April 23, 1997

DILG OPINION NO. 062-97

MR. CLARO USON

Regional Legal Officer
DILG Regional Office No. 02
Tuguegarao, Cagayan

Dear Mr. Uson :

This has reference to your fax communication dated 18 March 1997,

requesting for legal opinion on matters raised thereto setforth, viz: Cdpr

"Whether or not said mayor could still be the subject of a suspension

and/or investigation — continuation only of earlier investigation conducted by
the Committee on Investigation and Complaints and Human Rights — despite
provisions of paragraph c of Sec. 62 of R.A. 7160 also known as the Local
Government Code vis-a-vis number 5 of the prohibited acts set forth in Comelec
Resolution 2887.

In other words, while the Local Code provides for a period of 90 days
prior to any local election, the Comelec Resolution provides or prescribes 45
days or specifically 30 days only before election, a glaring inconsistency
therefore exists, which pose the question of which prevails or controls."

In reply thereto, it is noteworthy to quote Section 62 (c) of RA 7160, which

provides, thus:

"(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 suspension has been imposed prior
to the 90-day period immediately preceding local election, it shall be deemed
automatically lifted upon the start of the aforesaid period." cdasia

The prohibited act in number 5 of Comelec Resolution 2880 is not anymore

provided for in Comelec Resolution No. 2887 which was promulgated 05 February
1997, but nevertheless, the same is still applicable for it is just a reiteration of Section
261 (x) of the Omnibus Election Code, which provides, thus:

"SEC. 261. Prohibited Acts. — The following shall be guilty of an

Copyright 1994-2019 CD Technologies Asia, Inc. Local Autonomy and Local Government 2019 1
 election offense:

Suspension of any elective provincial, city, municipal, or barangay

officer. — The provisions of law to the contrary notwithstanding, during the
election period, any public official who suspends, without prior approval of the
Commission, any elective provincial, city, municipal, or barangay official,
unless said suspension will be for purposes of applying the "Anti-Graft and
Corrupt Practices Act" in relation to the suspension and removal of elective
officials, in which case the provisions of this Section shall be inapplicable."

It would now appear that with the onset of the 90-day period under the Local
Government Code and the 45-day period under the Omnibus Election Code, prior to
the barangay election, the respondent mayor could no longer be subjected to an
investigation and/or suspension. Hence, the request for a legal opinion on the law
applicable on the matter. prcd

Under the law on statutory construction, the provisions now under

consideration which pertain to different statutes, are one which relate to the same
thing, or which have a common purpose. Note should be taken that Section 62 (c) of
the Local Government Code and Section 261 (x) of the Omnibus Election Code, refer
to the same subject matter — suspension. In this regard, both are considered pari
materia. They should be construed together and harmonized, if possible (82 C.J.S.
Statutory 366).

While Sec. 62 (c) of the Local Government Code deals with and has particular
reference to preventive suspension only, Section 261 (x) of the Omnibus Election
Code deals with both preventive suspension and suspension as a penalty, per opinion
of the Commission on Elections in its letter addressed to Director Jacob F. Montesa
dated 11 February 1994, copy attached. By fair and reasonable interpretation, the
seeming inconsistency may lie on the matter of preventive suspension but the same
does not really exist because preventive suspension under the 30-day prohibitory
period of the Omnibus Election Code is within the 90-day prohibitory period of the
Local Government Code. Henceforth, there is really no conflict to speak of as both
laws can be made applicable without being inconsistent with each other. pred

Hope to have enlightened you on the matter.

Very truly yours,

(SGD.) MANUEL R. SANCHEZ

Copyright 1994-2019 CD Technologies Asia, Inc. Local Autonomy and Local Government 2019 2
 Acting Secretary

COMMISSION ON ELECTIONS

February 11, 1994

Copyright 1994-2019 CD Technologies Asia, Inc. Local Autonomy and Local Government 2019 3