August 12, 2009

DILG OPINION NO. 041-09

Director Buagas B. Sulaik

DILG Regional Office No. XII
Koronadal City, Cotabato

Dear Director Sulaik :

This has reference to your earlier 2nd Indorsement referring to us, for our
clarification and/or legal opinion, several documents regarding the controversy in the
implementation of the preventive suspension imposed upon the Municipal Mayor of
President Roxas, Cotabato Province. We acknowledge receipt of the following
documents, to wit:

1) The Resolution of the Sangguniang Panlalawigan dated 18

March 2009, the dispositive portion of which reads:

"PREMISES CONSIDERED, with seven (7) voting in

favor, one (1) against and one (1) abstention, this
Quasi-Judicial Body (Disciplinary Authority) hereby grants the
motion, thereby recommends to the Honorable Governor, Jesus
N. Sacdalan to issue an order preventively suspending herein
Respondent, Mayor Lucita V Raciness for a period of sixty
(60) days, effective immediately.

The dissenting vote and abstention was anchored on the

ground that prima facie case to warrant the institution of
formal administrative proceedings has not been clearly
established."

2) The letter of Governor Jesus N. Sacdalan dated 08 May 2009

asking your level's opinion on whether or not the exercise of the power to
impose preventive suspension by the Governor becomes ministerial upon the
issuance of a Sangguniang Panlalawigan Resolution recommending the
preventive suspension of a Municipal Mayor. Also, in said letter, Governor
Sacdalan has expressed his own opinion on the matter that "the exercise of the
power of preventive suspension is subject to the sound judgment and
discretion of the governor after conducting a thorough review, study and

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 evaluation of the attending facts and circumstances of the instant controversy
based on available records". ESAHca

3) Sangguniang Panlalawigan Resolution No. 205 entitled

"Resolution Asking the Opinion of the Department of the Interior and Local
Government (DILG) as to What Possible Sanction may be Imposed to the
Provincial Governor on His Failure or Refusal to Implement Preventive
Suspension as Recommended by the Sangguniang Panlalawigan".

Per the aforesaid documents, we culled these facts: Mayor Lucita V. Racines of
President Roxas, Cotabato Province, was administratively charged for Dishonesty,
Misconduct in Office, Gross Negligence, and Dereliction of Duty before the
Sangguniang Panlalawigan. Said administrative case was thereafter docketed as
Administrative Case No. 2008-064. Then, the Sangguniang Panlalawigan issued a
Resolution dated 18 March 2009 recommending to Governor Sacdalan the preventive
suspension of respondent Mayor Racines. According to the letter of Governor
Sacdalan, he only received said SP Resolution on 16 April 2009 with no attachment
of the complete records of the case. Nevertheless, Governor Sacdalan refused to issue
an order imposing the preventive suspension of respondent Mayor Racines
contending that the exercise of the power of preventive suspension is subject to his
sound judgment and discretion after conducting a thorough review, study and
evaluation of the attending facts and circumstances of the controversy based on
available records. With this, the Sangguniang Panlalawigan issued Resolution No.
205 in order to ask this level for an opinion as to what possible sanction may be
imposed on the Governor for his refusal to implement the preventive suspension as
recommended by the Sangguniang Panlalawigan.

Hence, your 2nd Indorsement.

Before dwelling on your query, may we first discuss some principles under the
Local Government of 1991 (RA 7160) regarding administrative disciplinary action
against local elective officials.

Section 61 of the Local Government Code of 1991, provides and we quote:

SECTION 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 a municipality shall

be filed before the sangguniang panlalawigan whose decision may be
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 appealed to the Office of the President; . . ."

Based on the foregoing, a verified administrative complaint against an erring

elective official of a municipality shall be filed before the sangguniang panlalawigan.
Evidently, this particular section lays down jurisdiction. Jurisdiction having been
conferred by law to the Sangguniang Panlalawigan, it follows therefore that it is also
given the power to Investigate, hear and decide cases brought before it for
adjudication. This power to investigate 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 definitely, subject to such appeals or modes of review as
may be provided by law (Cariño vs. Commission on Human Rights, 204 SCRA 483).
TAaCED

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 municipal elective official could influence the witness or pose a threat
to the safety and integrity of the records and other evidence, preventive suspension
may then be imposed by the Governor pursuant to Section 63 of the Local
Government Code of 1991, thus:

"SECTION 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 or municipality; or

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 . . .".

At this juncture, one may reasonably ask: Since the Governor, pursuant to the
aforequoted provision, will be the one to impose the preventive suspension against
the respondent municipal elective official, does it follow that he will also be the one to

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 determine whether the conditions for its imposition as set forth therein are met?

In DILG Opinion No. 38, series of 2003, this Department categorically replied
in the negative. In support of this stand, we made a distinction between
"determination" and "imposition", the latter being the function of the Governor while
the former is the concern of the Sangguniang Panlalawigan. We explained therein that
since the disciplining and investigating authority over erring municipal elective
officials is the Sangguniang Panlalawigan, it follows therefore that it has the sole
power and discretion to determine whether or not preventive suspension so warrants
against the respondent. Preventive suspension is thus said to be an incident to
jurisdiction and/or tool for the disciplining authority, that is, the Sangguniang
Panlalawigan, to make use of in the course of its administrative investigation.

To our mind, an illogical situation would be created when the Sangguniang

Panlalawigan, having acquired jurisdiction to receive and investigate administrative
complaints against erring municipal elective officials, would thereafter abdicate itself,
in favor of the Governor, of the power to determine whether preventive suspension
will be imposed against the respondent. In this situation, the law vesting jurisdiction
upon the Sangguniang Panlalawigan would be rendered nugatory considering that the
Governor may or may not concur with the result of the preliminary investigation of
the Sangguniang Panlalawigan or that August Body's initial findings of the existence
of all the elements which warrant the imposition thereof.

Hence, where a literal meaning would lead to absurdity, contradiction,

injustice, or would defeat the clear purpose of the lawmakers, we find therefore the
necessity to consider the spirit and reason of the statute. Let it be noted that
undesirable consequences were never intended by the legislature in enacting the
legislative measure. Statutes should be construed in the light of the object to be
achieved and the evil or mischief to be suppressed (LVN Pictures, Inc. vs. Phil.
Musicians Guild, 110 Phil. 725 [1961]; People vs. Purisima, 86 SCRA 542 [1978];
Commissioner of Internal Revenue vs. Filipinas compania de Seguros, 107 Phil. 1055
[1960]), and they should be given such construction as will advance the object,
suppress the mischief, and secure the benefits intended (Rivera vs. Campbell, 34 Phil.
348 [1916]). HSTCcD

Unfortunately, there is no Supreme Court ruling yet on the issue at hand. It has
to be noted, however, that in Buenaseda vs. Flavier, 226 SCRA 645, the Supreme
Court cited the earlier ruling in Nera vs. Garcia, 106 Phil. 1031, the Supreme Court
held 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
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 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).

Relative thereto, the Court of Appeals, in the case of Matugas vs. Judge
Buyser and Mayor Navarro (CA-G.R. No. 5560), had the occasion to rule, in gist, that
the determination of whether to place the respondent under preventive suspension or
not, is with the sanggunian. And once the sanggunian directs the local chief executive
concerned to impose the preventive suspension, it becomes ministerial on the latter to
impose the same, meaning he has no discretion to determine the propriety of the
implementation of the directive or order. The service has to be made without
unnecessary delay so that after being duly informed of the order, respondent can
immediately take steps to protect his interests by filing an appeal or apply for other
appropriate reliefs.

In the instant case, the Sangguniang Panlalawigan has already made the
determination on the necessity to warrant the imposition of preventive suspension
against Mayor Racines and, in fact, had already passed a Resolution recommending
the imposition of preventive suspension by Governor Sacdalan. It may be well to
emphasize that the Sangguniang Panlalawigan, in its aforesaid Resolution, has only
recommended to Governor Sacdalan the imposition of preventive suspension against
Mayor Racines. This, to our mind, falls short of the exercise of that authority by that
Sanggunian to determine as to whether or not the respondent mayor be placed under
preventive suspension. This is the effect of merely recommending to the governor the
preventive suspension of the respondent mayor. The proper procedure, therefore,
should have been for the Sangguniang Panlalawigan to determine whether or not the
respondent mayor be placed under preventive suspension. If in the affirmative, the
Sanggunian shall come up with a Resolution placing the respondent mayor under
preventive suspension. After which, and pursuant to Section 63 of the Local
Government Code, the said Sanggunian Resolution shall be forwarded to the
governor for his imposition.

At this juncture, it bears to emphasize again the Court of Appeals ruling in the
Matugas case that once the Sanggunian directs the Local Chief Executive concerned
to impose the preventive suspension, it becomes ministerial on the part of the Local
Chief Executive to impose the same.

With regard to Sangguniang Panlalawigan Resolution No. 205, as to the

possible sanctions to be imposed against the governor, may we emphasize that at this
point, there is no possible administrative sanction that could attach considering that
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 the Resolution simply recommended the preventive suspension of Mayor Racelis
thereby giving the governor the option to adopt or not to adopt the same.

We hope that we have addressed your concern accordingly. DTEHIA

Very truly yours,

(SGD.) AUSTERE A. PANADERO

Undersecretary

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