serve the elective position from July 1, 2004, such declaration would not erase the fact that prior to
the finality of the election protest, Abundo did not serve in the mayor’s office and, in fact, had no
legal right to said position.

Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to COMELEC’s
resolution against Abundo. In Aldovino Jr., the Court succinctly defines what temporary inability or
disqualification to exercise the functions of an elective office means, thus:

On the other hand, temporary inability or disqualification to exercise the functions of an elective post,
even if involuntary, should not be considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from holding office; the office holder,
while retaining title, is simply barred from exercising the functions of his office for a reason provided
by law.74

We rule that the above pronouncement on preventive suspension does not apply to the instant case.
Verily, it is erroneous to say that Abundo merely was temporarily unable or disqualified to exercise
the functions of an elective post. For one, during the intervening period of almost two years,
reckoned from the start of the 2004-2007 term, Abundo cannot be said to have retained title to the
mayoralty office as he was at that time not the duly proclaimed winner who would have the legal
right to assume and serve such elective office. For another, not having been declared winner yet,
Abundo cannot be said to have lost title to the office since one cannot plausibly lose a title which, in
the first place, he did not have. Thus, for all intents and purposes, even if the belated declaration in
the election protest accords him title to the elective office from the start of the term, Abundo was not
entitled to the elective office until the election protest was finally resolved in his favor.
1âwphi1

Consequently, there was a hiatus of almost two years, consisting of a break and effective
interruption of his service, until he assumed the office and served barely over a year of the remaining
term. At this juncture, We observe the apparent similarities of Mayor Abundo’s case with the cases
of Mayor Talaga in Adormeo and Mayor Hagedorn in Socrates as Mayors Talaga and Hagedorn
were not proclaimed winners since they were non-candidates in the regularelections. They were
proclaimed winners during the recall elections and clearly were not able to fully serve the terms of
the deposed incumbent officials. Similar to their cases where the Court deemed their terms as
involuntarily interrupted, Abundo also became or was a private citizen during the period over which
his opponent was serving as mayor. If in Lonzanida, the Court ruled that there was interruption in
 31

Lonzanida’s service because of his subsequent defeat in the election protest, then with more reason,
Abundo’s term for 2004-2007 should be declared interrupted since he was not proclaimed winner
after the 2004 elections and was able to assume the office and serve only for a little more than a
year after winning the protest.

As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest
period during which the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local government
unit."75 Applying the said principle in the present case, there is no question that during the pendency
of the election protest, Abundo ceased from exercising power or authority over the good people of
Viga, Catanduanes.

Consequently, the period during which Abundo was not serving as mayor should be considered as a
rest period or break in his service because, as earlier stated, prior to the judgment in the election
protest, it was Abundo’s opponent, Torres, who was exercising such powers by virtue of the still then
valid proclamation.

As a final note, We reiterate that Abundo’s case differs from other cases involving the effects of an
election protest because while Abundo was, in the final reckoning, the winning candidate, he was the
one deprived of his right and opportunity to serve his constituents. To a certain extent, Abundo was
a victim of an imperfect election system. While admittedly the Court does not possess the mandate
to remedy such imperfections, the Constitution has clothed it with enough authority to establish a
fortress against the injustices it may bring.

In this regard, We find that a contrary ruling would work damage and cause grave injustice to
Abundo––an elected official who was belatedly declared as the winner and assumed office for only a
short period of the term. If in the cases of Lonzanida and Dizon, this Court ruled in favor of a losing
candidate––or the person who was adjudged not legally entitled to hold the contested public office
but held it anyway––We find more reason to rule in favor of a winning candidate-protestant who, by
popular vote, deserves title to the public office but whose opportunity to hold the same was halted by
an invalid proclamation.

Also, more than the injustice that may be committed against Abundo is the injustice that may
likewise be committed against the people of Viga, Catanduanes by depriving them of their right to
choose their leaders. Like the framers of the Constitution, We bear in mind that We "cannot arrogate
unto ourselves the right to decide what the people want" 76 and hence, should, as much as possible,
"allow the people to exercise their own sense of proportion and rely on their own strength to curtail
the power when it overreaches itself."77 For democracy draws strength from the choice the people
make which is the same choice We are likewise bound to protect.

WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8,
2012 Resolution of the Commission on Elections Second Division and May 10, 2012 Resolution of
the Commission on Elections en banc in EAC (AE) No. A-25-2010 and the Decision of the Regional
Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55,
are hereby REVERSED and SET ASIDE.

Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga,
Catanduanes to which he was duly elected in the May 2010 elections and is accordingly ordered
IMMEDIATELY REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar O. Cervantes
are ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes,
respectively, and shall revert to their original positions of Vice-Mayor and First Councilor,
respectively, upon receipt of this Decision.
 32

The TRO issued by the Court on July 3, 2012 is hereby LIFTED.

This Decision is immediately executory.

SO ORDERED.

G.R. No. 191787               June 22, 2015

MACARIO CATIPON, JR., Petitioner, 

vs.
JEROME JAPSON, Respondent.

DECISION

DEL CASTILLO, J.:

This Petition for Review on Certiorari1 seeks to set aside the December 11, 2009 Decision 2 of
the Court of Appeals (CA) in CA-G.R. SP No. 94426 affirming the July 6, 2005 Decision 3 of the
Civil Service Commission-Cordillera Administrative Region (CSC-CAR) in CAR-05-034DC, as
well as its March 17, 2010 Resolution 4 denying petitioner's Motion for Reconsideration.5

Factual Antecedents

The facts are as follows:

Petitioner Macario U. Catipon, Jr. is the holder of a Bachelor's Degree in Commerce from the
Baguio Colleges Foundation. When applying for graduation, he was allowed to join the
graduation ceremonies despite a deficiency of 1.5 units in Military Science, pursuant to a
school policy allowing students with deficiencies of not more than 12 units to be included in
the list of graduates. However, a restriction came after, which is, that the deficiency must be
cured before the student can be considered a graduate.

In 1985, petitioner found employment with the Social Security System (SSS) in Bangued,
Abra. Sometime in September 1993, the personnel head of the SSS in Bangued, Abra
informed petitioner that the Civil Service Commission was conducting a Career Service
Professional Examination (CSPE) in October of the same year. Petitioner filed an application
to take the examination, believing that the CSC still allowed CSPE applicants to substitute the
length of their government service for any academic deficiency which they may have.
However, the above-mentioned policy of the CSC had been discontinued since January 1993
pursuant to Civil Service Commission Memorandum Circular No. 42, Series of 1991 and
Office Memo. No. 63, Series of 1992.

Nevertheless, petitioner took the CSPE tests on October 17, 1993 and obtained a rating of
80.52%. Eventually, petitioner was promoted to Senior Analyst and Officer-in-Charge Branch
Head of the SSS at Bangued, Abra. In October 1995, he finally eliminated his deficiency of 1.5
units in Military Science.

On March 10, 2003, respondent Jerome Japson, a former Senior Member Services
Representative of SSS Bangued, filed a letter-complaint with the Civil Service Commission-
CAR Regional Director, alleging that petitioner made deliberate false entries in his CSPE
application, specifically, that he obtained his college degree in 1993 when actually he
 33

graduated in 1995 only, after removing his deficiency of 1.5 units in Military Education. Also,
that petitioner was not qualified to take the CSPE examination in 1993 since he was not yet
then a graduate of a four-year college course, contrary to the entry in his application form.

After preliminary investigation, petitioner was charged with Dishonesty, Falsification of

Official documents, Grave Misconduct and Conduct Prejudicial to the Best Interest of the
Service by the CSC-CAR.6

Respondent’s Letter-Complaint7 against petitioner was docketed as CSC Disciplinary

Administrative Case No. BB-03-006.

In his Answer,8 petitioner essentially pleaded good faith, lack of malice, and honest mistake.
He maintained that at the time of his application to take the CSPE, he was of the honest belief
that the policy of the CSC – that any deficiency in the applicant’s educational requirement
may be substituted by his length of service – was still subsisting.

On July 6, 2005, the CSC-CAR, through Director IV Atty. Lorenzo S. Danipog, rendered a
Decision9 containing the following pronouncements:

Clearly, respondent Catipon is not without any fault under the foregoing circumstances. The
only issue now left is with respect to the particular offense for which Catipon may be held
responsible. Respondent Catipon is charged (with) four offenses: Dishonesty, Falsification of
Official Documents, Grave Misconduct and Conduct Prejudicial to the Best Interest of the
Service.

The key document allegedly falsified in this case is the Application Form x x x of respondent
Catipon for the purpose of taking the CS Professional Examination scheduled on October 17,
1993. Close and careful perusal of the said application form reveals that most of the entries
filled up by respondent are typewritten. The only entries handwritten by respondent are those
corresponding to "Year Graduated" and "School Where Graduated" which were answered by
Macario with "1984" and "BCF" respectively. Another handwritten entry is with respect to
"Degree Finished", the handwritten "BSC" entry, however, was just superimposed on the
typewritten "Commerce".

The fact that majority of the entries or data in the application form is typewritten suggests
that the said application form was consciously drafted and meticulously prepared before its
actual submission to the CSC for processing. They are relevant and material entries or data
sought from respondent. It is worth emphasizing however that the pre-drafted application
form, considering the typewritten entries, shows respondent’s confusion on how to make
entries thereat. Respondent answered both the IF YES column and IF NO column
corresponding to the question "Are you a college graduate" in Item 8. x x x

xxxx

The manner that Item 8 was filled up by respondent Catipon shows lack of deliberate intent to
defraud the government. He manifested in his application his uncertainty on how to take the
fact that he only lacks 1.5 units Military Science to be conferred a graduate status, vis-à-vis
the CSC policy on educational requirement. Though the entry "undergrad" was erased, the
CSC employee who processed the application would have doubted the truthfulness and
authenticity of respondent’s entries in Item 8 of the Application Form, and thus the
educational status of Macario. x x x
 34

xxxx

Catipon had tried to show the real state of the matter regarding his educational attainment as
can be deduced from the manner he answered Item No. 8 in the application form. This may be
taken as good faith, which will serve to mitigate any liability incurred by respondent Catipon.
The premeditated intent to deceive or willfully distort the facts in this case is not present. The
acts of Catipon do not even show blatant disregard of an established rule or a clear intent to
violate the law if at all, there was attempt to reveal the truth to the examination division
processing the application.

xxxx

With [regard] to the eligibility earned by respondent Macario in view of his passing the
October 17, 1993 Career Service Professional Examination, the same needs to be revoked
being the fruit of a poisonous tree, so to speak. Paragraph 2 of Sec. 6, Rule II, Omnibus Rules
Implementing Book V of Executive Order No. 292 states:

Provided that when an applica[nt] for examination is found to have x x x intentionally made
any false statement of any material fact in his application, x x x the Commission shall
invalidate such examination x x x.

With the foregoing, respondent Macario U. Catipon, Jr., Senior Analyst and OIC Branch Head,
Social Security System, Bangued, Abra, is hereby exonerated of the charges Dishonesty,
Falsification of Official Documents and Grave Misconduct. However, respondent is found
guilty of Conduct Prejudicial to the Best Interest of the Service.

Under the Uniform Rules on Administrative Cases in the Civil Service, the imposable penalty
on the first offense of Conduct Prejudicial to the Best Interest of the Service is suspension of
six months and one day to one year.

Under Section 53 of the same Rules, good faith is enumerated as one mitigating
circumstance. Thus, respondent Macario Catipon, Jr. is hereby meted a penalty of six months
and one day suspension, without pay, which is the minimum period of the penalty attached to
the offense committed. The Career Service Professional eligibility of respondent is also
ordered revoked, without prejudice however to retaking of the said examination. Thus,
Catipon, after serving suspension herein provided should not be allowed to go back to his
current position without CS Professional eligibility. Consequently, in case respondent
Catipon fails to retake or pass CSPE, after serving his suspension, he may be demoted to any
available position that fits his subprofessional eligibility. 10

Petitioner moved for reconsideration, 11 but the CSC-CAR sustained its judgment in a March
23, 2006 Decision,12which contained the following pronouncement:

Catipon also asserted that in view of his exoneration of Dishonesty, Falsification of Official
Documents and Grave Misconduct, there is no longer any basis to hold respondent guilty of
Conduct Prejudicial to the Best Interest of the Service. This contention is without legal basis.
In the case of Philippine Retirement Authority vs. Rupa 363 SCRA 480, the Honorable
Supreme Court held as follows:

Under the Civil Service laws and rules, there is no description of what specific acts constitute
the grave offense of Conduct Prejudicial to the Best Interest of the Service.
 35

As alluded to previously in Decision No. CAR-05-034DC, Catipon is not without fault under
the circumstances. To completely exonerate respondent would be inequitable and iniquitous
considering the totality of events surrounding this case. Though there was no deliberate
intent to falsify or to make dishonest entry in the Application Form as deduced from the
manner that the said form was accomplished, the fact that there was indeed such dishonest
or false entry in the CSPE Application Form is undisputedly established. In view of such an
established fact, the integrity of the Civil Service Examination, particularly the CSPE has
been blemished which is sufficient to constitute Conduct Prejudicial to the Interest of the
Service.13

Ruling of the Court of Appeals

In a Petition for Review docketed with the CA as CA-G.R. SP No. 94426, petitioner prayed for
injunctive relief and the reversal of the above CSC-CAR decision. He argued that the CSC-
CAR incorrectly found him guilty of conduct prejudicial to the best interest of the service
when he has been declared innocent of the charges of dishonesty, falsification of official
documents, and grave misconduct; that while the Supreme Court has held that making false
entries in public documents may be considered as conduct prejudicial to the best interest of
the service, such act must be accompanied by deliberate intent or a willful desire to defy or
disregard established rules or norms in the service; 14 and that with the finding that he merely
committed an innocent mistake in filling up the application form for the CSPE, he may not be
found guilty of conduct prejudicial to the best interest of the service.

On December 11, 2009, the CA rendered the assailed Decision denying the petition, decreeing
thus:

WHEREFORE, in view of the foregoing, the instant petition is DENIED for lack of merit. The
Decision [sic] of the Civil Service Commission-Cordillera Administrative Region dated July 6,
2005 and March 23, 2006 is [sic] AFFIRMED.

SO ORDERED.15

The CA held that instead of filing a petition for review directly with it, petitioner should have
interposed an appeal with the Civil Service Commission (CSC), pursuant to Sections 5(A)
(1),43 and 49 of the CSC Uniform Rules on Administrative Cases; 16 that by filing a petition
directly with it, petitioner violated the doctrine of exhaustion of administrative remedies; that
petitioner’s case is not exceptional as would exempt it from the application of the doctrine;
that per the ruling in Bayaca v. Judge Ramos, 17 the absence of deliberate intent or willful
desire to defy or disregard established rules or norms in the service does not preclude a
finding of guilt for conduct prejudicial to the best interest of the service; and that petitioner
did not act with prudence and care, but instead was negligent, in the filling up of his CSPE
application form and in failing to verify beforehand the requirements for the examination.

Petitioner moved for reconsideration, but the CA stood its ground. Hence, the instant
recourse. Issues

Petitioner raises the following issues for resolution:

(A)
 36

THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION WHEN IT
FAILED TO REALIZE THAT GIVEN THE IMMEDIATE EFFECT OF THE SUSPENSION IMPOSED
BY THE CIVIL SERVICE COMMISSION-CORDILLERA ADMINISTRATIVE REGION AGAINST
THE PETITIONER, HE WAS JUSTIFIED IN SEEKING JUDICIAL RECOURSE BEFORE (THE
COURT OF APPEALS);

(B)

THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION WHEN IT
MISAPPLIEDIN THE ABOVE-ENTITLED CASE THE RULE ON PRIOR EXHAUSTION OF
ADMINISTRATIVE REMEDIES;

(C)

THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION WHEN IT
FAILED TO CONSIDER THAT THE PETITIONER ACTED IN GOOD FAITH AND THIS NEGATES
GUILT FOR CONDUCT PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE. 18

Petitioner’s Arguments

In his Petition and Reply19 seeking a reversal of the assailed CA dispositions and,

consequently, exoneration from the charge of conduct prejudicial to the best interest of the
service, petitioner argues that he was constrained to file the petition for review with the CA
as his decreed six-month suspension was imminent as a consequence of the executory
nature of the CSC-CAR decision; that immediate judicial intervention was necessary to
"prevent serious injury and damage" to him, which is why his CA petition included a prayer
for injunctive relief; that the doctrine of exhaustion of administrative remedies should not
have been applied strictly in his case, given the special circumstance that his suspension
would mean loss of his only source of income; 20 that he should be completely exonerated
from the charges against him, since conduct prejudicial to the best interest of the service
must be accompanied by deliberate intent or a willful desire to defy or disregard established
rules or norms in the service – which is absent in his case; and that his career service
professional eligibility should not be revoked in the interest of justice and in the spirit of the
policy which promotes and preserves civil service eligibility.

Respondent’s Arguments

In his Comment21 seeking denial of the petition, respondent counters that completion of all
the academic requirements – and not merely attendance at graduation rites – confers the
necessary degree which qualifies a student to take the CSPE; that petitioner’s claim that he is
a graduate as of 1984 is belied by his Transcript of Records 22 and other pieces of evidence
submitted, which reflect the date of his graduation as October 1995 – or after completion of
his 1.5-unit deficiency in Military Science; that petitioner cannot claim to suffer irreparable
injury or damage as a result of the CSC-CAR’s Decision, which is valid and binding; that the
revocation of petitioner’s eligibility is only proper, since he was then not qualified when he
took the CSPE; that the CSC-CAR was correct in finding that petitioner’s act compromised
the image and integrity of the civil service, which justified the imposition of a corresponding
penalty; that this Court in the Rupa case made it clear that the act of making false entries in
public documents constitutes conduct prejudicial to the best interest of the service, a grave
offense punishable by suspension for six months and one day to one year for the first
offense, and dismissal for the second offense; and that indeed, petitioner violated the
 37

doctrines of primary jurisdiction and exhaustion of administrative remedies when he

proceeded directly to the CA, instead of filing an appeal with the CSC.

Our Ruling

The Court denies the Petition.

Our fundamental law, particularly Sections 2 (1) and 3 of Article IX-B, state that –

Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities and
agencies of the Government, including government-owned or controlled corporations with
original charters.

Section 3. The Civil Service Commission, as the central personnel agency of the Government,
shall establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the
merit and rewards system, integrate all human resources development programs for all levels
and ranks, and institutionalize a management climate conducive to public accountability. It
shall submit to the President and the Congress an annual report on its personnel programs.

Thus, "the CSC, as the central personnel agency of the Government, has jurisdiction over
disputes involving the removal and separation of all employees of government branches,
subdivisions, instrumentalities and agencies, including government-owned or controlled
corporations with original charters. Simply put, it is the sole arbiter of controversies relating
to the civil service."23

In line with the above provisions of the Constitution and its mandate as the central personnel
agency of government and sole arbiter of controversies relating to the civil service, the CSC
adopted Memorandum Circular No. 19, series of 1999 (MC 19), or the Revised Uniform Rules
on Administrative Cases in the Civil Service, which the CA cited as the basis for its
pronouncement. Section 4 thereof provides:

Section 4. Jurisdiction of the Civil Service Commission. — The Civil Service Commission
shall hear and decide administrative cases instituted by, or brought before it, directly or on
appeal, including contested appointments, and shall review decisions and actions of its
offices and of the agencies attached to it.

Except as otherwise provided by the Constitution or by law, the Civil Service Commission
shall have the final authority to pass upon the removal, separation and suspension of all
officers and employees in the civil service and upon all matters relating to the conduct,
discipline and efficiency of such officers and employees.

As pointed out by the CA, pursuant to Section 5(A)(1) of MC 19, the Civil Service Commission
Proper, or Commission Proper, shall have jurisdiction over decisions of Civil Service
Regional Offices brought before it on petition for review. And under Section 43, "decisions of
heads of departments, agencies, provinces, cities, municipalities and other instrumentalities
imposing a penalty exceeding thirty days suspension or fine in an amount exceeding thirty
days salary, may be appealed to the Commission Proper within a period of fifteen days from
receipt thereof."24 "Commission Proper" refers to the Civil Service Commission-Central
Office.25
 38

It is only the decision of the Commission Proper that may be brought to the CA on petition for
review, under Section 50 of MC 19, which provides thus:

Section 50. Petition for Review with the Court of Appeals. – A party may elevate a decision of
the Commission before the Court of Appeals by way of a petition for review under Rule 43 of
the 1997 Revised Rules of Court.26

Thus, we agree with the CA’s conclusion that in filing his petition for review directly with it
from the CSC-CAR Regional Director, petitioner failed to observe the principle of exhaustion
of administrative remedies. As correctly stated by the appellate court, non-exhaustion of
administrative remedies renders petitioner’s CA petition premature and thus dismissible.

The doctrine of exhaustion of administrative remedies requires that "before a party is allowed
to seek the intervention of the court, he or she should have availed himself or herself of all
the means of administrative processes afforded him or her. Hence, if resort to a remedy
within the administrative machinery can still be made by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his or her jurisdiction,
then such remedy should be exhausted first before the court's judicial power can be
sought.1âwphi1 The premature invocation of the intervention of the court is fatal to one’s
cause of action. The doctrine of exhaustion of administrative remedies is based on practical
and legal reasons. The availment of administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies. Furthermore, the courts of justice, for
reasons of comity and convenience, will shy away from a dispute until the system of
administrative redress has been completed and complied with, so as to give the
administrative agency concerned every opportunity to correct its error and dispose of the
case."27 Indeed, the administrative agency concerned – in this case the Commission Proper –
is in the "best position to correct any previous error committed in its forum." 28

The CA is further justified in refusing to take cognizance of the petition for review, as "[t]he
doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority
to resolve a controversy the jurisdiction over which is initially lodged with an administrative
body of special competence."29 When petitioner’s recourse lies in an appeal to the
Commission Proper in accordance with the procedure prescribed in MC 19, the CA may not
be faulted for refusing to acknowledge petitioner before it.

We likewise affirm the CA’s pronouncement that petitioner was negligent in filling up his
CSPE application form and in failing to verify beforehand the specific requirements for the
CSPE examination. Petitioner’s claim of good faith and absence of deliberate intent or willful
desire to defy or disregard the rules relative to the CSPE is not a defense as to exonerate him
from the charge of conduct prejudicial to the best interest of the service; under our legal
system, ignorance of the law excuses no one from compliance therewith. 30 Moreover,
petitioner – as mere applicant for acceptance into the professional service through the CSPE
– cannot expect to be served on a silver platter; the obligation to know what is required for
the examination falls on him, and not the CSC or his colleagues in office. As aptly ruled by
the appellate court:

In Bacaya31 v. Ramos, the Supreme Court found respondent judge guilty of both negligence
and conduct prejudicial to the best interest of the service when he issued an arrest warrant
despite the deletion of the penalty of imprisonment imposed on an accused in a particular
criminal case. Respondent judge in the said case claimed that the issuance of the warrant
was a mistake, done in good faith and that it has been a practice in his office for the Clerk of
Court to study motions and that he would simply sign the prepared order. The Supreme Court
 39

rejected his defense and stated that negligence is the failure to observe such care as a
reasonably prudent and careful person would use under ordinary circumstances. An act of
the will is necessary for deliberate intent to exist; such is not necessary in an act of
negligence.

Here, petitioner failed to verify the requirements before filing his application to take the CSPE
exam. He simply relied on his prior knowledge of the rules, particularly, that he could
substitute his deficiency in Military Science with the length of his government service. He
cannot lay blame on the personnel head of the SSS-Bangued, Abra, who allegedly did not
inform him of the pertinent rules contained in Civil Service Memorandum Circular No. 42,
Series of 1991. For, [if] he were truly a reasonably prudent and careful person, petitioner
himself should have verified from the CSC the requirements imposed on prospective
examinees. In so doing, he would certainly have been informed of the new CSC policy
disallowing substitution of one’s length of government service for academic deficiencies.
Neither should petitioner have relied on an unnamed Civil Service employee’s advice since it
was not shown that the latter was authorized to give information regarding the examination
nor that said employee was competent and capable of giving correct information. His failure
to verify the actual CSPE requirements which a reasonably prudent and careful person would
have done constitutes negligence. Though his failure was not a deliberate act of the will,
such is not necessary in an act of negligence and, as in Bacaya, negligence is not
inconsistent with a finding of guilt for conduct prejudicial to the best interest of the service. 32

The corresponding penalty for conduct prejudicial to the best interest of the service may be
imposed upon an erring public officer as long as the questioned act or conduct taints the
image and integrity of the office; and the act need not be related to or connected with the
public officer’s official functions. Under our civil service laws, there is no concrete
description of what specific acts constitute conduct prejudicial to the best interest of the
service, but the following acts or omissions have been treated as such: misappropriation of
public funds; abandonment of office; failure to report back to work without prior notice;
failure to safe keep public records and property; making false entries in public documents;
falsification of court orders; a judge’s act of brandishing a gun, and threatening the
complainants during a traffic altercation; a court interpreter’s participation in the execution of
a document conveying complainant’s property which resulted in a quarrel in the latter’s
family; selling fake Unified Vehicular Volume Program exemption cards to his officemates
during office hours; a CA employee’s forging of receipts to avoid her private contractual
obligations; a Government Service Insurance System (GSIS) employee’s act of repeatedly
changing his IP address, which caused network problems within his office and allowed him
to gain access to the entire GSIS network, thus putting the system in a vulnerable state of
security;33 a public prosecutor’s act of signing a motion to dismiss that was not prepared by
him, but by a judge;34 and a teacher’s act of directly selling a book to her students in violation
of the Code of Ethics for Professional Teachers. 35 In petitioner’s case, his act of making false
entries in his CSPE application undoubtedly constitutes conduct prejudicial to the best
interest of the service; the absence of a willful or deliberate intent to falsify or make
dishonest entries in his application is immaterial, for conduct grossly prejudicial to the best
interest of the service "may or may not be characterized by corruption or a willful intent to
violate the law or to disregard established rules."36

Finally, the Court cannot consider petitioner's plea that "in the interest of justice and in the
spirit of the policy which promotes and preserves civil service eligibility," his career service
professional eligibility should not be revoked. The act of using a fake or spurious civil
service eligibility for one's benefit not only amounts to violation of the civil service
examinations or CSPE; it also results in prejudice to the government and the public in
general. It is a transgression of the law which has no place in the public
 40

service.37 "Assumption of public office is impressed with the paramount public interest that
requires the highest standards of ethical conduct. A person aspiring for public office must
observe honesty, candor, and faithful compliance with the law. Nothing less is expected." 38

WHEREFORE, the Petition is DENIED. The December 11, 2009 Decision and March 17, 2010
Resolution of the Court of Appeals in CA-G.R. SP No. 94426 are AFFIRMED.

SO ORDERED.

March 8, 2017

G.R. No. 188681

FRANCISCO T. BACULI, Petitioner 
vs
OFFICE OF THE PRESIDENT, Respondent

x-----------------------x

G.R. No. 201130

THE SECRETARY OF AGRARIAN REFORM, and THE REGIONAL DIRECTOR OF AGRARIAN

REFORM, REGION 2, Petitioners, 
vs.
FRANCISCO T. BACULI, Respondent.

DECISION

BERSAMIN, J.:

The law abhors the indefinite preventive suspension of public officials and employees, whether they
are presidential appointees or not. For presidential appointees, the suspension should last only
within a reasonable time. For non-presidential appointees, the maximum period of preventive
suspension is 90 days. Once the allowable period of preventive suspension had been served, the
public officials and employees must be automatically reinstated.

The Case

Under consideration are the consolidated appeals docketed as G.R. No. 188681 and G.R. No.
201130. The appeals relate to the right of a public officer who had been invalidly dismissed from the
service to recover his salaries, benefits and other emoluments corresponding to the period beyond
the period of his preventive suspension pending investigation until the time of his valid dismissal
from the service.

G.R. No. 188681 is the appeal of petitioner Francisco T. Baculi assailing the decision promulgated
on October 29, 2008,  whereby the Court of Appeals (CA) upheld in CA-G.R. SP No. 82629 the
1

decision of the Office of the President dismissing him from the service.
 41

On the other hand, G.R. No. 201130 is the appeal of the Secretary of Agrarian Reform and the
Regional Director of Agrarian Reform for Region 2 assailing the decision promulgated on June 16,
2011,  whereby the CA, in CA-G.R. SP No. 115934, reversed and set aside the decision of the
2

Regional Trial Court (RTC), Branch 3, in Tuguegarao City granting Baculi's petition
for mandamus brought to compel the payment of his salaries, benefits and other emoluments
corresponding to the period following the lapse of his preventive suspension.

Antecedents

The factual and procedural antecedents relevant to G.R. No. 188681 are rendered by the CA in the
assailed decision promulgated in CA-G.R. SP No. 82629, as follows:

On July 16, 1988, the petitioner was appointed as Provincial Agrarian Reform Officer (PARO) II of
the Department of Agrarian Reform (DAR) - Cagayan by then President Corazon C. Aquino. In 1991,
acting in his capacity as PARO II, he entered into several contracts with various suppliers for the
lease of typewriters, computers, computer printers, and other accessories. Separate reports from the
DAR Commission on Audit and the DAR Regional Investigating Committee of Cagayan, however,
revealed that the foregoing transactions were tainted with irregularities. Both bodies found that the
petitioner entered into contracts beyond the scope of his signing or approving authority, which was
up to ₱50,000.00, as provided in DAR General Memorandum Order No. 4, Series of 1990; that he
executed and approved contracts of lease without the corresponding Certificate of Availability of
Funds as provided in Section 86 of Presidential Decree No. 1445, otherwise known as the Auditing
Code of the Philippines; and that there was no public bidding held for the purpose in violation of the
Commission on Audit Circular No. 85-55-A. Based on the said reports, then DAR Secretary Ernesto
D. Garilao, finding the existence of prima facie case, issued on September 4, 1992 a formal charge
against the petitioner for gross dishonesty, abuse of authority, grave misconduct, and conduct
prejudicial to the best interest of the service. Simultaneous to the charge, the petitioner was placed
under preventive suspension for ninety (90) days pending the investigation of the complaint. He was
also required to submit his answer in writing and to state therein whether or not he elects a formal
investigation.

On October 25, 1992, through counsel, the petitioner submitted his Answer with Prayer to Dismiss
Charges and to Lift Preventive Suspension, alleging in his defense that he acted purely for the
benefit of the DAR Provincial Office. In support of his prayer for dismissal of the complaint, he
alleged that the formal charge issued by Secretary Garilao was null and void because it was based
on the report of the DAR Regional Investigating Committee, a body bereft of authority to investigate
administrative complaints against presidential appointees like him pursuant to DAR Memorandum
Order No. 5, Series of 1990.

Thereafter, acting on the formal charge, the DAR Legal Affairs Office conducted a formal
investigation on November 16, 17, and 18, 1992. On May 17, 1994, then DAR Assistant Secretary
for Legal Affairs Hector D. Soliman issued an order dismissing the petitioner from the service.
Secretary Garilao affirmed the said order on August 2, 1994.

The petitioner then appealed to the Civil Service Commission (CSC). Seeing no reversible error,
CSC affirmed the dismissal of the petitioner. He filed a motion for reconsideration but the CSC
refused to reconsider its previous resolution.

Unsatisfied, he found his way to this Court through a petition for review. His effort was not put to
naught when this Court, in its decision promulgated on August 31, 2000, set aside the order of
dismissal of Secretary Garilao and ruled that the former is bereft of disciplinary jurisdiction over
presidential appointees. Hence, his order to remove the petitioner was a total nullity. In the same
 42

fashion, the resolutions of the CSC affirming such order were likewise held null and void. The DAR
Secretary, however, was given the prerogative to forward his findings and recommendations to the
Office of the President for a more appropriate action. The dispositive portion of the said decision
reads:

WHEREFORE, IN VIEW OF THE FOREGOING, this petition is hereby GRANTED. CSC Resolution

Nos. 981412 dated June 9, 1998 and 982476 dated September 23, 1998 are ANNULLED and SET
ASIDE. The Secretary of Agrarian Reform may, however, forward his findings and recommendations
to the Office of the President. No pronouncement as to costs. SO ORDERED.

On the strength of the foregoing decision, the petitioner, through a letter dated January 9, 2001,
requested from then DAR Secretary Horacio Morales to issue an order of reinstatement in his favor.
But, as thus appear on record, he failed to be formally reinstated. Meanwhile, in line with this Court's
decision, succeeding DAR Secretary Hemani A. Braganza forwarded his findings and his
recommendation to dismiss the petitioner from the service, as well as records of the case, to the
Office of the President for proper disposition through a memorandum dated July 4, 2002.

Acting on the said memorandum, then Acting Deputy Executive Secretary for Legal Affairs Manuel
B. Gaite, acting by authority of the President, issued the assailed order, the dispositive portion of
which reads:

WHEREFORE, premises considered, and as recommended by the DAR, Francisco T. Baculi is

hereby dismissed from the service, with all its accessory penalties of forfeiture of financial benefits,
including disqualification from entering government service. Accordingly, the request for
reinstatement is hereby DENIED.

SO ORDERED. 3

The factual and procedural antecedents relevant to G.R. No. 201130 take 9ff from where the
foregoing antecedents end. The CA summed up such antecedents in its decision in CA-G.R. SP No.
115934, to wit:

Armed with the decision of the Court of Appeals [promulgated on August 31, 2000], petitioner
demanded from the DAR Secretary that he be reinstated. According to the petitioner, he was not
reinstated. But in the decision of the court a quo which the petitioner did not refute, it is stated
therein that "petitioner reported for work at the DAR Regional Office No. 2 on March 12, 2001 until
December 31, 2001 during which period, his salary and other emoluments and benefits were paid in
full''.

The DAR Secretary forwarded his findings and recommendations to the Office of the President on
July 4, 2002.  On June 26, 2003, the Office of the President in its Order in OP Case No. 03-11-488,
1âwphi1

dismissed petitioner from the service. For reference, the dismissal order of the Office of the
President is being referred to by petitioner as his "SECOND Dismissal".

Petitioner appealed the order of dismissal of the Office of the President to the Court of Appeals
docketed as CA-G.R. SP No. 82629. For failure of petitioner to attach a copy of CA-G.R. SP No.
82629, this Court secured a copy of the Court's decision from the Record's Division and it appears
that this Court, through the 13th Division, promulgated a decision on October 29, 2008, wherein it
DISMISSED the petition filed by the petitioner. According to the petitioner, the SECOND Dismissal
order is now before the Supreme Court awaiting resolution.
 43

Persistent that his monetary claim be given to him, petitioner sought recourse before the court a
quo for Mandamus to compel the DAR Secretary to pay his basic salaries, other emoluments and
benefits with legal rate of interest, covering the periods of August 2, 1994, when the DAR Secretary
dismissed him from service, to June 25, 2003, a day before the Office of the President rendered its
decision declaring him dismissed from the service.

Finding that petitioner is not entitled to the relief prayed for, the court a quo rendered its judgment on
May 27, 2010, declaring that:

WHEREFORE, premises considered, the petition is dismissed. No pronouncement as to cost. 4

Issues

Although the CA had ruled in favor of Baculi in CA-G.R. SP No. 49656 to the effect that the
resolutions issued by the Civil Service Commission (CSC) affirming his dismissal were void on the
ground that the DAR Secretary had been bereft of disciplinary jurisdiction over him as a presidential
appointee,  the CA upheld his dismissal pursuant to the order of the Office of the President  in CA-
5 6

G.R. SP No. 82629. 7

As a consequence of the dismissal of Baculi by the Office of the President, the CA reversed the
dismissal by the RTC of his petition for mandamus and instead decreed in its decision promulgated
on June 16, 2011 in CA-G.R. SP No. 115934,  as follows:
8

WHEREFORE, the Mandamus on Appeal is hereby GRANTED. The decision appealed from is

REVERSED and SET ASIDE. Petitioner FRANCISCO T. BACULI is granted the back salaries and
other benefits owing his position at the rate last received before the suspension was imposed from
September 4, 1992 to June 25, 2003, except the 90-day period of suspension and the period from
March 12, 2001 to December 31, 2001, wherein petitioner was briefly reinstated.

SO ORDERED. 9

It is significant to observe at this juncture that Baculi had not impugned his preventive suspension
pending investigation upon the filing of the formal charges against him for gross dishonesty, abuse
of authority, grave misconduct, and conduct prejudicial to the best interest of the service. His
challenge had been focused on his FIRST Dismissal by DAR Secretary Garilao, and his non-
reinstatement upon the end of his preventive suspension on December 3, 1992.

As we see it, the issue submitted in G.R. No. 188681 is whether or not the order of dismissal issued
by the Acting Deputy Executive Secretary for Legal Affairs was valid; while the issues in G.R. No.
201130 are: (1) whether or not the CA erred in reversing the findings of the RTC, and in granting the
petition for mandamus; and (2) whether or not the pendency of the case questioning the legality of
the order of dismissal posed a prejudicial question.

Ruling of the Court

We deny the petitions for review on certiorari, and affirm the assailed decisions of the CA
promulgated in CA-G.R. SP No. 82629 and CA-G.R. SP No. 115934.

1.

The FIRST Dismissal of Baculi was void

 44

DAR Secretary Ernesto D. Garilao brought charges against Baculi for gross dishonesty, abuse of
authority, grave misconduct and conduct prejudicial to the best interest of the service based on the
reports issued by the Regional Investigating Committee of the DAR (DAR-RIC) and the Commission
on Audit (COA) about his having violated Presidential Decree No. 1445 (Government Auditing Code
of the Philippines) as well as relevant DAR rules and regulations. He was immediately placed under
preventive suspension for 90 days (i.e., from September 4 to December 3, 1992) as a consequence.

Eventually, DAR Secretary Garilao dismissed Baculi from the service based on the findings and
recommendations of Assistant Secretary Hector Soliman of the DAR Legal Affairs Office.

The CSC affirmed the dismissal of Baculi with modification. It anchored its affirmance on the vesting
of disciplinary jurisdiction in the Department Secretaries, among others, as provided in Section
47(2), Chapter 7, of Book V of the Administrative Code of 1987, viz.:

Section 47. Disciplinary Jurisdiction. -

xxxx

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide matters involving disciplinary action against officers
and employees under their jurisdiction.

xxxx

The foregoing provision seemingly vested the DAR Secretary with the authority to investigate and
decide matters involving disciplinary actions because Baculi, then a Provincial Agrarian Reform
Officer II, was under his administrative supervision and control. This is based on Section 6 and

Section 7(5), Chapter 2, Book IV of the Administrative Code of 1987, to wit:

Section 6. Authority and Responsibility of the Secretary. - The authority and responsibility for the
exercise of the mandate of the Department and for the discharge of its powers and functions shall be
vested in the Secretary, who shall have supervision and control of the

Department.

Section 7. Powers and Functions of the Secretary. - The Secretary shall:

xxxx

(5) Exercise disciplinary powers over officers and employees under the Secretary in accordance with
law, including their investigation and the designation of a committee or officer to conduct such
investigation.

xxxx

On appeal, however, the CA set aside the dismissal, holding in its decision promulgated on August
31, 2000, that the DAR Secretary had no disciplinary authority over Baculi due to his being a
presidential appointee.
 45

Whether or not Baculi belonged to the category of officers and employees under the DAR
Secretary's disciplinary jurisdiction was a question to be determined in conjunction with Section
38(a) of Presidential Decree No. 807 (Civil Service Decree), as follows:

Section 38. Procedure in Administrative Cases Against Non-Presidential Appointees.

(a) Administrative proceedings may be commenced against a subordinate officer or employee by the
head of department or office of equivalent rank, or head of local government, or chiefs or agencies,
regional directors, or upon sworn, written complaint of any other persons.

xxxx

Section 38(a) of Presidential Decree No. 807 has drawn a definite distinction between subordinate
officers or employees who were presidential appointees, on the one hand, and subordinate officers
or employees who were non-presidential appointees, on the other. Without a doubt, substantial
distinctions that set apart presidential appointees from nonpresidential appointees truly existed.  For
10

one, presidential appointees come under the direct disciplining authority of the President pursuant to
the well-settled principle that, in the absence of a contrary law, the power to remove or to discipline
is lodged in the same authority in whom the power to appoint is vested.  Having the power to
11

remove or to discipline presidential appointees, therefore, the President has the corollary authority to
investigate them and look into their conduct in office.
12

Thus, Baculi, as a presidential appointee, came under the disciplinary jurisdiction of the President in
line with the principle that the "power to remove is inherent in the power to appoint."  As such, the
13

DAR Secretary held no disciplinary jurisdiction over him. Verily, Presidential Decree No. 807 has
expressly specified the procedure for disciplinary actions involving presidential appointees.

2.

The SECOND Dismissal of Baculi was valid

On July 4, 2002, Secretary Garilao forwarded his findings and recommendations to the Office of the
President. On June 26, 2003, Acting Deputy Executive Secretary for Legal Affairs Manuel B. Gaite,
acting by authority of the President, issued the order dismissing Baculi from the service. Baculi
treated this as a SECOND Dismissal.

Baculi challenges his SECOND Dismissal on two grounds. The first ground is that the DAR-RIC
lacked the authority to investigate administrative complaints against presidential appointees like him.
He submits that such authority pertained to the DAR's Office of Legal Affairs pursuant to DAR
General Memorandum Order No. 5, Series of 1990; and that the DAR-RIC's lack of authority
rendered its adverse report null and void, and such invalidity made the formal charge against him
baseless.  The second ground is that the order for his SECOND Dismissal should have been issued
14

by the President who should have personally exercised the power to remove him, not by the Acting
Deputy Executive Secretary for Legal Affairs.

We cannot sustain the challenges of Baculi.

First of all, DAR General Memorandum Order No. 5, Series of 1990, whose pertinent text expressly
vested in the DAR's Office of Legal Affairs the authority to investigate administrative complaints
against presidential appointees, presupposed the actual existence of the administrative complaints.
15

In respect of Baculi, however, there was yet no administrative complaint when the DAR-RIC
 46

conducted its investigation. Such administrative complaint came to exist only when Secretary
Garilao brought the formal charge for gross dishonesty, abuse of authority, grave misconduct and
conduct prejudicial to the best interest of the service. Such formal charge became the administrative
complaint contemplated by law.  As a consequence, the DAR-RIC's investigation was separate and
16

apart from the investigation that the DAR Office of Legal Affairs could have conducted once a formal
charge had been initiated.

In the absence of a law or administrative issuance barring the DARRIC from conducting its own
investigation of Baculi even when there was no complaint being first filed against him, the eventual
report rendered after investigation was valid.

And, secondly, it was of no moment to the validity and efficacy of the dismissal that only Acting
Deputy Executive Secretary for Legal Affairs Gaite had signed and issued the order of dismissal. In
so doing, Acting Deputy Executive Secretary Gaite neither exceeded his authority, nor usurped the
power of the President. Although the powers and functions of the Chief Executive have been
expressly reposed by the Constitution in one person, the President of the Philippines, it would be
unnatural to expect the President to personally exercise and discharge all such powers and
functions. Somehow, the exercise and discharge of most of these powers and functions have been
delegated to others, particularly to the members of the Cabinet, conformably to the doctrine of
qualified political agency. Accordingly, we have expressly recognized the extensive range of
17

authority vested in the Executive Secretary or the Deputy Executive Secretary as an official who
ordinarily acts for and in behalf of the President.  As such, the decisions or orders emanating from
18

the Office of the Executive Secretary are attributable to the Executive Secretary even if they have
been signed only by any of the Deputy Executive Secretaries. 19

Given the foregoing, the dismissal of Baculi through the order of June 25, 2003, being by authority of
the President, was entitled to full faith and credit as an act of the President herself.
20

3.

The CA properly granted backwages

After the CA nullified his FIRST Dismissal through the decision promulgated in CA-G.R. SP No.
49656, Baculi commenced in the RTC the special civil action for mandamus to compel the DAR,
represented by the DAR Secretary and its Regional Director of Agrarian Reform for Region 2, to pay
his basic salaries, benefits and other emoluments corresponding to the period from August 2, 1994 -
the date of the FIRST Dismissal - until June 25, 2003 - the date when the Office of the President
dismissed him from the service, plus interest at the legal rate.

The DAR countered in that suit that Baculi's monetary claim was unfounded because he had not
been exonerated from the offenses charged against him.  It reminded that the decision of the CA did
1âwphi1

not exculpate him, but even suggested that the DAR Secretary could still forward the findings
against him to the Office of the President for proper action.

After the RTC dismissed the petition for mandamus, Baculi appealed to the CA to reverse the
dismissal of his petition (CA-G.R. SP No. 115934).

Ultimately, on June 16, 2011, the CA reversed the RTC,  and decreed in its decision promulgated in
21

CA-G.R. SP No. 115934 that Baculi was entitled to the back salaries and other benefits owing to his
position at the rate last received before the suspension was imposed from September 4, 1992 to
June 25, 2003 except the 90-day period of preventive suspension and the period from March 12,
2001 to December 31, 2001 during which he was briefly reinstated.
 47

We affirm the CA.

By law, Baculi should have been automatically reinstated at the end of the 90-day period of his
preventive suspension because his case was not finally decided within the said period.

We have to point out that preventive suspension is of two kinds. The first is the preventive
suspension pending investigation, and the second is the preventive suspension pending appeal
where the penalty imposed by the disciplining authority is either suspension or dismissal but after
review the respondent official or employee is exonerated.  The nature of preventive suspension
22

pending investigation has been explained in the following manner:

x x x Preventive suspension pending investigation is not a penalty. It is a measure intended to

enable the disciplining authority to investigate charges against respondent by preventing the latter
from intimidating or in any way influencing witnesses against him. If the investigation is not finished
and a decision is not rendered within that period, the suspension will be lifted and the respondent will
automatically be reinstated. If after investigation, respondent is found innocent of the charges and is
exonerated, he should be reinstated. 23

Preventive suspension pending investigation is not violative of the Constitution because it is not a
penalty.  It is authorized by law whenever the charge involves dishonesty, oppression or grave
24

misconduct, or neglect in the performance of duty, or whenever there are reasons to believe that the
respondent is guilty of charges that would warrant removal from the service.  If the proper
25

disciplinary authority does not finally decide the administrative case within a period of 90 days from
the start of preventive suspension pending investigation, and the respondent is not a presidential
appointee, the preventive. suspension is lifted and the respondent is "automatically reinstated in the
service."  In the case of presidential appointees, the preventive suspension pending investigation
26

shall be "for a reasonable time as the circumstances of the case may warrant." 27

Nonetheless, there shall be no indefinite suspension pending investigation, whether the respondent

officials are presidential or nonpresidential appointees. The law abhors indefinite preventive
suspension because the indefiniteness violates the constitutional guarantees under the due process
and equal protection clauses,  as well as the right of public officers and employees to security of
28

tenure. The abhorrence of indefinite suspensions impelled the Court in Gonzaga v.

Sandiganbayan  to delineate rules on preventive suspensions pending investigation, viz.:
29

To the extent that there may be cases of indefinite suspension imposed either under Section 13 of
Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that
this Court set forth the rules on the period of preventive suspension under the aforementioned laws,
as follows:

1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a
maximum period of ninety (90) days, from issuance thereof, and this applies to all public officers, (as
defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act.

2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or
employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4
of said Pres. Decree 807; and shall be limited to a maximum period of ninety (90) days from
issuance, except where there is delay in the disposition of the case, which is due to the fault,
negligence or petition of the respondent, in which case the period of delay shall not be counted in
computing the period of suspension herein stated; provided that if the person suspended is a
presidential appointee, the continuance of his suspension shall be for a reasonable time as the
circumstances of the case may warrant. 30
 48

It cannot be validly argued that in the case of presidential appointees the preventive suspension
pending investigation can be indefinite. The Court discredited such argument in Garcia v. The Executive
Secretary,   and directed the immediate reinstatement of a presidential appointee whose preventive
31

suspension had lasted for nearly seven months, declaring:

To adopt the theory of respondents that an officer appointed by the President, facing administrative
charges, can be preventively suspended indefinitely, would be to countenance a situation where the
preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing,
contrary to the express mandate of the Constitution and the Civil Service law. This, it is believed, is not
conducive to the maintenance of a robust, effective and efficient civil service, the integrity of which has,
in this jurisdiction, received constitutional guarantee, as it places in the hands of the Chief Executive a
weapon that could be wielded to undermine the security of tenure of public officers. Of course, this is
not so in the case of those officers holding office at the pleasure of the President. But where the tenure
of office is fixed, as in the case of herein petitioner, which according to the law he could hold "for 6 years
and shall not be removed therefrom except for cause", to sanction the stand of respondents would be
to nullify and render useless such specific condition imposed by the law itself If he could be preventively
suspended indefinitely, until the final determination of the administrative charges against him (and
under the circumstances, it would be the President himself who would decide the same at a time only
he can determine) then the provisions of the law both as to the fixity of his tenure and the limitation of
his removal to only for cause would be meaningless. In the guise of a preventive suspension, his term of
office could be shortened and he could, in effect, be removed without a finding of a cause duly
established after due hearing, in violation of the Constitution. This would set at naught the !
audible (sic)  purpose of Congress to surround the tenure of office of the Chairman of the National
Science Development Board, which is longer than that of the President himself, with all the safeguards
compatible with the purpose of maintaining the office of such officer, considering its highly scientific and
technological nature, beyond extraneous influences, and of insuring continuity of research and
development activities in an atmosphere of stability and detachment so necessary for the fulfillment of
its mission, uninterrupted by factors other than removal for cause.  (Bold underscoring supplied for
32

emphasis)

In Layno, Sr. v. Sandiganbayan,   the Court has further reminded that preventive suspension pending
33

investigation for an indefinite period of time, like one that would last until the case against the
incumbent official would have been finally terminated, would "outrun the bounds of reason and result
in sheer oppression," and would be a denial of due process.

Conformably with the foregoing disquisitions, we hold that the CA correctly decreed that Baculi should
be paid his back salaries and other benefits for the entire time that he should have been automatically
reinstated  at the rate owing to his position that he last received prior to his preventive suspension on
September 4, 1992. Such time corresponded to the period from December 4, 1992 until June 25, 2003,
but excluding the interval from March 12, 2001 until December 31, 2001 when he was briefly reinstated.

We no longer find the need to dwell on and resolve whether or not G.R. No. 188681 posed a prejudicial
question in relation to G.R. No. 201130. Such issue was rendered moot by the consolidation of the
appeals.

WHEREFORE, the Court:
(1) DENIES the petition for review on certiorari  in G.R. No. 188681, and AFFIRMS the decision
promulgated in CA-G.R. SP No. 82629; and
 49

(2) DENIES the petition for review on certiorari  in G.R. No. 201130, and AFFIRMS the decision
promulgated in CA-G.R. SP No. 115934.
No pronouncement on cost of suit.
SO ORDERED.

EN BANC

G.R. No. 108072 December 12, 1995

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

VITUG, J.:

The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770,  otherwise1

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,  otherwise known as the Local Government Code of 1991, is the pivotal issue before the Court
2

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,  who took the initiative in instituting this special civil action for certiorari and
4

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 Cañete 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,  Articles 5

170  and 171  of the Revised Penal Code; and R.A. No. 6713. Councilors Dionson and Bercede
6 7 8

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
 50

P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. The
complaints were separately docketed as Criminal Case No. OMB-VIS-92-391 and as Administrative
Case No. OMB-VIS-ADM-92-015.

A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by
Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against
respondent officials. The next day, petitioner ordered respondents, including Acting Mandaue City
Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-
affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede
moved for the preventive suspension of respondent officials in the separately docketed
administrative case.

Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992,
prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft
of jurisdiction to try, hear and decide the administrative case filed against them since, under Section
63 of the Local Government Code of 1991, the power to investigate and impose administrative
sanctions against said local officials, as well as to effect their preventive suspension, had now been
vested with the Office of the President.

In their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local
Government Code of 1991 could not have repealed, abrogated or otherwise modified the pertinent
provisions of the Constitution granting to the Ombudsman the power to investigate cases against all
public officials and that, in any case, the power of the Ombudsman to investigate local officials under
the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of
1991.

During the hearing on the motion for preventive suspension, the parties were directed by the Deputy
Ombudsman to file their respective memoranda.

In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local
Government Code of 1991, the Office of the President, not the Office of the Ombudsman, could
lawfully take cognizance of administrative complaints against any elective official of a province, a
highly urbanized city or an independent component city and to impose disciplinary sanctions,
including preventive suspensions, and that there was nothing in the provision of the Constitution
giving to the Office of the Ombudsman superior powers than those of the President over elective
officials of local governments.

In an Order,  dated 10 September 1992, the Office of the Deputy Ombudsman denied the motion to
9

dismiss and recommended the preventive suspension of respondent officials, except City Budget
Officer Pedro M. Guido, until the administrative case would have been finally resolved by the
Ombudsman.  Respondent officials were formally placed under preventive suspension by the
10

Deputy Ombudsman pursuant to an Order  of 21 September 1992.

11

On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary injunction and
temporary restraining order, was filed by respondent officials with the Regional Trial Court of
Mandaue City. Acting favorably on the pleas of petitioning officials, respondent Judge issued, on
even date, a restraining order directed at petitioner, enjoining him ". . . from enforcing and/or
implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015."

Petitioner moved to dismiss the petition but it was to no avail. The court a quo, on 15 October 1992,
denied the motion to dismiss and issued an Order for the issuance of a writ of preliminary injunction,
holding thusly:
 51

So by following and applying the well-established rules of statutory construction that

endeavor should be made to harmonize the provisions of these two laws in order that
each shall be effective, it is the finding of this Court that since the investigatory power
of the Ombudsman is so general, broad and vague and gives wider discretion to
disciplining authority to impose administrative sanctions against a responsible public
official or employee while that of Section 60 of the New Local Government Code
provides for more well defined and specific grounds upon which a local elective
official can be subjected to administrative disciplinary action, that it Could be
considered that the latter law could be an exception to the authority and
administrative power of the Ombudsman to conduct an investigation against local
elective officials and as such, the jurisdiction now to conduct administrative
investigation against local elective officials is already lodged before the offices
concerned under Section 61 of Republic Act No. 7160.

xxx xxx xxx

WHEREFORE, foregoing premises considered, Order is hereby issued:

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

2) Denying the respondent's Motion to Dismiss dated September 28, 1992 for lack of
merit.

SO ORDERED.  12

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

by petitioner was denied by the trial court.

The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of
preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent
judge be directed to desist from further proceeding with RTC Case No. MDE-14.

There is merit in the petition.

The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the
1987 Constitution,  thus:
14

Sec. 13. The Office of the Ombudsman shall have the following powers, functions,
and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient;

while his statutory mandate to act on administrative complaints is contained in Section 19 of

R.A. No. 6770 that reads:
 52

Sec. 19. Administrative complaints. — The Ombudsman shall act on all complaints
relating, but not limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

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

accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of 

justification.

Section 21 of the same statute names the officials who could be subject to the disciplinary
authority of the Ombudsman, viz.:

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials
of the Government and its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned or controlled
corporations and their subsidiaries except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied)

Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the
Office of the Ombudsman correspondingly has the authority to decree preventive suspension
on any public officer or employee under investigation by it. Said section of the law provides:

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in his
judgment, the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of
the Ombudsman but not more than six months, without pay, except when the delay
in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.

Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman
over local officials must be deemed to have been removed by the subsequent enactment of the
Local Government Code of 1991 which vests the authority to investigate administrative charges,
listed under Section 60  thereof, on various offices. In the case specifically of complaints against
15

elective officials of provinces and highly urbanized cities, the Code states:
 53

Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint

against any erring local elective officials shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the
President.

Thus respondents insist, conformably with Section 63 of the Local Government Code,
preventive suspension can only be imposed by: ". . . the President if the respondent is an
elective official of a province, a highly urbanized or an independent component city; . . . "
under sub-paragraph (b) thereof:

(b) Preventive suspension may be imposed at any time after the issues are joined,
when the evidence of guilt is strong, and given the gravity of the offense, there is
great probability that the continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records and other
evidence; Provided, That, any single preventive suspension of local elective officials
shall not extend beyond sixty (60) days: Provided, further, That in the event that
several administrative cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within a single year on the
same ground or grounds existing and known at the time of the first suspension.

In his comment, which the Court required considering that any final resolution of the case would be a
matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as
having conferred, but not on an exclusive basis, on the Office of the President (and the various
Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did
not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a
constitutional mandate. In passing, the Solicitor General has also opined that the appropriate
remedy that should have been pursued by respondent officials is a petition for certiorari before this
Court rather than their petition for prohibition filed with the Regional Trial Court.

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are
not favored,  and that courts must generally assume their congruent application.  The two laws must
16 17

be absolutely incompatible,  and a clear finding thereof must surface, before the inference of implied
18

repeal may be drawn.  The rule is expressed in the maxim, interpretare et concordare legibus est
19

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.  The fundament is that the legislature should be
20

presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes.  Hence, all doubts must be resolved against any implied repeal,  and all efforts should be
21 22

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,   under the heading of "Suspension and Removal," read:
25
 54

Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective
officials shall be prepared as follows:

(a) Against any elective provincial or city official, before the Minister of Local
Government.

Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by

the Minister of Local Government if the respondent is a provincial or city official, by
the provincial governor if the respondent is an elective municipal official, or by the
city or municipal mayor if the respondent is an elective barangay official.

(2) Preventive suspension may be imposed at any time after the issues are joined,
when there is reasonable ground to believe that the respondent has committed the
act or acts complained of, when the evidence of culpability is strong, when the gravity
of the offense so warrants, or when the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence. In all cases, preventive suspension shall not extend beyond sixty
days after the start of said suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him until its
termination. However, if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time of
suspension.

The authority to conduct administrative investigation and to impose preventive suspension

over elective provincial or city officials was at that time entrusted to the Minister of Local
Government until it became concurrent with the Ombudsman upon the enactment of R.A.
No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant.
The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from
what already prevailed, the modification being only in the substitution of the Secretary (the
Minister) of Local Government by the Office of the President.

Respondent local officials contend that the 6-month preventive suspension without pay under
Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension
provided by Section 63 of the Local Government Code to even now maintain its application. The two
provisions govern differently. In order to justify the preventive suspension of a public official under
Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the
officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges should warrant removal from the service; or (c) the
respondent's continued stay in office would prejudice the case filed against him. The Ombudsman
can impose the 6-month preventive suspension to all public officials, whether elective or appointive,
who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days
of preventive suspension prescribed in the Local Government Code of 1991 on an elective local
official (at any time after the issues are joined), it would be enough that (a) there is reasonable
ground to believe that the respondent has committed the act or acts complained of, (b) the evidence
of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of
the respondent could influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence.

Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when
he caused the issuance of the preventive suspension order without any hearing.
 55

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,  reiterated in subsequent
26

cases,  we have said:

27

In connection with the suspension of petitioner before he could file his answer to the
administrative complaint, suffice it to say that the suspension was not a punishment
or penalty for the acts of dishonesty and misconduct in office, but only as a
preventive measure. Suspension is a preliminary step in an administrative
investigation. If after such investigation, the charges are established and the person
investigated is found guilty of acts warranting his removal, then he is removed or
dismissed. This is the penalty. There is, therefore, nothing improper in suspending an
officer pending his investigation and before the charges against him are heard and
be given an opportunity to prove his innocence.

Moreover, respondent officials were, in point of fact, put on preventive suspension only after
petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier,  that the evidence of
28

guilt was strong. Petitioner gave his justification for the preventive suspension in this wise:

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

Finally, it does appear, as so pointed out by the Solicitor General, that respondent official's petition
for prohibition, being an application for remedy against the findings of petitioner contained in his 21
September 1992 order, should not have been entertained by the trial court. The proscription in
Section 14 of R.A. No. 6770 reads:

Sec. 14. Restrictions. — No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is
a prima facie evidence that the subject matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or
findings of the Ombudsman, except the Supreme Court, on pure question of law.

Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court
on matters involving orders arising from administrative disciplinary cases originating from the
Office of the Ombudsman; thus:

Sec. 27. Effectivity and Finality of Decisions. — . . .

 56

In all administrative disciplinary cases, orders, directives, or decisions of the Office of

the Ombudsman may be appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with
Rule 45 of the Rules of Court. (Emphasis supplied)

All told, petitioner is plainly entitled to the relief prayed for, and we must, accordingly; grant the
petition.

WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is ANNULLED and
SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED. No costs.

SO ORDERED.

EN BANC

G.R. No. 93252 November 8, 1991

RODOLFO T. GANZON, petitioner, 
vs.
THE COURT OF APPEALS AND LUIS T. SANTOS, respondents.

G.R. No. 93746 November 8, 1991

MARY ANN RIVERA ARTIEDA, petitioner, 

vs.
HON. LUIS SANTOS, in his capacity as Secretary of the Department of Local Government,
NICANOR M. PATRICIO, in his capacity as Chief, Legal Service of the Department of Local
Government and SALVADOR CABALUNA, respondents.

G.R. No. 95245 November 8, 1991

RODOLFO T. GANZON, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS and LUIS T. SANTOS, in his capacity as the
Secretary of the Department of Local Government, respondents.

Manuel Lazaro and Vincent Rondaris for petitioner in G.R. Nos. 93252 & 95245.

RESOLUTION

PADILLA, J.:

Before the Court for resolution are the various issues raised by Rodolfo T. Ganzon's urgent motion,
dated 7 September 1991, wherein he asks the Court to dissolve the temporary restraining order
 57

(TRO) it had issued, dated 5 September 1991, against the TRO earlier issued by the Court of
Appeals in CA-G.R. SP No. 25840 entitled Ganzon vs. Santos, et al.

On 5 August 1991, the Court's decision in the present case was promulgated, upholding the validity
of the orders of preventive suspension issued by respondent Secretary Santos, the dispositive part
of which decision reads:

WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary

Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED,
provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future
suspensions on account of any of the remaining administrative charges pending against him
for acts committed prior to August 11, 1988. The Secretary of Interior is ORDERED to
consolidate all such administrative cases pending against Mayor Ganzon.

The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED No
costs.  1

A brief summary of the facts that led to this Court's decision of 5 August 1991 ("main decision", for brevity) is as follows:

1. Sometime in 1988, a series of ten (10) administrative complaints were filed by various city officials, against petitioner Ganzon, the elected City Mayor of Iloilo
City, on various charges such as abuse of authority, oppression, grave misconduct and others.

2. In the course of the hearing of the administrative cases, respondent Secretary Santos issued against petitioner Ganzon three (3) separate orders of preventive
suspension dated 11 August 1988, 11 October 1988, and 3 May 1990, each of the orders to last for a 60-day period.

Petitioner assailed the validity of the said orders by filing with the Court of Appeals two (2) separate petitions for prohibition docketed CA-G.R. SP No. 16417 and CA-G.R. SP No. 20736. On 7 September 1988 and 5 July 1990, the appellate
court rendered the decision in CA-G.R. SP Nos. 16417 and 20736 dismissing the petitions for lack of merit. Hence, petitioner Ganzon filed with this Court two (2) separate petitions assailing the decision in CA-G.R. SP No. 16417 (subject of
G.R. No. 93252), and that in CA-G.R. SP No. 20736 (subject of G.R. No. 95245) 2

3. On 26 June 1990, we issued a Temporary Restraining Order barring the respondent Secretary from implementing the suspension orders, and restraining the
enforcement of the Court of Appeals' two (2) decisions.

However, it appears that even before the promulgation on 5 August 1991 of the main decision, respondent Secretary Santos had issued on 3 July 1991 against petitioner
Ganzon another order of preventive suspension in connection with Administrative Case No. 51-90 filed by complainant Octavius J. Jopson, which order states:

It appearing from a perusal of the complaint as well as the answer in Administrative Case No 51-90, entitled Octavius J. Jopson, Complainant, versus, Mayor
Rodolfo T. Ganzon, Respondent, for Oppression, etc., that there is reasonable ground to believe that Respondent has committed the act or acts complained of,
as prayed for by Complainant Jopson, you are hereby preventively suspended from office for a period of sixty(60) days effective immediately. (Emphasis
supplied)
 58

On 6 July 1991, petitioner Ganzon filed his "extremely urgent motion" (with supplemental motions later filed) questioning the validity of the said last mentioned suspension
order. This Court issued a resolution dated 9 July 1991, requiring respondents to comment on petitioner's urgent motion.

After the main decision in the present petitions was rendered by the Court on 5 August 1991, respondents filed motions dated, 9 and 29 August 1991 alleging therein that the
issues raised in petitioner's motion (6 July 1991) were rendered moot and academic by the said decision, and seeking clarification on whether it was still necessary to comply
with this Court's resolutions requiring respondents to file comment on petitioner's said motion of 6 July 1991.

Meanwhile, on 29 August 1991, respondent Santos issued a memorandum addressed to petitioner Ganzon, in connection with the 5 August 1991 main decision, stating
therein that the third order of preventive suspension issued against petitioner on 3 May 1990 shall be deemed in force and effect. The memorandum states:

The Supreme Court, in its Decision in the above-referred cases, which affirmed the authority of the Secretary of Local Government to discipline local elective
officials, explicitly states that,

We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and lifting for the purpose, the Temporary
Restraining Order earlier issued . . .

In view thereof, the third preventive suspension imposed on you, photo copy of which is hereto attached, is hereby deemed in force.

On 30 August 1991, petitioner Ganzon filed with the Court of Appeals a petition for mandamus, docketed CA-G.R. SP No. 25480 against respondents. On the same day,
petitioner filed in these petitions his "manifestation and compliance," alleging that he had already fully served the suspension orders issued against him, in compliance with the
main decision of 5 August 1991, and that he should be allowed to re-assume his office starting 4 September 1991.

Meanwhile, in reaction to the memorandum dated 29 August 1991 issued by respondent Santos, petitioner filed in CA-G.R. SP No. 25840 a motion praying for the issuance of
a temporary restraining order, which motion was granted by the Court of Appeals, when on 3 September 1991, it (CA) issued the said TRO. On 4 September 1991,
respondents filed with this Court a motion asking for the issuance of a restraining order addressed to the Court of Appeals and against the TRO issued in CA-G.R. SP No.
25840. Granting respondents' motion, this Court on 5 September 1991 issued a temporary restraining order directing the Court of Appeals to cease and desist from
implementing the TRO it had issued dated 3 September 1991 immediately suspending the implementation of the order of the Secretary of Interior and Local Government
dated 29 August 1991. On 9 September 1991, petitioner Ganzon filed a motion to dissolve this Court's restraining order dated 5 September 1991.

 ) was issued
The records show that petitioner Ganzon, to this date, remains suspended from office (as the elected Mayor of Iloilo City) and since the order of preventive suspension dated 3 July 1991 (the fourth suspension order 3

against him by respondent Secretary; in other words, he has been serving the said fourth
suspension order which is to expire after a period of 60 days, or on 4 September 1991.

Similar to the argument raised in his petition filed with the Court of Appeals in CA-G.R. SP No.
25840, petitioner Ganzon, in support of his plea for the lifting of the TRO dated 5 September 1991
issued by this Court, in re: TRO dated 3 September 1991, issued by Court of Appeals, contends that
inasmuch as he has already served fully the suspension orders issued against him, in compliance
with the mandate of this Court's decision dated 5 August 1991, coupled with the fact that he had also
completely served by 4 September 1991 the fourth order of preventive suspension dated 3 July
1991, he should therefore be allowed to re-assume his office starting 4 September 1991.

On the other hand, respondent Secretary maintains that petitioner Ganzon can be allowed to return
to his office (as Mayor of Iloilo City) only after 19 October 1991, as it is only after such date when
petitioner may be said to have fully served the preventive suspension orders as decreed in the main
decision and in the order dated 3 July 1991 (fourth suspension).

The question then is when petitioner Ganzon may be allowed to re-assume his position and duties
as mayor of Iloilo City. Is it only after 19 October 1991 as claimed by respondents, or at some earlier
 59

date? The answer to this question would depend on how petitioner has served the preventive
suspension orders issued against him.

We note that the main decision refers to three (3) orders of preventive suspension each to last for 60
days. The first, dated 11 August 1988, was admittedly fully served by petitioner. The second order
dated 11 October 1988 was not served because its enforcement was restrained by an order of the
Regional Trial Court of Iloilo City upon petition of petitioner himself.   As to the third order dated 3 4

May 1990, the main decision states that petitioner is allowed to serve the duration of said third
suspension order. It would seem, therefore, that after petitioner has served in full the third
suspension order as decreed in the main decision, he can then return to his official duties as Iloilo
City Mayor.

However, we must also take note of the supervening 3 July 1991 order, again suspending petitioner
from office for another 60 days, which order was issued even before the main decision of 5 August
1991 was promulgated. (The records show, however, that petitioner has in fact fully served the
fourth suspension order, as admitted by respondents no less. This will be discussed shortly; but any
issue on its validity is now moot and academic.  Besides, it is clear that this fourth suspension order 5

is not one of the three orders covered by and subject of the main decision).

Considering, nonetheless, the necessity of serving the third and fourth orders of suspension, there is
need to look into when petitioner started to serve these orders so as to determine when their
service expires.

Petitioner contends that the following are the periods within which he stayed out of his office as he
was serving the orders of preventive suspension issued against him:

FROM Up to and Including

May 4, 1990 May 18, 1990  6

June 9, 1990 June 26, 1990 7

July 5, 1991 September 3, 1991 8

Petitioner argues that for the periods of 4 May 18 May 1990, and 9 June to 26 June 1990, he was serving the third suspension order; whereas for the period of 5 July to 3
September 1991, he was then serving the fourth suspension order.

 Respondent denies that from

On the other hand, respondent Secretary contends that as to the third order of preventive suspension, dated 3 May 1990, petitioner served it only from 4 May 1990 to 19 May 1990.9

11 June to 30 June 1990   petitioner had served again the third suspension order.
10

As to the fourth suspension order, respondent Secretary confirms that petitioner served it starting
from 5 July 1991 to 3 September 1991.  11

As regards the third suspension order, it is noted that though both parties admit that petitioner started serving it on 4 May 1990, they however differ as to when the service ended (Petitioner claims he served it even after 18 May 1990, whereas, respondent claims
it ended 19 May 1990.) In view of this divergence, the Court rules that the third order was served by petitioner from 4 May 1990 up to 18 May 1990 only, the latter date being the date when the Court of Appeals issued a TRO in CA-G.R. SP No.

 and thus, interrupted petitioner's service of the suspension orders and enabled him re-assume
20736, 12

his office as Iloilo City Mayor.

We also do not accept petitioner's contention that from 9 June 1990 up to 26 June 1990   he again 13

started to serve the third suspension order, inasmuch as during the period of 9 June 1990 to 26 June
 60

1990, the records show that he was then in office discharging the functions of the Mayor of Iloilo
City.   In sum, we rule that petitioner served the third suspension order only from 4 May 1990 up to
14

18 May 1990.

The period from 4 May 1990 to 18 May 1990 is equivalent to fourteen (14) days.   Hence, as to the
15

third suspension order (3 May 1990), petitioner having served fourteen (14) days of the 60-day
preventive suspension imposed in the order, 46 days still remained to be served by him as decreed
in the main decision. If we follow the mandate of such main decision which ordained that the third
order be served and that the temporary restraining order   against it be lifted, it would follow that the
16

remaining 46 days should be served starting 5 August 1991 (date of promulgation of main decision)
until fully served. Another way to serve the 46 days would be to begin serving it only on 4 September
1991 (the day after 3 September 1991 which was the last day of service for the fourth suspension
order), or until 20 October 1991 (the 46th day from 4 September 1990).

However we take note of the fact that petitioner has already fully served the 60-day fourth order of
preventive suspension which started 5 July 1991 (that is, even before the main decision was
rendered) and ended on 3 September 1991. Petitioner raises the issue of whether he could or
should be allowed to serve the third and the fourth orders "simultaneously". If we allow his
submission and accept "simultaneous service", it would mean the following: that from 5 August 1991
(the date the TRO issued by this Court was lifted) up to 3 September 1991 (the last day for serving
the fourth order), twenty-nine (29) days have elapsed; that these twenty-nine (29) days which form
part of his service for the fourth order can be also credited to his favor by treating said twenty-nine
(29) days as forming part of his service of the third order; if this were so, he would need to serve only
seventeen (17) days more to complete the service of the third order; said seventeen (17) days from
3 September 1991 will expire on 20 September 1991, which would be the last day for serving the
third suspension order.

Respondents however object to adopting the idea of "simultaneous service," of preventive

suspensions as, according of them, this is not allowed under the Local Government Code.

We agree with petitioner that he can be allowed the benefit of simultaneous service of the third and
fourth suspension orders, for the following reasons.

If simultaneous service of two (2) suspension orders is allowed, this would work in favor of the
petitioner (an elective local official) as the balance of his third preventive suspension would, in effect,
be reduced from 46 days to 17 days.

It will be recalled that, in the main decision, noting that successive suspensions have been inflicted
on Mayor Ganzon we stated that what "is intriguing is that respondent Secretary has been cracking
down, so to speak, on the Mayor piecemeal — apparently, to pin him down ten times the pain, when
he, the respondent Secretary could have pursued a consolidated effort."   Surely, allowing petitioner
17

to serve simultaneously the overlapping third and fourth suspensions will favor him, (and presumably
the local constituency) and certainly lessen if not offset the harsh effects of whatever motive may be
behind the intriguing action of the respondent Secretary in issuing those successive suspension
orders.

Furthermore, we may already take judicial notice of the recently-approved Local Government Code
of 1991 (recently signed into law by the President)   which provides (as to imposition of preventive
18

suspensions) as follows:

Sec. 63. Preventive Suspension

 61

x x x           x x x          x x x

b) . . . that, any single preventive suspension of local elective official 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. (emphasis supplied)

Since we can allow, as we here allow, under the bizarre circumstances of this case, petitioner to
serve the third and fourth orders simultaneously (insofar as they overlap), this means that, as
explained earlier, petitioner shall serve only 17 days more (not 46 days) to complete the service of
the third order, that is, starting from 3 September 1991 and ending on 20 September 1991. Hence,
as of this latter date, petitioner has complied with the mandate of the main decision for he has
already fully served the third preventive suspension which ended on 20 September 1991.

But then another issue is raised by respondents, i.e. that considering that the main decision refers to
the first, second and third orders of preventive suspension (as far as Mayor Ganzon is concerned),
petitioner, apart from serving the third order (the first one having been fully served), should also
serve the second order (for another 60 days) as the latter has admittedly not been serve yet due to a
restraining order issued by a trial court,   and considering that the dispositive portion of the main
19

decision decreed that "suspensions of petitioners (including the other petitioner Artieda in G.R. No.
93746) are affirmed."

We agree with the respondents on this point.

The main decision refers to the three (3) suspension orders — the first, the second and the third. As
shown earlier, the first and the third orders have already been served. It is only the second order
which seems to have been unserved. If we follow the decision which states that the three (3)
suspensions are affirmed, there appears to be no reason why the second order should not be served
for another 60-day period. However, there is no cogent reason why, under the bizarre circumstances
of this case — where the respondent Secretary has chosen to impose preventive suspensions
piecemeal, instead of consolidating the several administrative cases of similar nature and close
vintage — we cannot allow the concept of simultaneous service to apply to the second order (as we
did in the third order). It would follow then that the second order is also fully served to this date for
the service of said second order would have started on 5 August 1991 (when the main decision was
rendered as this was the time when this Court found and affirmed the validity of the three (3)
suspension orders, including the second order). The 60-day period from 5 August 1991 expired on 4
October 1991.

It appears that as to the second preventive suspension, petitioner manifested that there is still an
existing preliminary injunction issued by the RTC of Iloilo City, Branch 33 in Special Civil Action No.
18312, entitled Ganzon vs. Santos, et al.  20

One may ask as to the status of the case pending with the RTC, Iloilo City, Branch 33 insofar as the said case involves the issue on the validity of the second preventive
suspension order. Under the main decision of this Court, dated 5 August 1991, second preventive suspension has been affirmed; under the present resolution, said second
preventive suspension has been served. Consequently, Special Civil Action No. 18312 before the Regional Trial Court of Iloilo City has been rendered moot and academic,
insofar as the second preventive suspension order is concerned.
 62

As to the petition (docketed CA-G. R. SP No. 25840) filed with the Court of Appeals, which involves the question of the validity of the fourth order, and which has clearly been served, petitioner admitted that he filed it, on the belief that it was the proper remedy for

As we have ruled that petitioner has served the suspension

his reinstatement to office; thinking that his suspensions have been served and ended. 21

orders decreed in the main decision and in the light of the finding of this Court that the fourth
preventive suspension order has been served, the issues raised in CA-G.R. SP No. 25840; have
also become moot and academic, warranting dismissal thereof.

WHEREFORE, the urgent motion of petitioner, dated 7 September 1991 is hereby GRANTED. The
temporary restraining order dated 5 September 1991 is hereby LIFTED. Respondents are ordered to
allow petitioner to re-assume his office as elected Mayor of Iloilo City effective immediately.

The Court of Appeal is directed to dismiss CA-G.R. SP No. 25840 for having become moot and
academic. The Region Trial Court of Iloilo City, Branch 33 before which petitioner's action for
prohibition (Special Civil Action No. 18312) is pending is also ordered to dismiss the said case for
having become moot and academic insofar as petitioner prays therein to enjoin his (second)
preventive suspension.

This resolution is without prejudice to the administrative cases (where the first, second, third and
fourth preventive suspension orders were issued) proceeding on the merits thereof. Also, as decreed
in the main decision of 5 August 1991.

. . . petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on
account of any of the remaining administrative charges pending against him for acts
committed prior to August 11, 1988. . . .

SO ORDERED.

EN BANC

G.R. NO. 154098 July 27, 2005

JOSE C. MIRANDA, Petitioners, 
vs.
HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, in his capacity
as Secretary of the DILG,* and FAUSTINO DY, JR. in his capacity as Governor of the Province
of Isabela, Respondents.

DECISION

PUNO, J.:

First, the facts.

The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago
City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for
alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees.1Subsequently, then Vice Mayor Amelita S. Navarro
(Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1
December 1997 which was docketed as OMB-1-97-2312. 2 In the said Complaint, Vice Mayor
Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the
continuing effectivity of the Ombudsman’s preventive suspension order: (a) issued a memorandum
addressed to Navarro advising her that he was assuming his position as City Mayor; 3 (b) gave
directives to the heads of offices and other employees; 4 (c) issued Office Order No. 11-021 which
 63

authorized certain persons to start work;5 and (d) insisted on performing the functions and duties of
Mayor despite Navarrro’s requests to desist from doing so without a valid court order and in spite of
the order of Department of Interior and Local Government (DILG) Undersecretary Manuel Sanchez
directing him to cease from reassuming the position. 6 Vice Mayor Navarro contended that Mayor
Miranda committed the felony of usurpation of authority or official functions under Article 177 of the
Revised Penal Code (RPC).7

In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer
and in good faith.8 He contended that under Section 63(b) of the Local Government Code, local
elective officials could not be preventively suspended for a period beyond 60 days. 9 He also averred
that, on the day he reassumed office, he received a memorandum from DILG Undersecretary
Manuel Sanchez instructing him to vacate his office and he immediately complied with the
same.10 Notably, Mayor Miranda’s counter-affidavit also stated that he left the mayoralty post after
"coercion" by the Philippine National Police.11

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor
Miranda for violation of Article 177 of the RPC, penalizing usurpation of authority. On 20 November
1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct a reinvestigation of
the case in light of the manifestations made by prosecution and defense counsel. 12 After
reinvestigation, Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal
of the case in a Resolution dated 14 September 2000. 13 Coquia held that Miranda reassumed his
office in "good faith" and on "mistake of fact" due to the "difficult questions of law" involved. 14

Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia’s resolution to the
Ombudsman’s Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquia’s
findings and recommended the filing of the case against Mayor Miranda. 15 He pointed out that Mayor
Miranda’s invocation of good faith was belied by the fact that he received a memorandum from the
DILG informing him that his view of the preventive suspension period was untenable and that he
should serve out its remaining period. 16 He further noted that Miranda violated the orders of both the
Ombudsman and the DILG.17 Ombudsman Desierto adopted the Chief Legal Counsel’s
recommendation,18 and the case was re-raffled to Special Prosecution Officer Evelyn T.
Lucero. Subsequently, the prosecution filed an amended Information with the
Sandiganbayan,19 to which the petitioner interposed a negative plea. 20

On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to suspend
Mayor Miranda pendente lite based on Section 13 of Republic Act No. 3019 (R.A. No. 3019),
otherwise known as the Anti-Graft and Corrupt Practices Act.21 Miranda opposed the motion on
the ground that the offense of usurpation of authority or official functions under Article 177 of the
RPC is not embraced by Section 13 of R.A. No. 3019 which only contemplates offenses enumerated
under R.A. No. 3019, Title VII, Book II of the RPC or which involve "fraud upon government or public
funds or property."22

In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor

Miranda from office for 90 days.23 The anti-graft court held that a violation of Article 177 of the
RPC involves fraud "which in a general sense is deemed to comprise anything calculated to deceive,
including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or
confidence justly reposed, resulting in damage to another or by which an undue and unconscious
advantage is taken of another." 24 It further ruled that Miranda’s act fell within the catch-all provision "x
x x or for any offense involving fraud upon government." 25 Miranda’s motion for reconsideration was
denied in the Sandiganbayan’s Resolution dated 17 June 2002. 26 Hence, the present petition
assailing the Sandiganbayan’s orders of preventive suspension. The petitioner contends that
the Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground
 64

not authorized by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019
applies only to fraudulent acts involving public funds or property; and (2) whether the crime of
usurpation of authority or official functions involves "fraud upon government or public funds or
property" found in Section 13 of R.A. No. 3019.

We rule in the negative.

First. Section 13 of R.A. No. 3019, as amended, provides:

Section 13. Suspension and loss of benefits. — Any incumbent public officer against whom any
criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised
Penal Code or for any offense involving fraud upon government or public funds or property whether
as a simple or as a complex offense and in whatever stage of execution and mode of participation, is
pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless
in the meantime administrative proceedings have been filed against him.

In the event that such convicted officer, who may have already been separated from the service, has
already received such benefits he shall be liable to restitute the same to the Government.

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of
offenses: (1) any offense involving fraud on the government; and (2) any offense involving public
funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any
legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The
phrase "any offense involving fraud upon government or public funds or property" is clear and
categorical. To limit the use of "government" as an adjective that qualifies "funds" is baseless. The
word "public" precedes "funds" and distinguishes the same from private funds. To qualify further
"public funds" as "government" funds, as petitioner claims is the law’s intent, is plainly superfluous.
We are bound by the rule that a statute should be construed reasonably with reference to its
controlling purpose and its provisions should not be given a meaning that is inconsistent with its
scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act,
should be read to protect the State from fraud by its own officials.

Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled
that petitioner’s act fell within the catch-all provision "x x x or for any offense involving fraud upon
government. The term "fraud" is defined, viz.:

An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding 27

It is obvious to the eyes that the phrase "fraud upon government" means "any instance or act of
trickery or deceit against the government." It cannot be read restrictively so as to be equivalent to
malversation of funds as this is covered by the preceding phrase "any offense involving . . . public
funds or property." It ought to follow that "fraud upon government" was committed when the
petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor
under pretense of official position.

The dissent opines that fraud upon government is not necessarily an essential element of the crime
of usurpation of authority. The submission may be correct as a general proposition but general
propositions hardly decide a case. In the case at bar, the issue is whether the alleged acts of
usurpation of authority committed by the petitioner involve "fraud upon government or public funds or
 65

property" as the term is understood under Section 13 of R.A. No. 3019. In ruling in the affirmative,
the Sandiganbayan held:

Let us take a look at the acts complained of as alleged in the Amended Information dated July 27,
2001:

x x x the above-named accused, a public officer, being then the elected City Mayor of Santiago City,
while under preventive suspension did then and there, willfully, unlawfully and knowingly and under
pretense of official position, assume the duties and functions of the Office of the Mayor, issue
directives and memoranda, and appoint certain persons to various positions in the City Government
and perform acts pertaining to an office to which he knowingly was deprived of.

Moreover, in private complainant Amelita S. Navarro’s Affidavit of Complaint dated November 26,
1997, she said: "x x x, he proceeded to his office and started giving directives to the various heads of
office and other employees, the unexpected acts of respondents had caused serious disruptions in
the day to day affairs of the city government."

Accused’s acts therefore in assuming the duties and function of the Office of the Mayor despite his
suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in
the affairs of the government as the employees, as well as the public, suffered confusion as to who
is the head of the Office. This actuation of herein accused constitutes fraud which in general sense
is deemed to comprise anything calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty, trust or confidence justly reposed,
resulting in damage to another or by which an undue and unconscious advantage is taken of another
(37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the
catchall provision "x x x or for any offense involving fraud upon government x x x."

Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of
cases is that "x x x under Section 13 of the Anti-Graft and Corrupt Practices Law, the suspension of
a public officer is mandatory after a determination has been made of the validity of the Information x
x x." In fact, as early as 1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the
Honorable Supreme Court speaking thru Justice Relova said:

Once the information is found to be sufficient in form and substance, then the Court must issue the
order of suspension as a matter of course. There are no ifs and buts about it. x x x

After a perusal of the amended information herein, it clearly appeared that the same was apparently
valid for it conforms to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court.
In fact, accused herein interposed a negative plea thereto thereby tacitly acquiescing to the validity
of the said Information.

There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer
of the prosecution in its Motion to Suspend Accused Pende[n]te Lite (sic) and in consonance with
the imperious mandate of the law, the said prayer should be accorded affirmative relief. 28 (Citations
omitted)

In denying petitioner’s Motion for Reconsideration, the Sandiganbayan further held:

Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official
Function) of the Revised Penal Code, which is the charge against herein accused, does not fall
under the catchall provision of Section 13 of Republic Act No. 3019 "x x x or for any offense involving
 66

fraud upon government or public funds or property x x x." He said that the acts complained of as
alleged in the Information do not constitute fraud upon government or public fund or property.

Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling
suspending accused pendente lite. The accused argued that the fraud contemplated in the law is
one involving (1) government funds or property; and (2) public funds or property. This is precisely
availing in the case at bar. The Information in herein case, says: "x x x accused x x x assume the
duties and functions of the Office of the Mayor, issue directives and memoranda and appoint certain
persons to various positions in the city government, and perform acts pertaining to an office to which
he knowingly was deprived of." When accused-mayor appointed persons in various positions, he
indirectly dealt with the city’s funds as those persons appointed will be given their respective
salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the
city’s funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.
[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise
indirectly dealt with the funds of the city.

Moreover, as the prosecution said, "when accused Miranda, willfully and knowingly, during the
effectivity of his suspension barged into the City Hall, issued orders and directives and performed
functions as City Mayor, he was sending the unwritten yet visible message that he was authorized to
do and function as such. x x x." We hold this as a fraud upon government resulting in the chaos or
confusion albeit temporary, as the employees would be in a quandary whom to follow or obey.

Hence, considering that the charge herein evidently falls within the compass of the suspension
provision invoked by the prosecution, there is no cogent reason for this Court to depart from its
previous ruling. Further, considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the
motion for reconsideration is hereby denied.

Accordingly, the Motion for Reconsideration is denied for lack of merit. 29

This Court finds no reason to disagree with the Sandiganbayan. Its conclusions are amply
supported by the record. Additionally, the issue of whether petitioner committed fraud upon the
government or public funds or property is essentially factual. In a special civil action for certiorari, the
only question that may be raised is whether or not the respondent acted without or in excess of
jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do
not amount to grave abuse of discretion.30

The dissenting opinion, however, says there was no fraud. It holds that "it would be fraud of public
funds if these public officials just collected their salaries without rendering service to the
government." It further asserts that "fraud upon government" must be read so as to require that
malversation of funds was committed.31 This is a complete volte face from its claim that Section 13
of R.A. No. 3019 covers two types of offenses: (1) any offense involving fraud upon the
government; and (2) any offense involving public funds or property.32 What is more, adopting
the dissenting opinion’s line of reasoning would render superfluous the phrase "fraud upon
government" as malversation is subsumed by "any offense involving public funds or property."

Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under
an honest belief that he was no longer under preventive suspension. Petitioner’s pretense cannot
stand scrutiny. Petitioner’s own affidavit states:33

8. That on November 24, 1997, at that time, (sic) I had already served my single preventive
suspension for a total number of ONE HUNDRED TWENTY (120) days more or less counted from
July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive
 67

suspension, for a single suspension for a local elective official like me as provided for under the
Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon
the advise (sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume
my office as the duly elected City Mayor of Santiago City;

9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of
Santiago City; surprisingly on the same date, November 24, 1997 I received a memorandum issued
by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to
reassume the functions and duties of my office;

10. For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly
harassed and threatened me and my constituents with bodily harm using the strong arm of the law
thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was
constrained to ceased (sic) from performing my duties and functions to avoid any possible
unfortunate incident that may happen to me and any constituents; x x x.34 (Emphases supplied)

By petitioner’s own admission, he refused to leave his position despite the memorandum of

Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the
Philippine National Police. This contradicts his assertion that he immediately complied with the
memorandum of Undersecretary Sanchez.35Petitioner cannot escape from his own admission.

To be sure, petitioner’s honest belief defense is old hat. In the 1956 case of People v.
Hilvano,36 the facts are:

When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in
the morning of September 22, 1952, he designated the herein defendant Francisco Hilvano,
councilor, to discharge the duties of his office. Later, during office hours on that same day, Vice-
Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of
the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, that
he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano
refused to yield, arguing that he had been designated by the Mayor. Whereupon the Vice-Mayor
sent a telegram to the Executive Secretary informing the latter of the controversy. And the said
Secretary replied by letter, that under sec. 2195 of the Revised Administrative Code it was the Vice-
Mayor who should discharge the duties of the Mayor during the latter’s temporary absence. Shown
this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor
sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had
the right to the office. Notwithstanding such opinion which was exhibited to him – Hilvano declined to
vacate the post, which he held for about a month, appointing some policemen, solemnizing
marriages and collecting the corresponding salary for mayor.

Wherefore Francisco Hilvano was prosecuted – and after trial – was convicted of usurpation of
public authority under Republic Act No. 10. He appealed in due time.

In rejecting the defense of the accused Hilvano, we ruled: 37

There is no excuse for defendant-appellant. In the beginning he might have pleaded good faith,
invoking the designation by the Mayor; but after he had been shown the letter of the Executive
Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the
position. He was rightfully convicted.

Petitioner’s excuse for violating the order of preventive suspension is too flimsy to merit even a side-
glance. He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel
 68

had an iota of respect for the rule of law, they should have assailed the validity of the order of
suspension in court instead of taking the law into their own hands.

Fourth. It should be stressed that petitioner was suspended by the Sandiganbayan. Under

Section 13 of R.A. No. 3019, this suspension is mandatory if the information is sufficient.
Understandably, the dissent argues that the Amended Information is insufficient in form as it should
have "expressly and clearly stated that Miranda re-assumed office to defraud the government or that
in re-assuming office Miranda committed acts that defrauded the government" 38 and that it is
improper to take into account the petitioner’s admissions in his affidavit for this purpose.

With due respect, the dissent is way off-line. The records will show that petitioner did not file a
motion to quash the information or a motion for bill of particulars before pleading to the information. It
is basic that entering a plea waives any objection the petitioner may have to the validity of the
information except on the following grounds: (1) the information charges no offense; (2) the trial
court has no jurisdiction over the offense charged; (3) the penalty or the offense has been
extinguished; and (4) double jeopardy has attached. 39 Objections to the sufficiency of the allegations
in the Amended Information do not fall among the exceptions to the rule. They fall under the
objection that the information "does not conform substantially to the prescribed form." 40 Needless to
state, the petitioner has by his acts acquiesced to the validity and sufficiency of the Amended
Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that the
petitioner has been deprived of his constitutional right to be apprised of the nature and cause of the
accusation against him. Worse, it is improper for the dissenting opinion to raise this issue  motu
proprio. Under our Rules of Court, it is the petitioner who should raise this objection in a motion to
quash or motion for bill of particulars before entering his plea. 41 The irregular procedure followed
by the dissent would encourage the Pernicious [Malicious; evil] practice of "sandbagging" where
counsel foregoes raising a pleading defect before trial where it can be easily corrected only to raise
the defect later in the hope of obtaining an arrest of judgment [ withholding of judgment in a legal
action] or new trial from a sympathetic magistrate .42 It is precisely this evil that is addressed by Rule
117, Section 9 of our Revised Rules of Criminal Procedure.

Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a
timely fashion by the petitioner, the dissenting opinion’s arguments still do not convince. The validity
or sufficiency of allegations in an information is determined according to the provisions of Section 9
of the Revised Rules of Criminal Procedure, viz:

SECTION 9. Cause of the Accusation. — The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is being charged as well as its qualifying
and aggravating circumstances and for the court to pronounce judgment. 43

The test is whether the crime is described in intelligible terms with such particularity as to apprise the
accused, with reasonable certainty, of the offense charged. The raison d’etre of the rule is to enable
the accused to suitably prepare his defense.44 A perusal of the Amended Information will bear out
that it has hurdled this legal bar. We quote its contents:

That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the
elected City Mayor of Santiago City, while under preventive suspension, did, then and there, willfully,
unlawfully, and knowingly and under pretense of official position, assume the duties and function of
the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various
 69

positions in the city government, and perform acts pertaining to an office to which he knowingly was
deprived of.45

Using this test, it cannot be said that the Amended Information failed to properly apprise the
petitioner of the charge against him. The information charged the petitioner with assuming the duties
and performing acts pertaining to the office of Mayor willfully, unlawfully and knowingly under the
pretense of official position. Moreover, it states some of the specific acts which constitute usurpation
of official functions, namely, issuing directives and memoranda and appointing certain persons to
various positions in the city government. These allegations are clear enough for a layman to
understand. Indeed, even the petitioner does not complain about their ambiguity. Only the dissent
does.

Fifth. The dissenting opinion also contends that the Ombudsman’s authority to preventively

suspend local elective officials for 6 months is limited by Section 63(b) of the Local Government
Code. Under the latter law, petitioner can only be suspended for a maximum period of 60 days. It
then jumps to the conclusion that petitioner could not have usurped authority because he reassumed
office after 60 days.46

With due respect, the dissent fails to focus on the proper issue. The issue before this Court is
whether the Sandiganbayan committed a grave abuse of discretion in suspending the petitioner for
90 days. The validity of the Ombudsman’s order of preventive suspension of the petitioner for 6
months is not the one assailed in the case at bar. The irrelevance of the suspension order of the
Ombudsman notwithstanding, the reliance of the dissenting opinion on Garcia v.
Mojica is inapropos. In Garcia, we held:

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the
imposition of preventive suspension against petitioner. But considering its purpose and the
circumstances in the case brought before us, it does appear to us that the imposition of the
maximum period of six months is unwarranted.

On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that
the documents mentioned in respondents' comment (such as purchase orders, purchase requests,
and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner
had been suspended. Even if an afterthought, he claimed they strengthen the evidence of
respondents against petitioner. If the purpose of the preventive suspension was to enable the
investigating authority to gather documents without intervention from petitioner, then, from
respondents' submission, we can only conclude that this purpose was already achieved,
during the nearly month-long suspension of petitioner from June 25 to July 19, 1999.
Granting that now the evidence against petitioner is already strong, even without conceding
that initially it was weak, it is clear to us that the maximum six-month period is excessive and
definitely longer than necessary for the Ombudsman to make its legitimate case against
petitioner. We must conclude that the period during which petitioner was already preventively
suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and
destroying needed documents, or harassing and preventing witnesses who wish to appear against
him.

We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's

claim that the Local Government Code, which he averred should apply to this case of an
elective local official, has been violated. True, under said Code, preventive suspension may only
be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner
was suspended without having had the chance to refute first the charges against him, and for the
maximum period of six months provided by the Ombudsman Law. But as respondents argue,
 70

administrative complaints commenced under the Ombudsman Law are distinct from those
initiated under the Local Government Code. Respondents point out that the shorter period of
suspension under the Local Government Code is intended to limit the period of suspension that may
be imposed by a mayor, a governor, or the President, who may be motivated by partisan political
considerations. In contrast the Ombudsman, who can impose a longer period of preventive
suspension, is not likely to be similarly motivated because it is a constitutional body. The
distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion
in a specific case of preventive suspension. 47 (Emphases supplied)

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the
Ombudsman. In fact, the Court expressly stated that its decision was rendered without subscribing
to the petitioner’s claim that the Local Government Code had been violated. In fine, the Court only
ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive
suspension since it was admitted that the documents required were already obtained by 19 July
1999 or 24 days after the imposition of the preventive suspension. Therefore, the purpose for which
the suspension was imposed was already served.

The dissenting opinion also cites the case of Rios v. Sandiganbayan48 as basis for assailing the
Ombudsman’s order of preventive suspension. Rios is neither here nor there since the powers of
the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also worth noting
that Rios cited Section 63 of the Local Government Code as its legal basis. This provision provides:

SECTION 63. Preventive Suspension. -

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an
independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(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.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings against him, which shall
be terminated within one hundred twenty (120) days from the time he was formally notified of the
case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or
request, other than the appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.

It is plain that the provision was only meant as a cap on the discretionary power of the President,
governor and mayor to impose excessively long preventive suspensions. The Ombudsman is not
 71

mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is
not hard to distill. The President, governor and mayor are political personages. As such, the
possibility of extraneous factors influencing their decision to impose preventive suspensions is not
remote. The Ombudsman, on the other hand, is not subject to political pressure given the
independence of the office which is protected by no less than the Constitution. This view was
embraced by the Court in Hagad v. Gozo-Dadole49 and Garcia v. Mojica.50 In Hagad, we held:

Respondent local officials contend that the 6-month preventive suspension without pay
under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive
suspension provided by Section 63 of the Local Government Code to even now maintain its
application. The two provisions govern differently. In order to justify the preventive suspension
of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a)
the charge against the officer or employee should involve dishonestly, oppression or grave
misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from
the service; or (c) the respondent's continued stay in office would prejudice the case filed against
him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether
elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter
period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991
on an elective local official (at any time after the issues are joined), it would be enough that (a) there
is reasonable ground to believe that the respondent has committed the act or acts complained of, (b)
the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance
in office of the respondent could influence the witnesses or pose a threat to the safety and integrity
of the records and other evidence.51

In the same vein, we made the following observations in Garcia, viz.:

Respondents may be correct in pointing out the reason for the shorter period of preventive
suspension imposable under the Local Government Code. Political color could taint the exercise of
the power to suspend local officials by the mayor, governor, or President's office. In contrast the
Ombudsman, considering the constitutional origin of his Office, always ought to be insulated
from the vagaries of politics, as respondents would have us believe. x x x

It was also argued in Hagad, that the six-month preventive suspension under the
Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under
the Local Government Code. But per J. Vitug, "the two provisions govern
differently." 52 (Emphases supplied)

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It
bears emphasis that Senator Pimentel 53 explained during the Senate deliberations that the purpose
of Section 63 of the Code is to prevent the abuse of the power of preventive suspension by
members of the executive branch, to wit:

The President.54 I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the
President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him - -

Senator Pimentel. That is true, Mr. President.

The President. - - contending that under the new Constitution, even the President does not have
that right.

Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a
more stringent rule regarding the power of removal and suspension by the Office of the
 72

President over local government officials, Mr. President. We would only wish to point out that in a
subsequent section, we have provided for the power of suspension of local government officials to
be limited only to 60 days and not more than 90 days in any one year, regardless of the number of
administrative charges that may be filed against a local government official. We, in fact, had in
mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of
serialized the filing of charges against him so that he can be continuously suspended when
one case is filed right after the other, Mr. President.

The President. Can that be done under this new Code?

Senator Pimentel. Under our proposal, that can no longer be done, Mr. President. 55

Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed
by the Ombudsman, which is a constitutionally created office and independent from the Executive
branch of government.56The Ombudsman’s power of preventive suspension is governed by Republic
Act No. 6770,57 otherwise known as "The Ombudsman Act of 1989," which provides:

SECTION 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend
any officer or employee under his authority pending an investigation, if in his judgment the evidence
of guilt is strong, and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's continued stay in office may prejudice the case
filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the disposition
of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided.58 (Emphasis supplied)

The six-month period of preventive suspension imposed by the Ombudsman 59 was indubitably within
the limit provided by its enabling law. This enabling law has not been modified by the legislature.

The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping
the limit for executive officials at sixty days violates the constitutional proscription against equal
protection of the law. In essence, it avers that there is no substantial distinction between preventive
suspensions handed down by the Ombudsman and those imposed by executive officials. On the
contrary, there is a world of difference between them. The Constitution has endowed the
Ombudsman with unique safeguards to ensure immunity from political pressure. Among these
statutory protections are fiscal autonomy,60 fixed term of office61 and classification as an impeachable
officer.62 This much was recognized by this Court in the earlier cited case of Garcia v.
Mojica.63 Moreover, there are stricter safeguards for imposition of preventive suspension by the
Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the
evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the
charge against such officer or employee involves dishonesty, oppression, or grave misconduct or
neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him. 64

The dissenting opinion finally points out the possibility of abuse by the Ombudsman in imposing
preventive suspensions. The short reply is that all powers are susceptible of abuse but that is no
reason to strike down the grant of power. Suffice it to say that the proper remedies against abuse in
the exercise of power are a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure
 73

or amendment of the Ombudsman’s enabling law by the legislature, not a contortionist statutory

interpretation by this Court.

IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing that the
Sandiganbayan gravely abused its discretion in issuing its Resolution of 4 February 2002,
preventively suspending the petitioner for 90 days.

SO ORDERED.

SECOND DIVISION

G.R. No. 139043 September 10, 1999

MAYOR ALVIN B. GARCIA, petitioner, 

vs.
HON. ARTURO C. MOJICA, in his capacity as Deputy Ombudsman for the Visayas, VIRGINIA
PALANCA-SANTIAGO, in his capacity as Director, Office of the Ombudsman (Visayas), ALAN
FRANCISCO S. GARCIANO, in his capacity as Graft Investigation Officer I, Office of the
Ombudsman (Visayas), and JESUS RODRIGO T. TAGAAN, respondents.

QUISUMBING, J.:

The present controversy involves the preventive suspension order issued June 25, 1999, by the
Office of the Ombudsman (Visayas) in OMB-VIS-ADM-99-0452, against petitioner Cebu City Mayor
Alvin B. Garcia and eight other city officials. Under the said order, petitioner was placed under
preventive suspension without pay for the maximum period of six months and told to cease and
desist from holding office immediately.

The factual antecedents are as follows:

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 period was to
commence on September 1998 when the first delivery should have been made by F.E. Zuellig.

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. 1

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 his 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.
 74

In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft
investigating officer to whom the case was raffled for investigation, recommended the preventive
suspension of petitioner and the others. Two days later, or on June 24, 1999, the affidavit-complaint
against petitioner was filed. The following day, on June 25, 1999, the Office of the Ombudsman
issued the questioned preventive suspension order. On June 29, 1999, petitioner filed a motion for
reconsideration of said order, which motion was denied in an order dated July 5, 1999.

Petitioner is now before this Court assailing the validity of the said order. He pleads for immediate
relief through the present petition for certiorari and prohibition with a prayer for temporary restraining
order and/or writ of preliminary injunction. Petitioner contends that:

THE RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION,

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ASSUMING
JURISDICTION OVER OMB-VIS-ADM-99-0452 AND ISSUING THE PREVENTIVE
SUSPENSION ORDER, THE OFFICE OF THE OMBUDSMAN BEING WITHOUT
JURISDICTION OVER THE ADMINISTRATIVE CASE, CONSIDERING THAT THE
ALLEGED ACT CONSTITUTING THE CHARGE AGAINST PETITIONER HEREIN
WAS COMMITTED DURING HIS PREVIOUS TERM, AND PETITIONER HAVING
BEEN REELECTED TO THE SAME POSITION.

II

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS

JURISDICTION OVER OMB-VIS-ADM-99-0452, THE PREVENTIVE SUSPENSION
FOR SIX MONTHS WAS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF THE
PROVISIONS OF SECTION 63 OF THE LOCAL GOVERNMENT CODE WHICH
MANDATES THAT THE PREVENTIVE SUSPENSION OF LOCAL ELECTIVE
OFFICIALS BE ORDERED ONLY AFTER THE ISSUES HAVE BEEN JOINED, AND
ONLY FOR A PERIOD NOT IN EXCESS OF SIXTY (60) DAYS.

III

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS

JURISDICTION OVER OMB-VIS-ADM-99-0452, THE PREVENTIVE SUSPENSION
WAS ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF SECTION 26(2) OF
THE OMBUDSMAN LAW.

IV

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS

JURISDICTION, THE RESPONDENTS COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
CONCLUDING THAT THE EVIDENCE AGAINST PETITIONER WAS "STRONG",
THE LITTLE EVIDENCE ON RECORD CONSISTING SOLELY OF A HEARSAY
AFFIDAVIT, AND INADMISSIBLE NEWSPAPER REPORTS.
 75

On July 19, 1999, we directed the parties to maintain the status quo until further orders from this
Court. It appears that on the same day, petitioner issued a memorandum informing employees and
officials of the Office of the City Mayor that he was assuming the post of mayor effective
immediately. On July 23, 1999, respondents filed a motion seeking clarification of our status
quo order. Respondents claimed that the status quo referred to in the order should be that where
petitioner is already and vice mayor Renato Osmeña is the acting city mayor.

Petitioner, in reply, argued that the status quo refers to "the last actual peaceable uncontested
status which preceded the pending controversy." 2 Thus, status quo could not be that where petitioner
is preventively suspended since the suspension did not precede the present controversy; it is the
controversy.

We agree with petitioner in this regard. As explained by Justice Florenz D. Regalado, an authority on
remedial law:

There have been instances when the Supreme Court has issued a status quo order
which, as the very term connotes, is merely intended to maintain the last, actual,
peaceable and uncontested state of things which preceded the controversy. This was
resorted to when the projected proceedings in the case made the conservation of
the status quo desirable or essential, but the affected party neither sought such relief
or the allegations in his pleading did not sufficiently make out a case for a temporary
restraining order. The status quo order was thus issued motu proprio on equitable
considerations. Also, unlike a temporary restraining order or a preliminary injunction,
a status quo order is more in the nature of a cease and desist order, since it neither
directs the doing or undoing of acts as in the case of prohibitory or mandatory
injunctive relief. The further distinction is provided by the present amendment in the
sense that, unlike the amended rule on restraining orders, a status quo order does
not require the posting of a bond. 3

On July 28, 1999, we heard the parties' oral arguments on the following issues:

1. What is the effect of the reelection of petitioner on the investigation of acts done
before his reelection? Did the Ombudsman for Visayas gravely abuse his discretion
in conducting the investigation of petitioner and ordering his preventive suspension?

2. Assuming that the Ombudsman properly took cognizance of the case, what law
should apply to the investigation being conducted by him, the Local Government
Code (R.A. 7160) or the Ombudsman Law (R.A. 6770)? Was the procedure in the
law properly observed?

3. Assuming further that the Ombudsman has jurisdiction, is the preventive

suspension of petitioner based on "strong evidence" as required by law?

We will now address these issues together, for the proper resolution on the merits of the present
controversy.

Petitioner contends that, per our ruling in Aguinaldo v. Santos, 4 his reelection has rendered the
administrative case filed against him moot and academic. This is because reelection operates as a
condonation by the electorate of the misconduct committed by an elective official during his previous
term. Petitioner further cites the ruling of this Court in Pascual v. Hon.Provincial Board of Nueva
Ecija,  that
5
 76

. . . When the people have elected a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. It is not for the court, by reason of
such faults or misconduct to practically overrule the will of the people.

Respondents, on the other hand, contend that while the contract in question was signed during the
previous term of petitioner, it was to commence or be effective only on September 1998 or during his
current term. It is the respondents' submission that petitioner "went beyond the protective
confines"  of jurisprudence when he "agreed to extend his act to his current term of
6

office." 7 Aguinaldo cannot apply, according to respondents, because what is involved in this case is a
misconduct committed during a previous term but to be effective during the current term.

Respondents maintain that,

. . . petitioner performed two acts with respect to the contract: he provided for a
suspensive period making the supply contract commence or be effective during his
succeeding or current term and during his current term of office he acceded to the
suspensive period making the contract effective during his current term by causing
the implementation of the contract. 8

Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.

Further, respondents point out that the contract in question was signed just four days before the date
of the 1998 election and so it could not be presumed that when the people of Cebu City voted
petitioner to office, they did so with full knowledge of petitioner's character.1âwphi1.nêt

On this point, petitioner responds that knowledge of an official's previous acts is presumed and the
court need not inquire whether, in reelecting him, the electorate was actually aware of his prior
misdeeds.

Petitioner cites our ruling in Salalima v. Guingona,  wherein we absolved Albay governor Romeo R.
9

Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law
firm during his previous term, although disbursements of public funds to cover payments under the
agreement were still being done during his subsequent term. Petitioner argues that,
following Salalima, the doctrine in Aguinaldo applies even where the effects of the act complained of
are still evident during the subsequent term of the reelected official. The implementation of the
contract is a mere incident of its execution. Besides, according to petitioner, the "sole act" for which
he has been administratively charged is the signing of the contract with F.E. Zuellig. The charge, in
his view, excludes the contract's execution or implementation, or any act subsequent to the
perfection of the contract.

In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case
because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already
pending when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima,
the Court applied the Aguinaldo doctrine, even if the administrative case against Governor Salalima
was filed after his reelection.

Worth stressing, to resolve the present controversy, we must recall that the authority of the
Ombudsman to conduct administrative investigations is mandated by no less than the Constitution.
Under Article XI, Section 13[1], the Ombudsman has the power to:
 77

investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act omission appears to be
illegal, unjust, improper, or inefficient.

R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to
conduct administrative investigations. Thus, Section 19 of said law provides:

Sec. 19. Administrative Complaints. — The Ombudsman shall act on all complaints
relating, but not limited to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency's functions,

though in accordance with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of

facts;

(5) Are in the exercise of discretionary powers but for an improper

purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Sec. 21 of R.A. 6770 names the officials subject to the Ombudsman's disciplinary authority:

Sec. 21. Officials Subject To Disciplinary Authority; Exceptions. — The Office of the

Ombudsman shall have disciplinary authority over all elective and appointive officials
of the Government and its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned or controlled
corporations and their subsidiaries, except over officials who may be removed only
by impeachment or over Members of Congress, and the Judiciary. (Emphasis
supplied.)

Petitioner is an elective local official accused of grave misconduct and dishonesty. 10 That the Office
of the Ombudsman may conduct an administrative investigation into the acts complained of, appears
clear from the foregoing provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an investigation over a
particular act or omission, is different from the question of whether or not petitioner, after
investigation, may be held administratively liable. This distinction ought here to be kept in mind, even
as we must also take note that the power to investigation is distinct from the power to suspend
preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an
official subject to its administrative investigation is provided by specific provision of law. Under
Section 24 of R.A. 6770 —

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in
 78

his judgment the evidence of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of
the Ombudsman but not more than six months, without pay, except when the delay
in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided. (Emphasis
supplied.)

We have previously interpreted the phrase "under his authority" to mean that the Ombudsman can
preventively suspend all officials under investigation by his office, regardless of the branch of
government in which they are employed,  excepting of course those removable by impeachment,
11

members of Congress and the Judiciary.

The power to preventively suspend is available not only to the Ombudsman but also to the Deputy
Ombudsman. This is the clear import of Section 24 or R.A. 6770 abovecited.

There can be no question in this case as to the power and authority of respondent Deputy
Ombudsman to issue an order of preventive suspension against an official like the petitioner, to
prevent that official from using his office to intimidate or influence witnesses 12 or to tamper with
records that might be vital to the prosecution of the case against him. 13 In our view, the present
controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and
the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion
when he set the period of preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among other
factors, the evidence of guilt is strong. The period for which an official may be preventively
suspended must not exceed six months. In this case, petitioner was preventively suspended and
ordered to cease and desist from holding office for the entire period of six months, which is the
maximum provided by law.

Sec. 24. Preventive Suspension. —

xxx xxx xxx

The preventive suspension shall continue until the case is terminated by the Office of
the Ombudsman but not more than six months, without pay, except when the delay
in the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided. (Emphasis
supplied.)

The determination of whether or not the evidence of guilt is strong as to warrant preventive
suspension rests with the Ombudsman. 14 The discretion as regards the period of such suspension also
necessarily belongs to the Ombudsman, except that he cannot extend the period of suspension beyond
that provided by law. 15 But, in our view, both the strength of the evidence to warrant said suspension and
the propriety of the length or period of suspension imposed on petitioner are properly raised in this
petition for certiorari and prohibition. These equitable remedies under Rule 65 of the Rules of Court
precisely exist to provide prompt relief where an "officer exercising judicial or quasi-judicial functions has
 79

acted . . . with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of law." (See Rule 65, Sec. 1).

It is pertinent to note here that the inquiry that preceded the filing of an administrative case against
petitioner was prompted by newspaper reports regarding the allegedly anomalous contract entered
into by petitioner, on behalf of Cebu City, with F.E. Zuellig. 16 In the memorandum to respondent
Mojica, 17 respondent Garciano recommended that petitioner be preventively suspended, based on an
initial investigation purportedly showing: (1) the contract for supply of asphalt to Cebu City was designed
to favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive compared to the amount for
which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that
the amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risks
attendant to a fluctuating exchange rate, and (3) the interest of the city under the contract is not protected
by adequate security. These findings were based on the contract itself and on letters from Bitumex and
Credit Lyonnais. There were also letters from Shell and Petron that were replies to the Office of the
Ombudsman's (Visayas) inquiry on whether or not they could supply Cebu City with asphalt and on what
terms.

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the
imposition of preventive suspension against petitioner. But considering its purpose and the
circumstances in the case brought before us, it does appear to us that the imposition of the
maximum period of six months is unwarranted.

On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that
the documents mentioned in respondents' comment (such as purchase orders, purchase requests,
and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner
had been suspended. Even if an afterthought, he claimed they strengthen the evidence of
respondents against petitioner. If the purpose of the preventive suspension was to enable the
investigating authority to gather documents without intervention from petitioner, then, from
respondents' submission, we can only conclude that this purpose was already achieved, during the
nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the
evidence against petitioner is already strong, even without conceding that initially it was weak, it is
clear to us that the maximum six-month period is excessive and definitely longer than necessary for
the Ombudsman to make its legitimate case against petitioner. We must conclude that the period
during which petitioner was already preventively suspended, has been sufficient for the lawful
purpose of preventing petitioner from hiding and destroying needed documents, or harassing and
preventing witnesses who wish to appear against him.

We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim
that the Local Government Code, which he averred should apply to this case of an elective local
official, has been violated. True, under said Code, preventive suspension may only be imposed after
the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended
without having had the chance to refute first the charges against him, and for the maximum period of
six months provided by the Ombudsman Law. But as respondents argue, administrative complaints
commenced under the Ombudsman Law are distinct from those initiated under the Local
Government Code. Respondents point out that the shorter period of suspension under the Local
Government Code is intended to limit the period of suspension that may be imposed by a mayor, a
governor, or the President, who may be motivated by partisan political considerations. In contrast the
Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly
motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a specific case of preventive suspension.

Respondents base their argument on the deliberations of the Senate on Senate Bill No. 155, which
became the Local Government Code. Senator Aquilino Pimentel, Jr., commenting on the
 80

preservation in the proposed Code of the power of the Office of the President to suspend local
officials, said:

Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready
to adopt a more stringent rule regarding the power of removal and suspension by the
Office of the President over local government officials, Mr. President. We would only
wish to point out that in a subsequent section, we have provided for the power of
suspension of local government officials to be limited only to 60 days and not more
than 90 days in any one year, regardless of the number of administrative charges
that may be filed against a local government official. We, in fact, had in mind the
case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of
serialized the filing of charges against him so that he can be continuously suspended
when one case is filed right after the other, Mr. President. 18

Respondents may be correct in pointing out the reason for the shorter period of preventive
suspension imposable under the Local Government Code. Political color could taint the exercise of
the power to suspend local officials by the mayor, governor, or President's office. In contrast the
Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from
the vagaries of politics, as respondents would have us believe.

In Hagad v. Gozo-Dagole, 19 on the matter of whether or not the Ombudsman has been stripped of his
power to investigate local elective officials by virtue of the Local Government Code, we said:

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. 20

It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law
is "much too repugnant" to the 60-day period that may be imposed under the Local Government
Code. But per J. Vitug, "the two provisions govern differently. 21

However, petitioner now contends that Hagad did not settle the question of whether a local elective official
may be preventively suspended even before the issues could be joined. Indeed it did not, but we have
held in other cases that there could be preventive suspension even before the charges against the official
are heard, or before the official is given an opportunity to prove his innocence. 22 Preventive suspension is
merely a preliminary step in an administrative investigation and is not in any way the final determination of
the guilt of the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section 26(2)
of the Ombudsman Law, which provides:

Sec. 26. Inquiries. — . . .

(2) The Office of the Ombudsman shall receive complaints from any source in
whatever form concerning an official act or omission. It shall act on the complaint
immediately and if it finds the same entirely baseless, it shall dismiss the same and
inform the complainant of such dismissal citing the reasons therefor. If it finds a
reasonable ground to investigate further, it shall first furnish the respondent public
officer or employee with a summary of the complaint and require him to submit a
written answer within seventy-two hours from receipt thereof. . .
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Petitioner argues that before an inquiry may be converted into a full-blown administrative
investigation, the official concerned must be given 72 hours to answer the charges against him. In
his case, petitioner says the inquiry was converted into an administrative investigation without him
being given the required number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer
to the complaint against him. This, however, does not make invalid the preventive suspension order
issued against him. As we have earlier stated, a preventive suspension order may be issued even
before the charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the
complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5(a) of
the Rules of Procedure of the Office of the Ombudsman,  which provides:
23

Sec. 5. Administrative adjudication. How conducted. —

(a) If the complaint is not dismissed for any of the causes enumerated in Section 20
of Republic Act No. 6770, the respondent shall be furnished with copy of the
affidavits and other evidences submitted by the complainant, and shall be ordered to
file his counter-affidavits and other evidences in support of his defense, within ten
(10) days from receipt from, together with proof of service of the same on the
complainant who may file reply affidavits within ten (10) days from receipt of the
counter-affidavits of the respondent.

We now come to the concluding inquiry. Granting that the Office of the Ombudsman may
investigate, for purposes provided for by law, the acts of petitioner committed prior to his present
term of office; and that it may preventively suspend him for a reasonable period, can that office hold
him administratively liable for said acts?

In a number of cases, we have repeatedly held that a reelected local official may not be held
administratively accountable for misconduct committed during his prior term of office. 24 The rationale
for this holding 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 reelection 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 four 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.

For his part, petitioner that "the only conclusive determining factor" 25 as regards the people's thinking
on the matter is an election. On this point, we agree with petitioner. 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 will obviously be impossible. Our 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.

As held in Salalima.

The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are

concerned, is still a good law. Such a rule is not only founded on the theory that an
official's reelection expresses the sovereign will of the electorate to forgive or
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condone any act or omission constituting a ground for administrative discipline which
was committed during his previous term. We may add 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
hound the former during his new term with administrative cases for acts alleged to
have been committed during his previous term. His second term may thus be
devoted to defending himself in the said cases to the detriment of public service. . . .
Emphasis added. 26

The above ruling in Salalima applies to this case. Petitioner cannot anymore be

held administratively liable for an act done during his previous term, that is, his signing of the
contract with F.E. Zuellig.

The assailed retainer agreement in Salalima was executed sometime in 1990.

Governor Salalima was reelected in 1992 and payments for the retainer continued to be made
during his succeeding term. This situation is no different from the one in the present case, wherein
deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor were
supposed to have commenced on September 1998, during petitioner's second term.

However, respondents argue that the contract, although signed on May 7, 1998, during petitioner's
prior term, is to be made effective only during his present term.

We fail to see any difference to justify a valid distinction in the result. The agreement between
petitioner (representing Cebu City) 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 extent 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, however, this should not prejudice the filing of any case other than administrative against
petitioner. Our ruling, in this case, may not be taken to mean the total exoneration of petitioner for
whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling
now is limited to the question of whether or not he may be held administratively liable therefor, and it
is our considered view that he may not.

WHEREFORE, the petition is hereby DENIED insofar as it seeks to declare at respondents

committed grave abuse of discretion in conducting an inquiry on complaints against petitioner, and
ordering their investigation pursuant to respondents' mandate under the Constitution and the
Ombudsman Law. But the petition is hereby GRANTED insofar as it seeks to declare that
respondents committed grave abuse of discretion concerning the period of preventive suspension
imposed on petitioner, which is the maximum of six months, it appearing that 24 days — the number
of days from the date petitioner was suspended on June 25, 1999, to the date of our status
quo order on July 19, 1999 — were sufficient for the purpose. Accordingly, petitioner's preventive
suspension, embodied in the order of respondent Deputy Ombudsman, dated June 25, 1999, should
now be, as it is hereby, LIFTED immediately. 1âwphi1.nêt

SO ORDERED.
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