DILG OPINION NO.

056-97

Hon. PEDRO B. ELAGO, JR.

Office of the Sangguniang Panlalawigan
Provincial Capitol Building
Mambajao, Camiguin

Sir:

This refers to your January 20, 1997 letter, requesting for legal opinion on
whether or not the power of the Governor to impose preventive suspension is
ministerial or discretionary, in the light of the recommendation of the Sangguniang
Panlalawigan to impose the same.

At the onset, it would not be amiss to discuss the essence and purpose of a
preventive suspension. In Nera vs. Garcia (106 Phil. 1031), the Supreme Court held
that a preventive suspension is a preliminary step in an administrative investigation. It
may be ordered even before the charges are heard as well as before the official
concerned is given an opportunity to prove his innocence, being merely a measure
that is precisely designed to prevent the accused from hampering the normal course of
the investigation with his influence and authority over possible witnesses or to keep
him off the records and other evidence and to assist prosecutors in firming up a case,
if any, against an erring local official (Lacson vs. Roque, 92 Phil 456; Ganzon vs.
Court of Appeals, 200 SCRA 271). In an analogous case, the Court has even held that
a preventive suspension may be imposed after compliance with the requisites therein
set forth, as an aid in the investigation of administrative charges (Buenaseda vs.
Flavier, 226 SCRA 645 at 652, September 21, 1993). cdtai

As regards administrative disciplinary action against local elective officials,

Sections 61 and 63 of the Local Government Code of 1991 (RA 7160) respectively
provide, in so far as pertinent, that:

"Sec. 61. Form and Filing of Administrative Complaints. — A

verified complaint against any erring local elective official shall be prepared as
follows:

xxx xxx xxx

(b) A complaint against any elective official of the municipality shall

be filed before the sangguniang panlalawigan whose decision may be appealed
to the Office of the President; . . ."
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 "Sec. 63. Preventive Suspension. — (a) Preventive suspension may
be imposed:

xxx xxx xxx

(2) By the governor, if the respondent is an elective official of a

component city of municipality;

xxx xxx xxx

(b) Preventive suspension may be imposed at any time after the issues
are joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence. . . ."

As aforequoted, a verified complaint against any erring municipal elective

official shall be filed before the sangguniang panlalawigan. After the issues are joined
and 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,
preventive suspension may then be imposed by the Governor. Since a complaint
against an erring municipal elective official is to be filed before the sangguniang
panlalawigan, it follows that the provincial board has the power to investigate, hear
and decide cases brought before it for adjudication. The power to investigate, on the
other hand, involves the reception of evidence, ascertaining therefrom the facts of a
controversy and making factual conclusions in such controversies, accompanied by
the authority of applying the law to those factual conclusions to the end that the
controversy may be decided or determined authoritatively, finally and definitively,
subject to such appeals or modes of review as may be provided by law (Cariño vs.
Commission on Human Rights, 204 SCRA 483).

It may thus be inferred therefrom that preventive suspension is an incident to

jurisdiction and/or a tool for the disciplining authority to make use of in the course of
its administrative investigation. It is in this context that we have to distinguish
between "determination" and "imposition", the latter being the function of the
Governor while the former is the concern of the sanggunian. This being so, we
believe that the disciplining and investigating authority over erring municipal elective
officials is the Sangguniang Panlalawigan and it, therefore, has the sole power and
discretion to determine whether or not preventive suspension so warrants.

It has to be noted that in Buenaseda vs. Flavier, the Supreme Court cited the
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 earlier ruling in Nera where the import of the decision therein is that where strong
evidence of guilt is a requisite in preventive suspension, the disciplining authority is
given the discretion to decide when the evidence of guilt is strong. There may exist
honest differences of opinion with regard to the seriousness of the charges or as to
whether they warrant disciplinary action. However, as a general rule, the office or
body that is invested with the power of removal or suspension should be the sole
judge of the necessity and sufficiency of the cause (Melgar vs. Espiritu, 206 SCRA
256).

It may be further observed that by the opening phrase of Section 63 of the

Code, i.e., "preventive suspension may be imposed", the word "MAY" was used
which, generally in statutory construction, may be taken to mean as permissive and
not mandatory. This rule is not, however, absolute. In our jurisdiction, the basic canon
of statutory interpretation is that where the statute provides for the doing of some act
which is required by justice or public duty, or where it invests a public body,
municipality or public officer with power and authority to take some action which
concerns the public interest or rights of individuals, the permissive language will be
construed as mandatory and the execution of the power may be insisted upon as a
duty (De Mesa vs. Mencias, 18 SCRA 542). The question in each case is whether,
taken as a whole and viewed in the light of surrounding circumstances, it can be said
that a purpose existed on the part of the legislator to enact a law mandatory in
character. If it can, then it should be given a mandatory effect; if not, then it should be
given its ordinary permissive effect (In re: Guarina, 24 Phil 41).

Accordingly, it would be at the height of absurdity for the Sangguniang

Panlalawigan having acquired jurisdiction to receive and investigate administrative
complaints against municipal elective officials and thereafter, abdicate itself of the
power to impose preventive suspension in favor of the Governor who may or may not
concur with the preliminary results of the investigation, according to his whims and
caprices and despite the sanggunian's initial findings of the existence of all the
elements which warrant the imposition thereof. Such practice would thus render
nugatory the law vesting jurisdiction upon the Sangguniang Panlalawigan the power
to investigate, hear and decide administrative complaints. It would be inconsistent
with the essence of jurisdiction which is the authority to hear and decide a case. Well
settled is the rule that statutes are to be construed in the light of the purposes to be
achieved and the evils sought to be remedied. We, therefore, have to consider the
spirit and reason of the statute where a literal meaning would lead to absurdity,
contradiction, injustice, or would defeat the clear purpose of the lawmakers. There
further exists a valid presumption that undesirable consequences were never intended
by a legislative measure and that a construction of which the statute is fairly

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 susceptible is favored to avoid all objectionable, mischievous, indefensible, wrongful,
evil and injurious consequences (Ursua vs. Court of Appeals, 255 SCRA 147, April
10, 1996).

In fine, as to whether or not the power to impose preventive suspension is a

ministerial or discretionary function, we are of the considered view that the authority
of the local chief executives (Governor/Mayor) to impose preventive suspension is
purely ministerial since the disciplinary authority over erring municipal or barangay
elective officials is the Sangguniang Panlalawigan, Sangguniang Panlungsod or
Sangguniang Bayan, as the case may be. Hence, after the sanggunian shall have
determined the necessity to warrant the imposition of preventive suspension, the same
only need to be implemented by the local chief executive concerned. dctai

This Opinion supersedes all other existing opinions of this Department which
are or may appear to be inconsistent herewith.

Hoping that we have clarified the matter.

Very truly yours,

MANUEL R. SANCHEZ
Acting Secretary

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