Borja v.
Comelec 1998 Lonzanida vs COMELEC [311 SCRA 602]
Facts:
Jose T. Capco, Jr. was elected as Vice-Mayor of Pateros on January 18, 1988 for a
term ending on June 30, 1992. On September 2, 1989, he became Mayor, by operation
of law, upon the death of the incumbent, Cesar Borja. Thereafter, Capco was elected
and served as Mayor for two more terms, from 1992 to 1998. On March 27, 1998,
Capco filed a Certificate of Candidacy for Mayor of Pateros in the May 11, 1998
elections. Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought
Capcos disqualification on the ground that Capco would have already served as Mayor
for 3 consecutive terms by June 30, 1998; hence, he would be ineligible to serve for
another term. The Second Division of the Comelec declared Capco disqualified but
the Comelec en banc reversed the decision and declared Capco eligible to run for
mayor. Capco was subsequently voted and proclaimed as mayor.
Issue:
Whether or not a vice-mayor who succeeds to the office of mayor by operation of law
and serves the remainder of the term is considered to have served a term in that office
for the purpose of the three-term limit.
Held:
No. The term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve the same elective position. Consequently, 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. Capco was qualified to run again as mayor in the
next election because he was not elected to the office of mayor in the first term but
simply found himself thrust into it by operation of law. Neither had he served the full
term because he only continued the service, interrupted by the death, of the deceased
mayor. The vice-mayors assumption of the mayorship in the event of the vacancy is
more a matter of chance than of design. Hence, his service in that office should not be
counted in the application of any term limit.
The policy embodied in the constitutional provision (Art. X, 8) is not only to prevent
the establishment of political dynasties but also to enhance the freedom of choice of
the people. A consideration of the historical background of Art. X, 8 of the Constitution
reveals that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. In discussing term limits, the drafters of the
Constitution did so on the assumption that the officials concerned were serving by
reason of election. To consider Capco to have served the first term in full and therefore
ineligible to run a third time for reelection would be not only to falsify reality but also to
unduly restrict the right of the people to choose whom they wish to govern them.
(Local Government, Disqualification: Exception to the 3 term limit rule)
Facts: Petitioner Lonzanida was duly elected and served two consecutive terms as
municipal mayor of San Antonio, Zambales prior to the May 1995 elections. In the May
1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again
proclaimed winner. He assumed office and discharged the duties thereof. His
proclamation in 1995 was contested by his opponent who filed an election protest. The
court rendered a judgment declaring the results of the said election last May 8, 1995,
as null and void on the ground that there was a failure of election.
In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for
mayor of San Antonio and was proclaimed winner. Prior proclamation, His opponent
timely filed a petition to disqualify him from running on the ground that he had served
three consecutive terms in the same post.
The COMELEC found that Lonzanidas assumption of office by virtue of his
proclamation in May 1995, although he was later unseated before the expiration of the
term, should be counted as service for one full term in computing the three term limit
under the Constitution and the Local Government Code. Hence, COMELEC issued a
resolution granting the petition for disqualification
Petitioner Lonzanida challenges the validity of the COMELEC resolutions maintaining
that he was duly elected mayor for only two consecutive terms and that his assumption
of office in 1995 cannot be counted as service of a term for the purpose of applying the
three term limit for local government officials, because he was not the duly elected
mayor of San Antonio in the May 1995 elections.
The private respondent maintains that the petitioners assumption of office in 1995
should be considered as service of one full term because he discharged the duties of
mayor for almost three years until March 1, 1998 or barely a few months before the
next mayoral elections.
Issue: WON petitioners assumption of office as mayor of San Antonio Zambales from
May 1995 to 1998 may be considered as service of one full term for the purpose of
applying the three-term limit for elective local government officials.
Held: No. Section 8, Art. X of the Constitution provides that, the term of office of
elective local officials, except barangay officials, which shall be determined by law shall
be three years and no such officials 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 of the Local Government Code (R.A. No. 7160) restates the same rule, that:
No local elective official shall serve for more than three 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.
The petitioner cannot be deemed to have served the May 1995 to 1998 term because
he was ordered to vacate his post before the expiration of the term.
Pursuant to the constitutional provision above, 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.
Adormeo vs COMELEC [76 SCRA 90; GR 147927; February 4, 2002]
(Municipal Corporation: Interruption, Recall Exception to the 3 term limit)
Facts: Petitioner and private respondent incumbent mayor were the only candidates
who filed their COC for mayor of Lucena City in the May 2001 elections.
Private respondent was elected mayor in May 1992, where he served the full term.
Again, he was re-elected in May 1995, where he again served the full term. In the recall
election of May 2000, he again won and served only the unexpired term of Tagarao
after having lost to the latter in the 1998 election.
Petitioner filed a petition to cancel COC and/or disqualification of the respondent in the
ground that the latter was elected and had served as city mayor for 3 consecutive terms
contending that serving the unexpired term of office is considered as 1 term.
Private respondent maintains that his service as city mayor of Lucena is not
consecutive. He lost his bid for a second re-election in 1998 and during Tagaraos
incumbency, he was a private citizen, thus he had not been a mayor for 3 consecutive
terms.
Section 8, Article X of the 1987 Constitution provides that the term of office of elective
officials, except barangay officials, which shall be determined by law, shall be 3 years
and no such official shall serve for more than 3 consecutive terms. 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.
Section 43(b) of RA 7160 (Local Government Code) provides that no local elective
official shall serve for more than 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.
Issue: WON private respondent had already served 3 consecutive term for mayor of
Lucena City.
Held: No. Private respondent was not elected for 3 consecutive terms. For nearly 2
years, he was a private citizen. The continuity of his term as mayor was disrupted by
his defeat in the 1998 elections.
Neither can respondents victory in the recall election be deemed a voluntary
renunciation for clearly it is not. 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 (Lonzanida vs COMELEC).
Hence, being elected in a recall election interrupts the 3 consecutive term limit.
Note: Recall a petition designed to remove an official from office by reason of lack of
confidence. It is initiated only in the middle of the year.
Socrates v COMELEC 2002
FACTS:
Hagedorn had been elected and served as mayor of Puerto Princesa City for
threeconsecutive 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 formers unexpired term as mayor. Socrates sought
Hagedorns disqualification under the three-term limit rule.
ISSUE:
WON Hagedorn is disqualified to run under the three-term limit rule
MMe
HELD:
These constitutional and statutory provisions have two parts. The first partprovides that
an elective local official cannot serve for more than three consecutiveterms. The clear
intent is that only consecutive terms count in determining the three-term limit rule. The
second part states that voluntary renunciation of office for any length of time does not
interrupt the continuity of service. The clear intent is that involuntary severance from
office for any length of time interruptscontinuity of service and prevents the service
before and after the interruption from being joined together to form a continuous
service or consecutive terms.
After three consecutive terms, an elective official cannot immediate re-election for a
fourth term, The prohibited election refers to the next regular election for a fourth term.
The prohibited election refers to the next regular election for the same office following
the same office following the third consecutive term. Any subsequent election, like a
recall election, is no longer covered by the prohibitionfor two reasons: 1) A subsequent
election like a recall election, is no longer animmediate reelection after the
three consecutive terms; and 2) The intervening period constitutes an involuntary
interruption in the continuity of service.
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 Hagedorns service as
mayor, not because of his voluntary renunciation, but because of a legalprohibition.
Mendoza v COMELEC 2002
Facts:
Respondent Leonardo B. Roman held the post of Governor of Bataan province a
number of times:
a) 1986 1988 Appointed OIC Governor of Bataan by former Pres. Aquino and
served up to 1988
b) 1988 1992 Elected Governor and served up to 1992
c) 1994 1995 Elected Governor during the recall election in 1993, assumed office
on 28 June 1994 and served up to 1995
d) 1995 1998 Elected Governor and served up to 1998
e) 1998 2001 Elected Governor and served up to 2001.
In 2001, private respondent Roman again filed a certificate of candidacy for the same
post in the May 2001 regular elections. On 16 May 2001, Leonardo Roman was
proclaimed by the Provincial Board of Canvassers of Bataan.
Petitioners Melanio L. Mendoza and Mario E. Ibarra seek to declare respondent
Romans election as governor of Bataan as null and void for allegedly being contrary
to Art. X, 8 of the Constitution.
Issue:
Should Roman's incumbency to the post of Governor following the recall elections be
included in determining the three-consecutive term limit fixed by law?
Held:
No. A winner who dislodges in a recall election an incumbent elective local official
merely serves the balance of the latter's term of office; it is not a full three-year term.
The law contemplates a continuous full three-year term before the proscription can
apply, providing for only one exception, i.e., when an incumbent voluntarily gives up
the office. If involuntary severance from the service which results in the incumbents
being unable to finish his term of office because of his ouster through valid recall
proceedings negates one term for purposes of applying the three-term limit, it stands
to reason that the balance of the term assumed by the newly elected local official in a
recall election should not also be held to be one term in reckoning the three-term limit.
In both situations, neither the elective local official who is unable to finish his term nor
the elected local official who only assumes the balance of the term of the ousted local
official following the recall election could be considered to have served a full three-year
term set by the Constitution.
The Constitution does not prohibit elective local officials from serving for more than
three consecutive terms because, in fact, it excludes from the three-term limit
interruptions in the continuity of service, so long as such interruptions are not due to
the voluntary renunciation of the office by an incumbent. Hence, the period from June
28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served as
governor of Bataan by virtue of a recall election held in 1993, should not be
counted. Since on May 14, 2001 respondent had previously served as governor of
Bataan for only two consecutive terms (1995-1998 and 1998-2001), his election on that
day was actually only his third term for the same position.
A recall term should not be considered as one full term, because a contrary
interpretation would in effect cut short the elected officials service to less than nine
years and shortchange his constituents. The desire to prevent monopoly of political
power should be balanced against the need to uphold the voters obvious preference
who, in the present case, is Roman who received 97 percent of the votes cast.
Osmena v COMELEC 1991
FACTS:
Petitioners argue that RA 7056, in providing for desynchronized elections violates the
Constitution:
1. Republic Act 7056 violates the mandate of the Constitution for the holding of
synchronized national and local elections on the second Monday of May 1992;
2. Republic Act 7056, particularly the 2nd paragraph of Section 3 thereof, providing that
all incumbent provincial, city and municipal officials shall hold over beyond June 30,
1992 and shall serve until their successors shall have been duly elected and qualified
violates Section 2, Article XVIII (Transitory Provision) of the Constitution;
3. The same paragraph of Section 3 of Republic Act 7056, which in effect, shortens the
term or tenure of office of local officials to be elected on the 2nd Monday of November,
1992 violates Section 8, Article X of the Constitution;
4. Section 8 of Republic Act 7056, providing for the campaign periods for Presidential,
Vice-Presidential and Senatorial elections, violates the provision of Section 9, Article IX
under the title Commission on Elections of the Constitution;
5. The so-called many difficult if not insurmountable problems mentioned in Republic
Act 7056 to synchronized national and local elections set by the Constitution on the
second Monday of May, 1992, are not sufficient, much less, valid justification for
postponing the local elections to the second Monday of November 1992, and in the
process violating the Constitution itself. If, at all, Congress can devise ways and means,
within the parameters of the Constitution, to eliminate or at least minimize these
problems and if this, still, is not feasible, resort can be made to the self-correcting
mechanism built in the Constitution for its amendment or revision.
On the other hand, the SolGen, counsel for COMELEC, prays for the denial of this
petition arguing that the question is political in nature and that the petitioners lack legal
standing to file the petition and what they are asking for is an advisory opinion from the
court, there being no justiciable controversy to resolve. On the merits, the SolGen
contends that Republic Act 7056 is a valid exercise of legislative power by Congress
and that the regular amending process prescribed by the Constitution does not apply
to its transitory provisions.
PROCEDURAL ISSUE: WON the Court has competence to take cognizance of the
instant petition?
HELD: Yes.
What is involved here is the legality, not the wisdom of RA 7056. Hence, contrary to
SolGens contention, the issue in this case is justiciable rather than political. And even
if the question were political in nature, it would still come within the Courts power
considering the expanded jurisdiction conferred by Article VIII, Section 1 of the 1987
Constitution, which includes the authority to determine whether grave abuse of
discretion amounting to excess or lack of jurisdiction has been committed by any branch
or instrumentality of the government. Regarding the challenge to the petitioners
standing, the Supreme Court held that even if the petitioners have no legal standing,
the Court has the power to brush aside technicalities considered the transcendental
importance of the issue being raised herein.
MAIN ISSUE: WON RA 7056 is unconstitutional?
HELD: Yes. It is unconstitutional.
The Supreme Court held that the law contravenes Article XVIII, Sections 2 and 5 of the
1987 Constitution which provides for the synchronization of national and local elections.
The said law, on the other hand, provides for the de-synchronization of election by
mandating that there be two separate elections in 1992. The term of synchronization
in the mentioned constitutional provision was used synonymously as the phrase holding
simultaneously since this is the precise intent in terminating their Office Tenure on the
same day or occasion. This common termination date will synchronize future elections
to once every three years.
R.A. No. 7056 also violated Sec. 2, Art. XVIII of the 1987 Constitution which provides
that the local official first elected under the Constitution shall serve until noon of June
30, 1992. But under Sec. 3 of RA 7056, these incumbent local officials shall hold over
beyond June 30, 1992 and shall serve until their successors shall have been duly
elected and qualified. The Supreme Court, quoting Corpus Juris Secundum, states that
it is not competent for the legislature to extend the term of officers by providing that
they shall hold over until their successors are elected and qualified where the
constitution has in effect or by clear implication prescribed the term and when the
Constitution fixes the day on which the official term shall begin, there is no legislative
authority to continue the office beyond that period, even though the successors fail to
qualify within the time.
R.A. No. 7056 also violated the clear mandate of Sec. 8, Art. X of 1987 Constitution
which fixed the term of office of all elective local officials, except barangay officials, to
three (3) years. If the local election will be held on the second Monday of November
1992 under RA 7056, those to be elected will be serving for only two years and seven
months, that is, from November 30, 1992 to June 30, 1995, not three years.
The law was also held violative of Sec. 9, Article IX of the Constitution by changing the
campaign period. RA 7056 provides for a different campaign period, as follows:
a) For President arid Vice-Presidential elections one hundred thirty (130) days before
the day of election.
b) For Senatorial elections, ninety (90) days before the day of the election, and
c) For the election of Members of the House of Representatives and local elective
provincial, city and municipal officials forty-five (45) days before the day of the elections.
Munez v Judge Arino
AM No.MTJ-94-985
February 21, 1995
In December 26, 1989, Mayor Asuero Irisari of Loreto, Agusan del Sur summoned to
his office Apolinario S. Munez (complainant) for a conference respecting a land dispute
which the latter had with one Tirso Amado. Due to Munezs failure to appear in the said
conference, Mayor Irisari issued a warrant of arrest against him on December 27, 1989.
Munez was arrested thereafter. Complainant Muniz filed two cases against Mayor
Irisari. The first was with the Office of the Ombudsman for grave misconduct and
usurpation of Judicial function and the second, an administrative complaint with the
Sangguniang Panlalawigan of Agusan del Sur for violation of the Constitution,
misconduct in office and abuse of authority. Based on their preliminary findings, the
Office of the Ombudsman filed a criminal case for usurpation of judicial function against
Mayor Irisari in the MCTC. The case was later assigned to respondent Judge Ciriaco
Arino after the first judge inhibited himself from the case.
Mayor Irisari moved to quash the information alleging that under 143(3) of the former
Local Government Code (BP 337), mayors were authorized to issue warrants of arrest.
Judge Arino denied the motion to quash on the ground that the 1987 Constitution had
the effect of removing the power of mayors to issue a warrant of arrest. In the
administrative case, the Sangguniang Panlalawigan found him guilty and ordered him
suspended for 8 months without pay. On appeal, however, the DILG reversed the
decision on the ground that what the mayor had issued was actually just an invitation
or a summons and not a Warrant of Arrest as so worded. Mayor Irisari then moved
for reconsideration of this MTQ from Judge Arino on the ground that as the DILG
exculpated him for the same acts from which the 2 cases were based from, he should
be acquitted. Judge Arino, this time, sided with the Mayor and acquitted him. Upon
receipt of the order, Munez filed a complaint charging Judge Arino with knowingly
rendering an unjust judgment for dismissing the case against Mayor Irisari.
Issue:
WON Judge Arino is administratively liable for dismissing the criminal case against
Mayor Irisari.

Held: Yes.
Under the 1987 Constitution, Mayors no longer have the power to issue a Warrant
of Arrest.
The court ruled that Mayor Irisani could not have mistaken the Warrant of Arrest for a
Summon. In fact, Mayor Irisari justified his order on the basis of 143(3) of the former
LGC (BP. 337) which expressly provided that "in cases where the mayor may conduct
preliminary investigation, the mayor shall, upon probable cause after examination of
witnesses, have the authority to order the arrest of the accused." This provision had,
however, been repealed by Art. III, s. 2 of the 1987 Constitution which provides that "no
search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge."
The acts alleged in the information constitute a crime. Under Art. 241 of the Revised
Penal Code, the crime of usurpation of judicial authority involves the following elements:
(1) that the offender is an officer of the executive branch of the government; and (2)
that he assumes judicial powers, or obstructs the execution of any order or decision
rendered by any judge within his jurisdiction. These elements were alleged in the
information. Mayor Irisari was an officer of the executive branch. When he issued the
warrant, there was before him no criminal case, but only a land dispute. It would then
appear that he assumed a Judicial function which even a judge could not have done.
All the more, therefore, respondent judge should not have dismissed the criminal case
against the mayor.
Judge Ciriaco Arino should have known that what was before him was a criminal case
and he should have considered solely the facts alleged in the information in resolving
the motion to dismiss of the accused. To justify his reliance on the opinion of the DILG,
respondent judge invoked the rule in administrative law that the findings of facts of
administrative agencies, when supported by substantial evidence, are binding on the
courts in the absence of a showing of fraud, imposition or dishonesty. The Court held
that this is grossly erroneous.
Judge Arino was fined Php 5,000.
Greater Balanga Development Corporation vs. Municipality of Balanga, Bataan
(1998) G.R. No. 83987 December 27, 1994
FACTS:
The case involves a parcel of land, Lot 261-B-6-A-3 located behind the public market
in the Municipality of Balanga, Province of Bataan. It is registered in the name of
Greater Balanga Development, Corp., owned and controlled by the Camacho family.
The lot was part of Lot 261-B, formerly registered in the name of Aurora Banzon
Camacho, which was later subdivided into certain lots, some of which were sold,
others donated. Five buyers of the lot filed a civil case against Camacho for partition
and delivery of titles.
Petitioner applied for and was granted a business permit by the Office of the Mayor
of Balanga but failed to mention the existence of the civil case for partition and
delivery of titles. The permit was granted the privilege of a real estate
dealer/privately-owned market operator. However, the Sangguniang Bayan (SB)
passed Resolution No. 12 s-88, annulling the Mayor's permit issued to Petitioner, on
the ground that the issue as to the ownership of the lot caused anxiety, uncertainty
and restiveness among the stallholders and traders in the lot, and advising the
Mayor to revoke the permit to operate a public market. The Mayor then revoked the
permit through EO No. 1 s-88.
Petitioner filed this petition with prayer for preliminary prohibitory and mandatory
injunction or restraining order and to reinstate the Mayor's permit and to curtail the
municipality's collection of market and entrance fees from the lot occupants. He
alleges that: 1) it didn't violate any law, thus, there's no reason for revocation of the
permit; 2) Respondents failed to observe due process in the revocation; 3) the
collection of market fees is illegal.
On the other hand, Respondents assert that the Mayor as the local chief executive
has the power to issue, deny or revoke permits. They claim that the revocation was
due to the violation by Petitioner of Section 3A-06(b) of the Balanga Revenue Code
when it: 1) made false statement in the application form, failing to disclose that the
lot was subject to adverse claims for which a civil case was filed; 2) failed to apply
for 2 separate permits for the 2 lines of business (real estate and public market).
ISSUE:
W/N the revocation of the Mayor's permit was valid.
HELD:
NO. The powers of municipal corporations are to be construed in strictissimi
juris and any doubt or ambiguity must be construed against the municipality. The
authority of the Mayor to revoke permits is premised on a violation by the grantee
of any of its conditions for its grant. For revocation to be justified under the Balanga
Revenue Code, there must be: 1) proof of willful misrepresentation, and 2)
deliberate intent to make a false statement. Good faith is always presumed.
In this case, the application for Mayor's permit requries the applicant to state the
type of business, profession, occupation, privileges applied for. Petitioner left this
entry bank in its application form. It is only in the Mayor's permit itself that
petitioner's lines of business appear. Revocation is not justified because Petitioner
did not make any false statement therein.
Neither was petitioner's applying for two businesses in one permit a ground for
revocation. The second paragraph of Section 3A-06(b) does not expressly require
two permits for their conduct of two or more businesses in one place, but only that
separate fees be paid for each business. Granting, however, that separate permits
are actually required, the application form does not contain any entry as regards
the number of businesses the applicant wishes to engage in.
The SB's Resolution merely mentioned the plan to acquire the Lot for expansion
of the Balanga Public Market adjacent thereto. The SB doesn't actually maintain a
public market on the area. Until expropriation proceedings are instituted in court,
the
landowner cannot be deprived of its right over the land.
Of course, the SB has the duty in the exercise of its police powers to regulate any
business subject to municipal license fees and prescribe the conditions under
which a municipal license already issued may be revoked (B.P. Blg. 337, Sec. 149
[1] [r]), but the "anxiety, uncertainty, restiveness" among the stallholders and
traders doing business on a property not owned by the Municipality cannot be a
valid ground for revoking the permit of Petitioner.
Also, the manner by which the Mayor revoked the permit transgressed petitioner's
right to due process. The alleged violation of Section 3A-06(b) of the Balanga
Revenue Code was not stated in the order of revocation, and neither was petitioner
informed of this specific violation. Moreover, Respondent Municipality isn't the
owner of Lot 261 B-6-A-3, and thus cannot collect market fees, which only an
owner can do.
LIM VS. COURT OF APPEALS G.R. No. 111397,August 12, 2002 CARPIO, J.:
FACTS: On Dec. 7, 1992, Bistro Pigale, Inc. filed before the trial court a petition
for mandamus and prohibition against Mayor Lim of Manila because the policemen
under his instructions inspected and investigated its license as well as the work
permits and health certificates of its staff. This resulted to the stoppage of work in
Bistros night club (New Bangkok Club) and restaurant (Exotic Garden Restaurant)
operations. Mayor Lim also refused to accept its application for a business license
as well as the work permit applications of the staff members for the year 1993.
Acting on Bistros application for injunctive relief, the trial court issued a TRO on
Dec. 29, 1992 ordering Lim and/or his agents to refrain from inspecting or
interfering in Bistros operations. However, despite the trial courts order, Lim still
issued a closure order and sent policemen to carry this out. Lim filed a motion to
dissolve the injunctive order and to dismiss the case contending that the power of
the mayor to inspect and investigate commercial establishments as well as its staff
members is inherent in the statutory power of the city mayor to issue, suspend or
revoke business permits and licenses as expressly provided in Sec. 11 (I), Art. II
of the revised Charter of the City of Manila and in Sec. 455 par. 3 (iv) of the LGC
of 1991.
The trial court denied Lims motion. Lim filed with CA a petition for certiorari,
prohibition and mandamus against Bistro and Judge Reyes claiming that the judge
committed grave abuse of discretion amounting to lack of jurisdiction in issuing the
writ of prohibitory preliminary injunction in favor of Bistro. CA sustained the trial
court orders and denied Lims motion for reconsideration. Subsequently, Manila
City Ordinance No. 7783 took effect. Lim ordered the WPD command to
permanently close down Bistros operation. Hence; this petition for review on
certiorari filed before the SC.
ISSUE:
Whether or not CA erred in upholding the trial courts order.
HELD:
NO. Sec. 11 (I), Art. II of the Revised Chapter of Manila and Sec. 455 (3) (iv) of the
LGC clearly provides that power of the Mayor to issue business licenses and
permits necessarily includes the power to suspend, revoke or even refuse to issue
the same.
However, the power to suspend or revoke is expressly premised on the violation
of permits and licenses. The law refers to the violation of the conditions on which
the licenses and permits were issued. Similarly, the power to refuse the issuance
of such is premised on the non-compliance with the pre-requisites. The mayor must
observe due process in the exercise of such power, which means that he shall give
the applicant or the licensee the duty to be heard. Even though the mayor has the
power to investigate private commercial establishments for the violations, still, he
has no power to order a police raid in the guise of inspection or investigation. Lim
has no authority to close down Bistro without due process of law.In this instant
case, Lims exercise of power violated Bistros property rights that are protected
under the due process clause of the constitution
De Rama v CA 2001
Facts: Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitoner
Conrado De Rama wrote a letter to the CSC seeking the recall of the appointments of
14 municipal employees. Petitioner justified his recall request on the allegation that
the appointments of said employees were midnight appointments of the former
mayor, done in violation of Art. VII, Sec. 15 of the Constitution. The CSC denied
petitioners request for the recall of the appointments of the 14 employees for lack
of merit. The CSC dismissed petitioners allegation that these were
midnight appointments, pointing out that the constitutional provision relied upon by
petitioner prohibits only those appointments made by an outgoing President and
cannot be made to apply to local elective officials. The CSC opined that the
appointing authority can validly issueappointments until his term has expired, as long
as the appointee meets the qualification standards for the position.
Issue: Whether or not the appointments made by the outgoing Mayor are forbidden
under Art. VII, Sec. 15 of the Constitution
Held: The CSC correctly ruled that the constitutional prohibition on so-called
midnight appointments, specifically those made within 2 months immediately prior to
the next presidential elections, applies only to the President or Acting President.
There is no law that prohibits localelective officials from making appointments during
the last days of his or her tenure.
Osea v Malaya 2002
FACTS:
Petitioner Eleonor Osea filed a protest case with the Civil Service Commission alleging
that she was appointed as Officer-in-Charge, Assistant Schools Division
Superintendent of Camarines Sur, by the then Secretary of DECS, upon the
endorsement of the Provincial School Board of Camarines Sur. However, despite this,
President Fidel Ramos, appointed respondent Corazon Malaya to the position of
Schools Division Superintendent of Camarines Sur.
Petitioner claims that the appointment of respondent was made without prior
consultation with the Provincial School Board, in violation of Section 99 of the Local
Government Code as well as her vested right as the Schools Division Superintendent
of Camarines Sur. Petitioner prayed that respondents appointmentbe recalled and set
aside for being null and void.
The pertinent portion of Section 99 of Republic Act No. 7610, also known as the Local
Government Code of 1991, states:
Sec. 99. Functions of Local School Boards. --- The provincial, city or municipal
school board shall:
xxx xxx xxx.
The Department of Education, Culture and Sports shall consult the local school boards
on the appointment of division superintendents, district supervisors, school principals,
and other school officials.
The Civil Service Commission dismissed petitioners protest complaint. The CSC found
that President Ramos appointed respondent without any specific division. Thus,
respondent performed the functions of Schools Division Superintendent in Iriga City.
On November 3, 1997, Sec. Gloria designated respondent as Schools Division
Superintendent of Camarines Sur, and petitioner Osea as Schools Division
Superintendent of Iriga City. CSC held that Sec.99 of the LGC of 1991 contemplates a
situation where the DECS issues the appointments, whereas
respondents appointment was made by the President, in the exercise of his appointing
power. Moreover, the designation of respondent as Schools Division Superintendent of
Camarines Sur and of petitioner as Schools Division Superintendent of Iriga City were
in the nature of reassignments, in which case consultation with the local school board
was unnecessary.
Petitioners MR was denied. Hence, she filed a petition for certiorari
ISSUE:
Whether respondents appointment require the mandatory consultation with the Local
School Board under Sec.99 of RA 7160.
HELD:
Section 99 of the LGC applies to appointments made by the DECS because at the time
of the enactment of the LGC, schools division superintendents were appointed by the
DECS to specific division or location. However, in 1994, the Career Executive Service
Board issued a Memorandum Circular placing the positions of schools division
superintendent and assistant schools division superintendent within the career
executive service. Consequently, the power to appoint persons to career executive
service positions was transferred from the DECS to the President.
The appointment may not be specific as to location. The prerogative to designate the
appointees to their particular stations was vested in the Department of Education,
Culture and Sports Secretary, pursuant to the exigencies of the service, as provided
in Department of Education, Culture and Sports Order No. 75, Series of 1996.
In the case at bar, the appointment issued by President Ramos in favor of respondent
to the Schools Division Superintendent position on September 3, 1996 did not specify
her station. It was Secretary Gloria who, in a Memorandum dated November 3, 1997,
assigned and designated respondent to the Division of Camarines Sur, and petitioner
to the Division of Iriga City.
In addition, under the circumstances, the designation of respondent as Schools Division
Superintendent of Camarines Sur was not a case of appointment but rather in the
nature of reassignment from Iriga City, where she previously exercised her functions
as Officer-in-Charge-Schools Division Superintendent, to Camarines Sur.
Therefore, Section 99 of the LGC, which requires prior consultation with the local school
board does not apply. It only refers to appointments made by the Department of
Education, Culture and Sports. Such is the plain meaning of the said law.
Appointment vs. Reassignment
Appointment should be distinguished from reassignment. An appointment may be
defined as the selection, by the authority vested with the power, of anindividual who is
to exercise the functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless
he is replaceable at pleasure because of the nature of his office.
On the other hand, a reassignment is merely a movement of an employee from one
organizational unit to another in the same department or agency which does not involve
a reduction in rank, status or salary and does not require the issuance of
an appointment. In the same vein, a designation connotes merely the imposition
of additional duties on an incumbent official
Petitioner asserts a vested right to the position of Schools Division Superintendent of
Camarines Sur, citing her endorsement by the Provincial School Board. Her
qualification to the office, however, lacks one essential ingredient, i.e.,
herappointment thereto. While she was recommended by Secretary Gloria to President
Ramos for appointment to the position of Schools Division Superintendent of
Camarines Sur, the recommendation was not acted upon by the President.
Petitioner Osea's designation as Officer-in-Charge, Assistant Schools Division
Superintendent, was expressly made subject to further advice from the DECS. Thus,
her designation was temporary. In fact, there was a need to recommend her to the
President for appointment in a permanent capacity. Inasmuch as she occupied her
position only temporarily, petitioner can be transferred or reassigned to other positions
without violating her right to security of tenure. Indeed, petitioner has no vested right to
the position of Schools Division Superintendent of Camarines Sur.
GANZON VS CA
G.R. No. 93252 August 5 1991
FACTS:
Ganzon, after having been issued three successive 60-day of suspension order by
Secretary of Local Government, filed a petition for prohibition with the CA to bar
Secretary Santos from implementing the said orders. Ganzon was faced with 10
administrative complaints on various charges on abuse of authority and grave
misconduct.
ISSUE:
Whether or not the Secretary of Local Government (as the alter ego of the President)
has the authority to suspend and remove local officials.
RULING:
The Constitution did nothing more, and insofar as existing legislation authorizes the
President (through the Secretary of Local Government) to proceed against local
officials administratively, the Constitution contains no prohibition. The Chief Executive
is not banned from exercising acts of disciplinary authority because she did not
exercise control powers, but because no law allowed her to exercise disciplinary
authority.
In those case that this Court denied the President the power (to suspend/remove) it
was not because that the President cannot exercise it on account of his limited power,
but because the law lodged the power elsewhere. But in those cases in which the law
gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty in
sustaining him.
We reiterate that we are not precluding the President, through the Secretary of
Interior from exercising a legal power, yet we are of the opinion that the Secretary of
interior is exercising that power oppressively, and needless to say, with a grave abuse
of discretion.
As we observed earlier, imposing 600 days of suspension which is not a remote
possibility Mayor Ganzon is to all intents and purposes, to make him spend the rest of
his term in inactivity. It is also to make, to all intents and purposes, his suspension
permanent.
REYES V. COMELEC (1996)
Renato U. Reyes was the mayor of the municipality of Bongabong, Oriental Mindoro,
having been elected to that office in 1992. In 1994, an administrative complaint was
filed against him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. In 1995,
the Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his
removal from office. proceedings in the case and was about to render judgment,
petitioner filed a petition for certiorari, prohibition and injunction with the Regional Trial
Court alleging that the proceedings had been terminated without giving him a chance
to be heard. A temporary restraining order was issued by the court on February 7,
1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a
result, the decision of the Sangguniang Panlalawigan could not be served upon
Reyes. But on March 3, 1995, following the expiration of the temporary restraining
order and without any injunction being issued by the Regional Trial Court, an attempt
was made to serve the decision upon petitioner's counsel in Manila. However, the
latter refused to accept the decision. On March 23, 1995, the Presiding Officer of the
Sangguniang Panlalawigan, Vice Governor Pedrito A. Reyes, issued an order for
petitioner to vacate the position of mayor and peacefully turn over the office to the
incumbent vice mayor. But service of the order upon petitioner was also refused. In
1995, Reyes run again. On March 24, 1995, private respondent Rogelio de Castro, as
registered voter of Bongabong, sought the disqualification of petitioner as candidate
for mayor, citing the Local Government Code of 1991. In 1995, the Municipal Board of
Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by the
COMELEC, proclaimed him the duly-elected mayor. The COMELEC en banc
declared him to have been validly disqualified as candidate and, consequently, set
aside his proclamation as municipal mayor of Bongabong. Hence the petition in G.R.
No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by
the COMELEC on the ground that the decision in the administrative case against
petitioner Reyes was not yet final and executory and therefore could not be used as
basis for his disqualification. It is contended that the charges against him were
rendered moot and academic by the expiration of the term during which the acts
complained of had allegedly been committed. Invoking the ruling in the case of
Aguinaldo v. Santos, petitioner argues that his election on May 8, 1995 is a bar to his
disqualification.
On the other hand, it appears that petitioner Julius M. Garcia, who obtained the
second highest number of votes next to petitioner Reyes in the same elections of May
8, 1995, intervened contending that he should be declared as Mayor.
Issue 1) WON the decision of the Sangguniang Panlalawigan, ordering Reyes
removed from office, is not yet final because he has not been served a copy thereof
Held: No. It appears, however, that the failure of the Sangguniang Panlalawigan to
deliver a copy of its decision was due to the refusal of petitioner and his counsel to
receive the decision. In the case at bar, petitioner was given sufficient notice of the
decision. Prudence required that, rather than resist the service, he should have
received the decision and taken an appeal to the Office of the President in
accordance with R.A. No. 7160, 67. 8 But petitioner did not do so. Accordingly, the
decision became final on April 2, 1995, 30 days after the first service upon petitioner.
Issue 2) WON the election of petitioner rendered the administrative charges against
him moot and academic.
Held: No. Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held
that a public official could not be removed for misconduct committed during a prior
term and that his reelection operated as a condonation of the officer's previous
misconduct to the extent of cutting off the right to remove him therefor. But that was
because in that case, before the petition questioning the validity of the administrative
decision removing petitioner could be decided, the term of office during which the
alleged misconduct was committed expired. Removal cannot extend beyond the term
during which the alleged misconduct was committed. If a public official is not removed
before his term of office expires, he can no longer be removed if he is thereafter
reelected for another term. This is the rationale for the ruling in the two Aguinaldo
cases.The case at bar is the very opposite of those cases. Here, although petitioner
Reyes brought an action to question the decision in the administrative case, the
temporary restraining order issued in the action he brought lapsed, with the result that
the decision was served on petitioner and it thereafter became final on April 3, 1995,
because petitioner failed to appeal to the Office of the President. He was thus validly
removed from office and, pursuant to 40(b) of the Local Government Code, he was
disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there was no
provision similar to 40(b) which disqualifies any person from running for any elective
position on the ground that he has been removed as a result of an administrative
case. The Local Government Code of 1991 (R.A. No. 7160) could not be given
retroactive effect.
Joson v Exec. Secretary Torres 1998
FACTS
Petitioner Governor Joson was filed a complaint before the Office of the President for
barging violently into the session hall of the Sangguniang Panlalawigan in the company
of armed men. The case was endorsed to the DILG. For failure to file an answer after
three (3) extensions, petitioner was declared in default and ordered the petitioner 60-
day preventive suspension. Petitioner later Motion to Conduct Formal Investigation.
DILG denied the motion declaring that the submission of position papers substantially
complies with the requirements of procedural due process in administrative
proceedings. Later, the Executive Secretary, by authority of the President, adopted the
findings and recommendation of the DILG Secretary. The former imposed on petitioner
the penalty of suspension from office for six (6) months without pay.
ISSUES
Whether or not:
(a) Preventive suspension is proper;
(b) Procedural due process is violated;
(c) The resolution of DILG Secretary is invalid on the ground of undue delegation;
that it is the President who is the Disciplining Authority, not the Secretary of DILG;
RULING
(a) Yes. Preventive suspension may be imposed by the Disciplining Authority at any
time (a) after the issues are joined; (b) when the evidence of guilt is strong; and (c)
given the gravity of the offense, there is great probability that the respondent, who
continues to hold office, could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence. The act of respondent in allegedly
barging violently into the session hall of the Sangguniang Panlalawigan in the company
of armed men constitutes grave misconduct. The allegations of complainants are
bolstered by the joint-affidavit of two (2) employees of the Sangguniang
Panlalawigan. Respondent who is the chief executive of the province is in a position to
influence the witnesses. Further, the history of violent confrontational politics in the
province dictates that extreme precautionary measures be taken.
(b) Yes. The rejection of petitioners right to a formal investigation denied him
procedural due process. Section 5 of A. O. No. 23 provides that at the preliminary
conference, the Investigating Authority shall summon the parties to consider whether
they desire a formal investigation. This provision does not give the Investigating
Authority the discretion to determine whether a formal investigation would be
conducted. The records show that petitioner filed a motion for formal investigation.
There is nothing in the Local Government Code and its Implementing Rules and
Regulations nor in A.O. No. 23 that provide that administrative cases against elective
local officials can be decided on the basis of position papers. A.O. No. 23 states that
the Investigating Authority may require the parties to submit their respective
memoranda but this is only after formal investigation and hearing.
(c) No. The DILG resolution is valid. The President remains the Disciplining
Authority. What is delegated is the power to investigate, not the power to discipline.
The power to discipline evidently includes the power to investigate. As the Disciplining
Authority, the President has the power derived from the Constitution itself to investigate
complaints against local government officials. A. O. No. 23, however, delegates the
power to investigate to the DILG or a Special Investigating Committee, as may be
constituted by the Disciplining Authority. This is not undue delegation, contrary to
petitioner Josons claim.
Under the doctrine of qualified political agency which recognizes the establishment
of a single executive, all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are assistants
and agents of the Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions
of the Chief Executive are performed by and through the executive departments, and
the acts of the Secretaries of such departments, performed and promulgated in the
regular course of business, are, unless disapproved or reprobated by the Chief
Executive presumptively the acts of the Chief Executive.
This doctrine is corollary to the control power of the President provided in the
Constitution. Control is said to be the very heart of the power of the presidency. As
head of the Executive Department, the President, however, may delegate some of his
powers to the Cabinet members except when he is required by the Constitution to act
in person or the exigencies of the situation demand that he acts personally. The
members of Cabinet may act for and in behalf of the President in certain matters
because the President cannot be expected to exercise his control (and supervisory)
powers personally all the time. Each head of a department is, and must be, the
Presidents alter ego in the matters of that department where the President is required
by law to exercise authority.
Pablico v Villapando 2002
Facts:
An administrative complaint was filed with the Sangguniang Panlalawigan of Palawan
against then Mayor Alejandro Villapando of San Vicente, Palawan for abuse of authority
and culpable violation of the Constitution for entering into a consultancy agreement with
Orlando Tiape, a defeated mayoralty candidate. Complainants argue that this
amounted to appointment to a government position within the prohibited one-year
period under Article IX-B, Sec. 6 of the 1987 Constitution.

In his answer, Villapando invoked Opinion No. 106, s. 1992, of the Department of
Justice dated August 21, 1992, stating that the appointment of a defeated candidate
within one year from the election as a consultant does not constitute an appointment to
a government office or position as prohibited by the Constitution.
The Sangguniang Panlalawigan found respondent guilty and imposed on him the
penalty of dismissal from service. The Office of the President affirmed the decision.
Vice-mayor Pablico took his oath as municipal mayor in place of Villapando.
The Court of Appeals declared the decisions of the SP and OP void, and ordered
Pablico to vacate the office.
Issue:
May local legislative bodies and/or the Office of the President validly impose the penalty
of dismissal from service on erring elective local officials?
Held:
Section 60 of the Local Government Code of 1991 provides:
Section 60. Grounds for Disciplinary Actions. An elective local official may be
disciplined, suspended, or removed from office on any of the following grounds:
x x x x x x
An elective local official may be removed from office on the grounds enumerated above
by order of the proper court.
It is clear from the last paragraph of the aforecited provision that the penalty of dismissal
from service upon an erring elective local official may be decreed only by a court of
law. Thus, in Salalima, et al. v. Guingona, et al., we held that [t]he Office of the
President is without any power to remove elected officials, since such power is
exclusively vested in the proper courts as expressly provided for in the last paragraph
of the aforequoted Section 60.
Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local
Government Code, however, adds that (b) An elective local official may be removed
from office on the grounds enumerated in paragraph (a) of this Article [The grounds
enumerated in Section 60, Local Government Code of 1991] by order of the proper
court or the disciplining authority whichever first acquires jurisdiction to the exclusion of
the other. The disciplining authority referred to pertains to the Sangguniang
Panlalawigan/Panlungsod/Bayan and the Office of the President.
As held in Salalima, this grant to the disciplining authority of the power to remove
elective local officials is clearly beyond the authority of the Oversight Committee that
prepared the Rules and Regulations. No rule or regulation may alter, amend, or
contravene a provision of law, such as the Local Government Code. Implementing
rules should conform, not clash, with the law that they implement, for a regulation which
operates to create a rule out of harmony with the statute is a nullity.
Aguinaldo v Santos 1992
Facts:
Aguinaldo was the duly electedGovernor of the province of Cagayan. After the
December 1989 coup dtat was crushed, DILG Secretary Santos sent a telegram &
letter to Governor Aguinaldo requiring him toshow cause why he should not be
suspended or removed from office for disloyalty to theRepublic. A sworn complaint was
also filed by Mayors of several municipalities in Cagayan against Aguinaldo for acts
committed during the coup. Aguinaldo denied being privy to the planning of the coup or
actively participating in its execution, though he admitted that he was sympathetic to
the cause of the rebel soldiers.
The Secretary suspended petitioner from office for 60 days from notice, pending the
outcome of the formal investigation. Later, the Secretary rendered a decision finding
petition guilty as charged and ordering his removal from office. Vice-Governor Vargas
was installed as Governor. Aguinaldo appealed.
Aguinaldo filed a petition for certiorari and prohibition with preliminary mandatory
injunction and/or restraining order with the SC, assailing the decision of respondent
Secretary of Local Government. Petitioner argued that: (1) that the power of respondent
Secretary to suspend or remove local government official under Section 60, Chapter IV
of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that since respondent
Secretary no longer has power to suspend or remove petitioner, the former could
not appoint respondent Melvin Vargas as Governor; and (3) the alleged act of disloyalty
committed by petitioner should be proved by proof beyond reasonable doubt, and not
be a mere preponderance of evidence, because it is an act punishable as rebellion
under the Revised Penal Code.
While the case was pending before the SC, Aguinaldo filed his certificate of candidacy
for the position of Governor of Cagayan. Three petitions fordisqualification were filed
against him on the ground that he had been removed from office.
The Comelec granted the petition. Later, this was reversed on the ground that the
decision of the Secretary has not yet attained finality and is still pending review with the
Court. As Aguinaldo won by a landslide margin in the elections, the resolution paved
the way for his eventual proclamation as Governor of Cagayan.
Issues:
1. WON petitioner's re-election to the position of Governor of Cagayan has rendered the
administration case moot and academic
2. WON the Secretary has the power to suspend or remove local government officials as
alter ego of the President
3. WON proof beyond reasonable doubt is required before petitioner could be removed from
office.
Held:
1. Yes. Aguinaldos re-election to the position of Governor of Cagayan has rendered
the administrative case pending moot and academic. It appears that after the
canvassing of votes, petitioner garnered the most number of votes among the
candidates for governor of Cagayan province. The rule is that a public official cannot
be removed for administrative misconduct committed during a prior term, since his re-
election to office operates as a condonation of the officer's previous misconduct to the
extent of cutting off the right to remove him therefor.The foregoing rule, however, finds
no application to criminal cases pending against petitioner for acts he may have
committed during the failed coup.
2. Yes. The power of the Secretary to remove local government officials is anchored on
both the Constitution and a statutory grant from the legislative branch. The
constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution
which vest in the President the power of control over all executive
departments, bureaus and offices and the power of general supervision over local
governments. It is a constitutional doctrine that the acts of the department head are
presumptively the acts of the President unless expressly rejected by him. Furthermore,
it cannot be said that BP337 was repealed by the effectivity of the present Constitution
as both the 1973 and 1987 Constitution grants to the legislature the power and authority
to enact a local government code, which provides for the manner of removal of local
government officials. Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., this court had
the occasion to state that B.P. Blg. 337 remained in force despite the effectivity of the
present Constitution, until such time as the proposed Local Government Code of 1991
is approved. The power of the DILG secretary to remove local elective government
officials is found in Secs. 60 and 61 of BP 337.
3. No. Petitioner is not being prosecuted criminally, but administratively where the
quantum of proof required is only substantial evidence.
Carpio-Morales vs. Binay, G.R. No. 217126-27, Nov. 10, 2015
(RE: Validity of 1st and 2nd paragraphs of RA 6770)
FACTS:
The Ombudsmans argument against the CAs lack of subject matter jurisdiction
over the main petition, and her corollary prayer for its dismissal, is based on her
interpretation of Section 14, RA 6770, or the Ombudsman Act, which reads in full:
Section 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.
The Ombudsmans maintains that the first paragraph of Section 14, RA 6770
textually prohibits courts from extending provisional injunctive relief to delay any
investigation conducted by her office. Despite the usage of the general phrase [n]o
writ of injunction shall be issued by any court, the Ombudsman herself concedes that
the prohibition does not cover the Supreme Court.
ISSUE:
Are the first and second paragraphs of Sec. 14 of R.A. No. 6770, valid and
constitutional?
RULING: The first paragraph is declared INEFFECTIVE until the Court adopts the
same as part of the rules of procedure through an administrative circular duly issued;
The second paragraph is declared UNCONSTITUTIONAL AND INVALID.
The Court rules that when Congress passed the first paragraph of Section 14, RA
6770 and, in so doing, took away from the courts their power to issue a TRO and/or
WPI to enjoin an investigation conducted by the Ombudsman, it encroached upon this
Courts constitutional rule-making authority. Through this provision, Congress
interfered with a provisional remedy that was created by this Court under its duly
promulgated rules of procedure, which utility is both integral and inherent to every
courts exercise of judicial power. Without the Courts consent to the proscription, as
may be manifested by an adoption of the same as part of the rules of procedure
through an administrative circular issued therefor, there thus, stands to be a violation
of the separation of powers principle.
In addition, it should be pointed out that the breach of Congress in prohibiting
provisional injunctions, such as in the first paragraph of Section 14, RA 6770, does
not only undermine the constitutional allocation of powers; it also practically dilutes a
courts ability to carry out its functions. This is so since a particular case can easily be
mooted by supervening events if no provisional injunctive relief is extended while the
court is hearing the same.
Since the second paragraph of Section 14, RA 6770 limits the remedy against
decision or findings of the Ombudsman to a Rule 45 appeal and thus similar to the
fourth paragraph of Section 27, RA 6770- attempts to effectively increase the
Supreme Courts appellate jurisdiction without its advice and concurrence, it is
therefore concluded that the former provision is also unconstitutional and perforce,
invalid. Contrary to the Ombudsmans posturing, Fabian should squarely apply since
the above-stated Ombudsman Act provisions are in part materia in that they cover
the same specific or particular subject matter, that is, the manner of judicial review
over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly determinative
of the existence of the CAs subject matter jurisdiction over the main CA-G.R. SP No.
139453 petition, including all subsequent proceedings relative thereto, as the
Ombudsman herself has developed, the Court deems it proper to resolve this issue
ex mero motu (on its own motion):
Constitutional questions, not raised in the regular and orderly procedure in the trial
are ordinarily rejected unless the jurisdiction of the court below or that of the appellate
court is involved in which case it may be raised at any time or on the courts own
motion. The Court ex mero motu may take cognizance of lack of jurisdiction at any
point in the case where that fact is developed. The court has a clearly recognized
right to determine its own jurisdiction in any proceeding.
Evardone v. Comelec, 204 SCRA 464, 472, December 2, 1991
Petitioner: Felipe Evardone
Respondents: Comelec, Alexander Apelado, Victorino Aclana and Noel Nival
Ponente: Padilla
Facts: Felipe Evardone the mayor of Sulat, Eastern Samar, having been elected to
the position during the 1988 local elections. He assumed office immediately
after proclamation. In 1990, Alexander R. Apelado, Victozino E. Aclan and
Noel A. Nival filed a petition for the recall of Evardone with the Office of the
Local Election Registrar, Municipality of Sulat. The Comelec issued a
Resolution approving the recommendation of Election Registrar Vedasto
Sumbilla to hold the signing of petition for recall against Evardone.
Evardone filed a petition for prohibition with urgent prayer of
restraining order and/or writ of preliminary injunction. Later, in an en banc
resolution, the Comelec nullified the signing process for being violative of the
TRO of the court. Hence, this present petition.
Issue 1: WON Resolution No. 2272 promulgated by the COMELEC by virtue
of its powers under the Constitution and BP 337 (Local Government Code)
was valid.
Held: Yes
Ratio: Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed
Batas Pambansa Blg. 337 in favor of one to be enacted by Congress. Since
there was, during the period material to this case, no local government code
enacted by Congress after the effectivity of the 1987 Constitution nor any law
for that matter on the subject of recall of elected government officials,
Evardone contends that there is no basis for COMELEC Resolution No. 2272
and that the recall proceedings in the case at bar is premature.
The COMELEC avers that the constitutional provision does not refer
only to a local government code which is in futurum but also in esse. It merely
sets forth the guidelines which Congress will consider in amending the
provisions of the present LGC. Pending the enactment of the amendatory law,
the existing Local Government Code remains operative.
Article XVIII, Section 3 of the 1987 Constitution express provides that
all existing laws not inconsistent with the 1987 Constitution shall remain
operative, until amended, repealed or revoked. Republic Act No. 7160
providing for the Local Government Code of 1991, approved by the President
on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec.
534, Title Four of said Act. But the Local Government Code of 1991 will take
effect only on 1 January 1992 and therefore the old Local Government Code
(B.P. Blg. 337) is still the law applicable to the present case. Prior to the
enactment of the new Local Government Code, the effectiveness of B.P. Blg.
337 was expressly recognized in the proceedings of the 1986 Constitutional
Commission. We therefore rule that Resolution No. 2272 promulgated by the
COMELEC is valid and constitutional. Consequently, the COMELEC had the
authority to approve the petition for recall and set the date for the signing of
said petition.
Issue 2: WON the TRO issued by this Court rendered nugatory the signing
process of the petition for recall held pursuant to Resolution No. 2272.
Held: No
Ratio: In the present case, the records show that Evardone knew of the Notice of
Recall filed by Apelado, on or about 21 February 1990 as evidenced by the
Registry Return Receipt; yet, he was not vigilant in following up and
determining the outcome of such notice. Evardone alleges that it was only on
or about 3 July 1990 that he came to know about the Resolution of the
COMELEC setting the signing of the petition for recall on 14 July 1990. But
despite his urgent prayer for the issuance of a TRO, Evardone filed the petition
for prohibition only on 10 July 1990. Indeed, this Court issued a TRO on 12
July 1990 but the signing of the petition for recall took place just the same on
the scheduled date through no fault of the COMELEC and Apelado. The
signing process was undertaken by the constituents of the Municipality of
Sulat and its Election Registrar in good faith and without knowledge of the
TRO earlier issued by this Court. As attested by Election Registrar Sumbilla,
about 2,050 of the 6,090 registered voters of Sulat, Eastern Samar or about
34% signed the petition for recall. As held in Parades vs. Executive Secretary
there is no turning back the
clock.
The right to recall is complementary to the right to elect or appoint. It
is included in the right of suffrage. It is based on the theory that the electorate
must maintain a direct and elastic control over public functionaries. It is also
predicated upon the idea that a public office is "burdened" with public interests
and that the representatives of the people holding public offices are simply
agents or servants of the people with definite powers and specific duties to
perform and to follow if they wish to remain in their respective offices. Whether
or not the electorate of Sulat has lost confidence in the incumbent mayor is a
political question. It belongs to the realm of politics where only the people are
the judge. "Loss of confidence is the formal withdrawal by an electorate of
their trust in a person's ability to discharge his office previously bestowed on
him by the same electorate. The constituents have made a judgment and their
will to recall Evardone has already been ascertained and must be afforded the
highest respect. Thus, the signing process held last 14 July 1990 for the recall
of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.
However, recall at this time is no longer possible because of the
limitation provided in Sec. 55 (2) of B.P. Blg, 337. The Constitution has
mandated a synchronized national and local election prior to 30 June 1992, or
more specifically, as provided for in Article XVIII, Sec. 5 on the second Monday
 of May, 1992. Thus, to hold an election on recall approximately seven (7)
months before the regular local election will be violative of the above
provisions of the applicable Local Government Code
REYNALDO O. MALONZO, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS and THE LIGA NG MGA
BARANGAY (Caloocan Chapter) and ALEX L. DAVID, CONRADO G. CRUZ,
TRINIDAD REPUNO, GLORIA M. CRUZ, MIRALI M. DURR, FERMIN JIMENEZ,
AURELIO BILUAN, ROGELIO SARAZA, HELENE VALBUENA, and HIGINO
RULLEPA, respondents.
G.R. No. 127066 March 11, 1997
FACTS: Malonzo was elected as Mayor of Caloocan City in the elections held on May
8, 1995. However, barely a year after his election, on July 7, 1996, 1,057 Punong
Barangays, Sangguniang Barangay members and SK chairmen constituting a majority
of the Preparatory Recall Assembly of Caloocan passed Preparatory Recall Assembly
Resolution No. 01-96, expressing loss of confidence in Mayor Malonzo, and calling for
the initiation of recall proceedings against him.
The said resolution, along with other relevant documents, was filed by the PRA with the
COMELEC. Malonzo filed a petition with COMELEC challenging the validity of recall
process. The COMELEC, however, rejected the petition. It then declared the recall
proceedings to be in order.
Malonzo then filed a Petition for Certiorari With Prayer For Temporary Restraining
Order and Application for Writ of Preliminary Injunction", assailing the COMELEC's
resolution as having been issued with grave abuse of discretion. Malonzo challenged
the recall proceedings, essentially claiming that the notices for the meeting of the PRA
were not properly served. Moreover, he argued that it was the Liga ng mga Barangay
and not the PRA which initiated the recall, contrary to the requirements under the Local
Government Code. He also claimed that the proceeding followed for adopting the recall
resolution was defective and therefore void.
ISSUE: Whether or not the recall proceeding was valid.
HELD: Yes. The recall process was valid. The notices were propery served to the
members of the PRA. Moreover, it was the PRA which initiated the recall and not the
Liga ng mga Barangay. The resolution was properly adopted in a meeting conducted
by the PRA.
RATIO
I. Service of the notices
The COMELEC adequately ruled on the issue of the service of notices to
the members of the PRA. In response to petitioner's request for a
technical examination of the recall documents, the COMELEC directed
its Election Records and Statistics Department (ERSD) to resolve the
matter of notices sent to the Preparatory Recall Assembly members. The
ERSD in turn performed its task and reported its findings to the
COMELEC.
The ERSD and the COMELEC found that the notices were properly
served.
At the time the PRA was convened, there were 1, 699 barangay officials.
1, 927 notices were sent. Service was done through personal delivery or
by mail. Most of these were properly received while there were some who
refused to accept the notice. These were all duly noted. The COMELEC
found no irregularities in the service of the notices.
Morever, that Alex David, president of the Liga ng mga Barangay, sent
the notices is of no moment. As a member of the PRA, he could validly
exercise the prerogatives attached to his membership.
Needless to state, the issue of propriety of the notices sent to the PRA
members is factual in nature, and the determination of the same is
therefore a function of the COMELEC. In the absence of patent error, or
serious inconsistencies in the findings, the Court should not disturb the
same. The factual findings of the COMELEC, based on its own
assessments and duly supported by gathered evidence, are conclusive
upon the court, more so, in the absence of a substantiated attack on the
validity of the same.
II. Validity of the recall proceedings
Malonzos insistence, that the initiation of the recall proceedings was
infirm since it was convened by the Liga ng mga Barangays, is misplaced.
The Liga ng mga Barangay is undoubtedly an entity distinct from the
Preparatory Recall Assembly. It just so happens that the personalities
representing the barangays in the Liga are the very members of the
Preparatory Recall Assembly, the majority of whom met on July 7, 1996,
and voted in favor of the resolution calling for the recall of Mayor Malonzo,
after deliberation reported in the record, in accordance with the existing
law. Thus, the Punong Barangays and Sangguniang Barangay members
convened and voted as members of the Preparatory Recall Assembly of
the City of Caloocan, and not as members of the Liga ng mga Barangay.
The recall proceedings, therefore, cannot be denied merit on this ground.
The law on recall did not prescribe an elaborate proceeding. Neither did
it demand a specific procedure. What is fundamental is compliance with
the provision that there should be a session called for the purpose of
initiating recall proceedings, attended by a majority of all the members of
the preparatory recall assembly, in a public place and that the resolution
resulting from such assembly be adopted by a majority of all the PRA
members
CLAUDIO v. COMELEC
G.R. 140560. May 4, 2000
FACTS
Jovito Claudio was the duly elected mayor of Pasay City during the 11 May
1998 elections. He assumed office on 1 July 1998.
On 19 May 1999, an ad hoc committee was formed for the purpose of
convening a Preparatory Recall Assembly (PRA).
 On 29 May 1999, majority of the members of the PRA adopted a Resolution
to Initiate the Recall of Mayor Jovito Claudio for Loss of Confidence.
On 2 July 1999, the petition for recall was formally submitted to the Office of
the Election Officer. Copies of the petition were posted in public places in
Pasay City and the authenticity of the signatures therein was verified by the
election officer for Pasay City.
The petition was opposed on several grounds. Principally, that the convening
of the PRA took place within the one-year prohibited period under Sec. 74,
LGC which provides:
Limitations on Recall. - (a) Any elective local official may be the
subject of a recall election only once during his term of office for loss
of confidence.
(b) No recall shall take place within one (1) year from the date of the
official's assumption to office or one (1) year immediately preceding
a regular local election. xxxx
The COMELEC granted the petition. It ruled that the petition did not violate
the one-year ban because the petition was filed on 2 July 1999, one
day after Claudios assumption of office.
ISSUES
1. WoN the word recall in Sec. 74(b), LGC covers a process which includes the
convening of the Preparatory Recall Assembly and its approval of the recall
resolution.
2. WoN the term "regular local election" in the last clause of Sec. 74(b), LGC includes
the election period for that regular election or simply the date of such election.
HELD/RATIO
1. The word recall in Sec. 74(b), LGC refers to the to the election itself by means of
which voters decided whether they shall retain their local official or elect his
replacement.
Recall is a process which involves the following steps:
(1) the convening of the preparatory assembly or gathering of the
signatures of at least 25% registered voters in the LGU;
(2) the filing of the recall resolution or petition with the COMELEC;
(3) the verification of the resolution or petition;
(4) fixing of the date of the recall election; and
(5) holding of the election.
That the word recall used in Sec. 74(b), LGC, refers to the recall election itself is
due to the following reasons:
1(1) that no recall shall take place within one year from the date of assumption of office of the official
concerned; and (2) that no recall shall take place within one year immediately preceding a regular local
election.
(1) Sec. 69, LGC provides that the power of recall shall be exercised by
the registered voters of the LGU to which the local elective official
belongs. It is clear that the power of recall referred to in Sec. 69 is
the power to retain/replace officials and not the power to initiate
recall proceedings. Thus, the limitations under Sec. 74 (Limitations
on Recall) apply only to the recall elections.
In Garcia v. COMELEC, the delegation of the power to initiate recall
proceedings from the electorate to the PRAs was questioned. The
Supreme Court held that what the Constitution gave to the people is
the power to recall and not the power to initiate the recall
proceedings. The holding of the PRA is not the recall itself.
(2) That the word recall refers to the recall election is consistent with the
purposes1 of the limitations on recall.
The purpose of the first limitation is to provide a reasonable basis for
judging the performance of the official (Angobung v. COMELEC).
This judgment is not given during the preliminary proceedings (such
as the convening of the PRA) but through the vote during the recall
election itself.
(3) That the word recall refers to the recall election is to uphold the
constitutional rights of speech and freedom of assembly of PRA
members.
To hold that limitation includes the formation of opinion through
public discussions on the matter of recall of an official is to curtail
these constitutional rights.
2. The term regular elections does not include the election period.
To construe the word regular elections as including the election period would
emasculate the right of the people to exercise the power of recall.
In Paras v. COMELEC, the Supreme Court held that the limitations on Sec. 74 (a)
and Sec. 74 (b) would mean that a local elective official may be subject only to recall
during the second year of his/her term (in this case, from 1 July 1999 to mid-May
2000)
If the regular elections mentioned in Sec. 74(b) would include the election period,
which commences 90 days from the date of the election and extends to 30 days
thereafter, the period during which the power of recall may be exercised will be
reduced even more. (in this case, from 1 July 1999 to mid-February 2000)
HELD/RATIO
Petition DISMISSED.

Mendez vs CSC December 23, 1991 || Paras
Facts: On June 7, 1984, the Acting Register of Deeds of Quezon City Vicente Colovan
filed an administrative complaint against petitioner for gross misconduct and
dishonesty, allegedly for having torn off a portion of a TCT from the registry book of
Quezon City and for having pocketed it. After three months of investigation, then QC
Mayor Rodriguez dismissed the said complaint for insufficiency of evidence. Upon
appeal to the Merit Systems Protection Board (MSPB), the decision was reversed and
petitioner Mendez was found guilty.
The MSPBs decision was affimed by the CSC.
Mendez moved for reconsideration, assailing the reversal of the city mayors decision
on the ground that Colovan is not an aggrieved party or party adversely affected by
the decision allowed to file an appeal. The CSC denied said MR ruling that there is
nothing in law which precludes an appeal from the decision of the disciplining
authorities to determine whether the decision rendered is supported by the facts on
record and the law.
Issue: WON Colovan is a party allowed by law to file an appeal
Held//Ratio: No. The right to appeal is merely a statutory privilege and may be
exercised only in the manner and in accordance with the provision of law. A cursory
reading of The Philippine Civil Service Law (PD 807) shows that said law does not
contemplate a review of decisions exoneration officers or employees from
administrative charges. Section 37 (a)
of PD 807, read in conjunction with Section 39 (a) of PD 805, would give rise to the
interpretation that The phrase "party adversely affected by the decision" refers to the
government employee against whom the administrative case is filed for the purpose of
disciplinary action which may take the form of suspension, demotion in rank or salary,
transfer, removal or dismissal from office. In the instant case, Coloyan who filed the
appeal cannot be considered an aggrieved party because he is not the respondent in
the administrative case below. By inference or implication, the remedy of appeal may
be availed of only in a case where the respondent is found guilty of the charges filed
against him. But when the respondent is exonerated of said charges, as in this case,
there is no occasion for appeal.
The Commission shall decide upon appeal all administrative disciplinary cases
involving the imposition of a penalty of suspension for more than thirty days, or fine in
an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal
or dismissal from office. Appeals, where allowable, shall be made by the party
adversely affected by the decision
. argued by Chang), Acting Secretary Macalingag, as Secretary of Finance, is
Macalingag and Carlos v. Chang (1992)
Facts:
Pursuant to an administrative charge against him for dishonesty, neglect of
duty, and act prejudicial to the best interest of the service (for illegal
disbursements and anomalous handling of public funds), an Order of
Preventive suspension was issued against Roberto Chang, then the acting
municipal treasurer of Makati.
Said Order was signed by Lorinda Carlos, the Executive director of the
Bureau of Local Government, and Victor Macalincag, Undersecretary of
Finance, who was then the acting Secretary.
Chang filed a complaint for prohibition with preliminary injunction with the
lower court.
The trial court found in that in order for preventive suspension to take effect,
there are two steps involved:
1) service of the copy the order on the respondent; and
2) designation of his replacement.
The order of preventive suspension was held to have been incomplete and
without effect since an acting municipal treasurer had yet to be appointed to
replace Chang.
Issue: WoN the Secretary of Finance has jurisdiction to issue an Order of Preventive
Suspension against the acting municipal treasurer of Makati, Metro Manila even if an
acting municipal treasurer had yet to be appointed to replace Chang. YES.
HELD:
Preventive suspension is governed by Sec. 41 of P.D. 807 or the Civil
Service Law, which does not require a replacement to be designated for the
Order to take effect.
BP 337 (the LGC in effect at the time) provides for the automatic assumption
of the assistant municipal treasurer or next in rank officer in case of
suspension of the municipal treasurer.
There can be no question that the Order of Preventive Suspension became
effective upon respondent Changs receipt thereof.
Chang argues that EO 392, which gave rise to the creation of the
Metropolitan Manila Authority, vested in the President of the Philippines the
power to appoint the municipal treasurer, and thus only the President may
suspend or remove him.
However, Section 8 of EO 392 provides that the appointments made by the
President of the Philippines shall be subject to the Civil Service Law, rules
and regulations.
Moreover, the Office of the Municipal Treasurer unquestionably falls under
the Department of Finance.
Hence, the Secretary of Finance is the proper disciplining authority to issue
the preventive suspension order.
Even assuming that the power to appoint includes the power to discipline (as
the alter ego of the President.
It is therefore within his authority to preventively suspend Chang.
GARCIA vs. PAJARO
G.R. 141149 July 5, 2002 Art. III
FACTS:
Sebastian Garcia married, has been employee at the City Treasurers Office in
Dagupan City since June 15, 1974 as Revenue Collector appointed by then City
Mayor Cipriano Manaois. He was ordered suspended by City Treasurer Juanito
Pajaro from June 1, 1990 to March 15, 1992 and directed the withholding of his salary
because of the Formal Charge filed against him. Contrary to the charges of the City
Treasurer, he has been doing his duties and obligations because he did not honor the
suspension arguing that the City Treasurer acted as the complainant, investigator and
judge and there was no complaint against him from the Office of the City Mayor.
Petitioner was asking for damages because of the suspension order which caused
him sleepless nights and financial problems. In the case at bar, petitioners filed a
motion for reconsideration of the CA decision. On the other hand, evidence for
respondent showed that the petitioner had received unsatisfactory ratings in his
performance a formal charge was filed against him and was received on June 1,
1990. As a matter of procedure, because the charge is a major offense by civil service
laws, he needs to be preventively suspended for ninety (90) days. An investigation
was scheduled and a subpoena was issued to petitioner to appear and testify on
August 15, 1990 duly received by him on August 1, 1990. Petitioner did not answer
and refused to honor the subpoena to submit himself for investigation. The Formal
Charge then submitted the result of their findings to the Department of Finance for
decision promulgated on August 1, 1991. The matter of preventive suspension of Mr.
Garcia was submitted to the Regional Director, Bureau of Local Government Finance
which was favorably approved by the Regional Director. Petitioners claim that his
benefits were unduly withheld from him is not true because the law states when you
are charged and preventively suspended, the salary could not be collected
Respondent was not aware that petitioner reported for work during the period of his
preventive suspension, but that his co-employees testified that petitioner timed-in but
did not make time- outs.
The CA affirmed the RTC decision which held that private respondent was vested
with legal power and authority to institute disciplinary action against subordinate
officers and employees and that the requisites of administrative due process had
been fully observed.
ISSUES:
1. W/N the city treasurer of Dagupan can discipline petitioner
2. W/N petitioners right to due process was violated
HELD:
1. Yes.
Under the old and the present Local Government Codes, appointive officers and
employees of local government units are covered by the Civil Service Law; and such
1 Prepared by: Roman Cyril A. Panganiban
(case no. 036)
rules, regulations and other issuances duly promulgated pursuant thereto unless
otherwise specified. Moreover, the investigation and the adjudication of administrative
complaints against appointive local officials and employees, as well as their
suspension and removal, shall be in accordance with the Civil Service Law and rules
and other pertinent laws. The power to discipline is specifically granted provided in
Section 47 of the Administrative Code of 1987to heads of departments, agencies and
instrumentalities, provinces and cities. On the other hand, the power to commence
administrative proceedings against a subordinate officer or employee is granted by
Section 34 of the Omnibus Rules Implementing Book V of the said Administrative
Code to the secretary of a department, the head of office of equivalent rank, the head
of a local government unit, the chief of an agency, the regional director or a person
with a sworn written complaint.
2. No.
The essence of due process in an administrative proceeding is the opportunity to
explain ones side, whether written or verbal. The constitutional mandate is satisfied
when a petitioner complaining about an action or a ruling is granted an opportunity to
seek reconsideration. As long as the parties are given the opportunity to explain their
side, the requirements of due process are satisfactorily complied with
Javellana v. DILG
FACTS:
1. Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros
Occidental.
2. On October 5, 1989, City Engineer Ernesto C. Divinagracia filed Administrative
Case against Javellana and alleged:
o that Javellana, an incumbent member of the City Council or Sanggunian
Panglungsod of Bago City, and a lawyer by profession, has continuously
engaged in the practice of law without securing authority for that
purpose from the Regional Director, Department of Local Government
(DLG), as required by DLG Memorandum Circular No. 80-38.
o that on July 8, 1989, Javellana, as counsel for Antonio Javiero and
Rolando Catapang, filed a case against City Engineer Ernesto C.
Divinagracia of Bago City for "Illegal Dismissal and Reinstatement with
Damages" putting him in public ridicule;
o that Javellana also appeared as counsel in several criminal and civil
cases in the city.
3. Javellana filed a MTD. He argues that LGC 90 and DLG Memorandum Circulars
Nos. 80-38 and 90-81 are unconstitutional because the Supreme Court has the
sole and exclusive authority to regulate the practice of law. This MTD was denied.
4. Memoranda at issue:
o Memorandum Circular No. 80-38: "members of local legislative bodies,
other than the provincial governors or the mayors, do not keep regular
office hours." They may, therefore, be allowed to practice their
 professions provided that in so doing an authority . . . first be secured 2. The complaint for illegal dismissal filed by Javiero and Catapang against City
from the Regional Directors Engineer Divinagracia is in effect a complaint against the City Government of Bago
o Memorandum Circular No. 90-81: "In addition to acts and omission of City, their real employer, of which Javellana is a councilman. Hence, judgment
public officials . . . now prescribed in the Constitution and existing laws, against City Engineer Divinagracia would actually be a judgment against the
the following shall constitute prohibited acts and transactions of any City Government.
public officials . . . and are hereby declared to be unlawful: . . . (b) Public 3. Javellanas contention that LGC 90 of the Local Government Code of 1991 and
Officials . . . during their incumbency shall not: (1) . . . accept employment DLG Memorandum Circular No. 90-81 violate Article VIII, Section 5 of the
as officer, employee, consultant, counsel, broker, agent, trustee or Constitution is completely off tangent.
nominee in any private enterprise regulated, supervised or licensed by 4. Neither the statute nor the circular trenches upon the Supreme Court's power and
their office unless expressly allowed by law; (2) Engage in the private authority to prescribe rules on the practice of law.
practice of their profession unless authorized by the Constitution or law, 5. The Local Government Code and DLG Memorandum Circular No. 90-81 simply
provided that such practice will not conflict or tend to conflict with their prescribe rules of conduct for public officials to avoid conflicts of interest between
official functions: . . .That no conflict of interests between the practice of the discharge of their public duties and the private practice of their profession, in
profession or engagement in private employment and the official duties those instances where the law allows it.
of the concerned official shall arise thereby; 6. LGC 90 does not discriminate against lawyers and doctors. It applies to all
5. 5 months later, , the LGC was promulgated; it provided in Sec. 90 (b) that: provincial and municipal officials in the professions or engaged in any occupation.
Sanggunian members may practice their professions, engage in any occupation, 7. Section 90 explicitly provides that sanggunian members "may practice their
or teach in schools except during session hours: Provided, That sanggunian professions, engage in any occupation, or teach in schools expect during session
members who are members of the Bar shall not: hours."
1. Appear as counsel before any court in any civil case wherein a local 8. If there are some prohibitions that apply particularly to lawyers, it is because of all
government unit or any office, agency, or instrumentality of the the professions, the practice of law is more likely than others to relate to, or affect,
government is the adverse party; the area of public service.
2. Appear as counsel in any criminal case wherein an officer or employee of
the national or local government is accused of an offense committed in
relation to his office;
3. Collect any fee for their appearance in administrative proceedings
involving the local government unit of which he is an official; and
4. Use property and personnel of the Government except when the
sanggunian member concerned is defending the interest of the
Government.
6. Javellana filed a petition for review on certiorari. He argues
o Only the SC has the sole authority to regulate the practice of law; and
o They constitute class legislation. It is discriminatory against the legal and
medical professions because only sanggunian members who are lawyers
and doctors are restricted in the exercise of their profession, while
dentists, engineers, architects, teachers, opticians, morticians and others
are not so restricted.

ISSUE: Whether or not Javellana is administratively liable for practicing law while being
a councilor.

HELD: YES. By serving as counsel for the complaining employees and assisting them
to prosecute their claims against City Engineer Divinagracia, Javellana violated
Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) prohibiting
a government official from engaging in the private practice of his profession, if such
practice would represent interests adverse to the government. Petition dismissed.

RATIO:
1. Complaints against public officers and employees relating or incidental to the
performance of their duties are necessarily impressed with public interest for by
express constitutional mandate, a public office is a public trust.