LOCGOV 78-116 MISSING 79, 86, 88, 101 and 108

8/10/2019 LOCGOV 78-116 MISSING 79, 86, 88, 101 and 108

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078 Sison v People

TOPIC: Local Bids and Awards Committee

PONENTE: Justice Corona

AUTHOR: Dann M.

NOTES/QUICKIE FACTS:

FACTS

1. Petitioner Rolando E. Sison was the municipal mayor of Calintaan, Occidental Mindoro, a fourth-clasmunicipality,

1from July 1, 1992 to June

230, 1995, while Rigoberto de Jesus was the municipal treasurer.

2. On July 18, 1994, state auditor Elsa E. Pajayon conducted a post-audit investigation which revealed that durinpetitioners incumbency, no public bidding was conducted for the purchase of a Toyota Land Cruiser, 119 bags oFortune cement, an electric generator set, certain construction materials, two Desert Dueler tires, and a compute

and its accessories. Pajayon also found out that there were irregularities in the documents supporting thacquisitions.

3. Thus, on June 4, 1998, petitioner and de Jesus were indicted before the Sandiganbayan in seven separatInformations

3for seven counts of violation of Section 3(e) of Republic Act (RA) 3019.

4

4. On June 24, 1999, petitioner pleaded not guilty to all the Informations. Accused de Jesus has remained at large.5. Trial on the merits ensued. Pajayon was the lone witness for the prosecution.6. When it was the turn of the defense to present evidence, petitioner was called to the witness stand where h

admitted that indeed, no public bidding was conducted insofar as the purchases he was being accused of werconcerned. When asked how the purchases were made, he answered that they were done through personacanvass. When prodded why personal canvass was the method used, he retorted that no public bidding could beconducted because all the dealers of the items were based in Manila. It was therefore useless to invite biddersince nobody would bid anyway. The defense thereafter rested its case and formally offered its exhibits.

7. On November 14, 2005, the Sandiganbayan found petitioner guilty as charged.5

8. Petitioner appealed6

to this Court, praying for an acquittal because his guilt was allegedly not proven beyonreasonable doubt.

ISSUE: Whether or not personal canvass is validly made by the petitioner

HELD: No, the requirement were not met.

RATIO:

1. RA 71607explicitly provides that, as a rule, "acquisitions of supplies by local government units shall be throug

competitive bidding."8By way of exception, no bidding is required in the following instances:

(1) personal canvass of responsible merchants;(2) emergency purchase;

(3) negotiated purchase;(4) direct purchase from manufacturers or exclusive distributors and(5) purchase from other government entities.

9

2. Since personal canvass (the method availed of by petitioner) is an exception to the rule requiring public biddingSection 367 of RA 7160 provides for limitations on the resort to this mode of procurement:

Sec. 367. Procurement through Personal Canvass.Upon approval by the Committee on Awardsprocurement of supplies may be affected after personal canvass of at least three (3) responsible supplierin the locality by a committee of three (3) composed of the local general services officer or the municipaor barangay treasurer, as the case may be, the local accountant, and the head of office or department fowhose use the supplies are being procured. The award shallbe decided by the Committee on Awards.

Purchases under this Section shallnot exceed the amounts specified hereunder for all items in any one (1) mont

for each local government unit:xxx

Municipalities:

First Class First Class One hundred fifty thousand pesos (P150,000.00)

Second and Third Class Forty thousand pesos (P40,000.00)

Fourth Class and Below Twenty thousand pesos (P20,000.00) (emphasis supplied)

3. In relation thereto, Section 364 of RA 7160 mandates:
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Section 364. The Committee on Awards.There shallbe in every province, city or municipality a Committee oAwards to decide the winning bids and questions of awards on procurement and disposal of property.

The Committee on Awards shallbe composed of the local chief executive as chairman, the local treasurer, thlocal accountant, the local budget officer, the local general services officer, and the head of office or departmenfor whose use the supplies are being procured, as members. In case a head of office or department would sin a dual capacity a member of the sanggunian elected from among its members shall sit as a memberThe Committee on Awards at the barangaylevel shall be the sangguniang barangay. No national official shall sas member of the Committee on Awards. (emphasis supplied)

4. Note that the law repeatedly uses the word "shall" to emphasize the mandatory nature of its provisions.5. Insofar as the purchase of the Toyota Land Cruiser

11is concerned, the Sandiganbayan found that the persona

canvass was effected solely by petitioner, without the participation of the municipal accountant and petitioners coaccused de Jesus, the municipal treasurer. Worse, there was no showing that that the award was decided by theCommittee on Awards. Only an abstract of canvass supported the award, signed by petitioner and de Jesuswithout the required signatures of the municipal accountant and budget officer.

6. To reiterate, RA 7160 requires that where the head of the office or department requesting the requisition sits in dual capacity, the participation of a Sanggunianmember (elected from among the members of the Sanggunian) inecessary.

7. Petitioner clearly disregarded this requirement because, in all the purchases made, he signed in a dual capacityas chairman and member (representing the head of office for whose use the supplies were being procured). Thais strictly prohibited.

8. None of the regular members of the Committee on Awards may sit in a dual capacity.

9. Where any of the regular members is the requisitioning party, a special member from the Sanggunianis required.10. The prohibition is meant to check or prevent conflict of interest as well as to protect the use of the procuremenprocess and the public funds for irregular or unlawful purchases.

11. The same flaws attended the procurement of 119 bags of Fortune cement,12

electric power generatoset,

13various construction materials,

14two Desert Dueler tires

15and a computer and its accessories.

16

12. With the kind of items purchased by petitioner, he also clearly spent more than P20,000 or beyond the thresholamount per month allowed by Section 367 of RA 7160 as far as purchases through personal canvass by fourthclass municipalities (like Calintaan) are concerned.

WHEREFORE, the petition is hereby DENIED.
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080 CITIZEN J. ANTONIO M. CARPIO, petitioner, vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF

LOCAL GOVERNMENTS, THE SECRETARY OF NATIONAL

DEFENSE and THE NATIONAL TREASURER, respondents.

[G.R. No. 96409 February 14, 1992]TOPIC: People's Law Enforcement Board, Sec. 43, R.A. 6975

PONENTE: PARAS, J

AUTHOR: Ernest

FACTS:

1. Congress passed Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICUNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER

PURPOSES" as the consolidated version of House Bill No. 23614 and Senate Bill No. 463. 2. Following the said Act's approval by President Corazon C. Aquino on December 13, 1990, it was published on December 17

1990.

3. Petitioner Antonio Carpio as citizen, taxpayer and member of the Philippine Bar, filed this petition, questioning thconstitutionality of RA 6975 with a prayer for TRO.

MAIN ISSUE: Whether or not RA 6975 is Unconstitutional

HELD: NO. It is Constitutional

Petitioners Argument # 1: RA 6975 emasculated the National Police Commission (NAPOLCOM) by limiting its powe

"to administrativecontrol" over the Philippine National Police (PNP), thus, "control" remained with the Department Secretary unde

whom both the National Police Commission and the PNP were placed.

HELD: Contention without merit.

The President has control of all executive departments, bureaus, and offices.NAPOLCOM is under the Office of the PresidenThis presidential power of control over the executive branch of government extends over all executive officers from

Cabinet Secretary to the lowliest clerk. In the landmark case of Mondano vs. Silvosa, the power of control means thepower o

the President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and t

substitute the judgment of the former with that of the latter. It is said to be at the very heart of the meaning of Chief Executive.

"Doctrine of Qualified Political Agency".The President cannot be expected to exercise his control powers all at the same time and in

person, he will have to delegate some of them to his Cabinet members. Under this doctrine, which recognizes the establishment of

single executive, "all executive and administrative organizations are adjuncts of the Executive Department, the heads of the variou

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 on the exigencies of the situation demand that he act personally, the multifarious executive an

administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of th

Secretaries of such departments, performed and promulgated in the regular course of business, unless disapproved or reprobated b

the Chief Executive presumptively the acts of the Chief Executive." "

In Short, the President's power of control is directly exercised by him over the members of the Cabinet who, in turn, and by h

authority, control the bureaus and other offices under their respective jurisdictions in the executive department."

The placing of NAPOLCOM and PNP under the reorganized DILG is merely an administrative realignment that would bolster

system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and publi

safety agencies.

Petitioners Argument # 2: (Topic in the syllabus) Petitioner further asserts that in manifest derogation of the power of control of th

NAPOLCOM over the PNP, RA 6975 vested the power to choose the PNP Provincial Director and the Chiefs of Police in th

Governors and Mayors, respectively; the power of "operational supervision and control" over police units in city and municipa

mayors; in the Civil Service Commission, participation in appointments to the positions of Senior Superintendent to Deputy Director

General as well as the administration of qualifying entrance examinations; disciplinary powers over PNP members in the "People

Law Enforcement Boards" and in city and municipal mayors.

HELD: Contention without merit

Full control remains with the National Police Commission. There is no usurpation of the power of control of the NAPOLCOM i

is clear that the local executives are only acting as representatives of the NAPOLCOM. . . . As such deputies, they are answerabl

to the NAPOLCOM for their actions in the exercise of their functions under that section. Thus, unless countermanded by the

NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM." It is significant to note that the local officials, a

NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the genera

qualifications for appointment to the PNP) to be recommended by PNP officials. The same holding is true with respect to th

contention on the operational supervision and control exercised by the local officials. Those officials would simply be acting a

representatives of the Commission.


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AS to PLEBs: The grant of disciplinary powers over PNP members to the "People's Law Enforcement Boards" (or the PLEB

and city and municipal mayors is also not in derogation of the commission's power of control over the PNP. Pursuant to th

Act, the Commission exercises appellate jurisdiction, thru the regional appellate boards, over decisions of both the PLEB an

the said mayors. This is so under Section 20(c). Furthermore, it is the Commission which shall issue the implementing

guidelines and procedures to be adopted by the PLEB for in the conduct of its hearings, and it may assign NAPOLCOM hearing

officers to act as legal consultants of the PLEBs (Section 43-d4, d5).

As a disciplinary board primarily created to hear and decide citizen's complaints against erring officers and members of the PNP, th

establishment of PLEBs in every city, and municipality would all the more help professionalize the police force.

Petitioners Argument #3: Sec. 12 of the act constitutes an "encroachment upon, interference with, and an abdication by th

President of, executive control and commander-in-chief powers."

Sec. 12. Relationship of the Department with the Department of National Defense. During a period of twenty- four (24

months from the effectivity of this Act, the Armed Forces of the Philippines (AFP) shall continue its present role of preservin

the internal and external security of the State:Provided, that said period may be extended by the President, if he finds

justifiable, for another period not exceeding twenty-four (24) months, after which, the Department shall automatically tak

over from the AFP the primary role of preserving internal security, leaving to the AFP its primary role of preserving externa

security.

HELD: NO.

Section 12 does not constitute abdication of commander-in-chief powers. It simply provides for the transition period or process durin

which the national police would gradually assume the civilian function of safeguarding the internal security of the State. Under thiinstance, the President, to repeat, abdicates nothing of his war powers. It would bear to here state, in reiteration of the preponderan

view, that the President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under th

Commander-in-Chief provision "represent only a part of the organic duties imposed upon him. All his other functions are clearly civi

in nature." 31His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle tha

"civilian authority is, at all times, supreme over the military." (Article II, Section 3, 1987 Constitution)

DOCTRINES:

CONSTI Article XVI, Section 6:The State shall establish and maintain one police force, which stall be national in scope and civilian in character, to b

administered and controlled by a national police commission. The authority of local executives over the police units in thei

jurisdiction shall be provided by law.

DISPOSITIVE:WHEREFORE, having in view all of the foregoing holdings, the instant petition is hereby DISMISSED for lack omerit.SO ORDERED.


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[81] SPO1 LEONITO ACUZAR,Petitioner,- versus -APRONIANO JOROLAN and HON.

EDUARDO A APRESA, PEOPLES LAW

ENFORCEENT BOARD (PLEB) Chairman,

Respondents.

TOPIC: Local Special BodiesPONENTE: Villarama, Jr. J.

AUTHOR: John Jeffrey RamirezNOTES/QUICKIE FACTS:

MIAA is being required by the City ofGovernment of Paranaque to pay real estatetaxes over its Airport Lands and Buildings.MIAA alleged they are not subject to realestate tax. But City of Government of

Paranaque argued otherwise.

FACTSRespondent Aproniano Jorolan filed Administrative Case

against petitioner before the PLEB charging the latte

of Grave Misconduct for allegedly having an illicit relationship with respondents minor daughter. Responden

also instituted a criminal case against petitioner before the MTC for Violation of Republic Act No. 7610

otherwise known as the Child Abuse Act.

Petitioner filed his Counter-Affidavitbefore the PLEB vehemently denying all the accusations leveled agains

him. In support thereof, petitioner attached the affidavit of complainants daughter, Rigma A. Jorolan, wh

denied having any relationship with the petitioner or having kissed him despite knowing him to be a marriedperson.

PLEB issued a decision founding that Acuzar guilty of Grave Misconduct.

Petitioner:Petitioner filed a Petition for Certiorari with Prayer for Preliminary Mandatory Injunction and Temporary

Restraining Order[7]

with the RTC of Tagum City, Branch 31, docketed as Special Civil Case No. 384. Petitionealleged that the subject decision was issued without giving him an opportunity to be heard. He likewise averred

that the respondent Board acted without jurisdiction in proceeding with the case without the petitioner having be

first convicted in the criminal case before the regular court. Petitioner pointed out that under the PLEB Rules of

Procedure, prior conviction was required before the Board may act on the administrative case considering that thcharge was actually for violation of law, although denominated as one (1) for grave misconduct

Petitioner contends that the petition he filed before the trial court was appropriate because the instant case fallsunder the exceptions to the rule on exhaustion of administrative remedies, the decision being patently illegal.Petitioner maintains that a conviction should have been first obtained in the criminal case filed against him for

child abuse before the PLEB can acquire jurisdiction over his administrative case. He also maintains that the

Boards decision was reached without giving him an opportunity to be heard and his right to due process wasviolated. The Boards decision having been rendered without jurisdiction, appeal was not an appropriate remedy

Respondent:

CA found merit in respondents argument that the petition for certiorari filed by petitioner before the RTC wanot the proper remedy because (1) appeal was available and (2) the issues raised were not pure questions of law

but both questions of law and fact. According to the CA, the existence and availability of the right of appea

proscribes resort to certiorari because one (1) of the requirements for its availment is the absence of the remedof appeal or any other plain, speedy or adequate remedy. The CA ruled that petitioner should have appealed th

decision of the PLEB to the regional appellate board of the PNP before resorting to certiorari before the court

The CA added that while it is true that there are instances where the extraordinary remedy of certiorari may be

resorted to despite the availability of an appeal, petitioner, however, failed to demonstrate any ground to warranimmediate resort to it. Thus, it held that the trial court erred in giving due course to the petition.
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ISSUE:

Whether or not the CA erred in ruling that petitioners resort to certiorari was not warranted as the remedy of

appeal from the decision of the PLEB was available to him?

HELD: No

RATIO:

The contention however is untenable. A careful perusal of respondents affidavit-complaint against petitione

would show that petitioner was charged with grave misconduct for engaging in an illicit affair with respondentminor daughter, he being a married man, and not for violation of law, as petitioner would like to convince thiCourt. Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated

obstinate or intentional purpose.[10]

It usually refers to transgression of some established and definite rule o

action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption ocriminal intention but implies wrongful intention and not to mere error of judgment.

[11] On the other hand

violation of law presupposes final conviction in court of any crime or offense penalized under the Revised

Penal Code or any special law or ordinance.[12]

The settled rule is that criminal and administrative cases ar

separate and distinct from each other.[13]

In criminal cases, proof beyond reasonable doubt is needed whereas iadministrative proceedings, only substantial evidence is required. Verily, administrative cases may procee

independently of criminal proceedings.[14]

The PLEB, being the administrative disciplinary body tasked to hea

complaints against erring members of the PNP, has jurisdiction over the case.

Since appeal was available, filing a petition for certiorari was inapt. The existence and availability of the righ

of appeal are antithetical to the availment of the special civil action of certiorari.[16]

Corollarily, the principle o

exhaustion of administrative remedies requires that before a party is allowed to seek the intervention of thcourt, it is a precondition that he should have availed of the means of administrative processes afforded t

him. If a remedy is available within the administrative machinery of the administrative agency, then thi

alternative should first be utilized before resort can be made to the courts. This is to enable such body to reviewand correct any mistakes without the intervention of the court.

Moreover, for a special civil action for certiorari to prosper, the following requisites must concur: (1) i

must be directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (2) th

tribunal, board or officer must have acted without or in excess of jurisdiction or with grave abuse of discretionamounting to lack or excess of jurisdiction; and (3) there is no appeal nor any plain, speedy and adequate remed

in the ordinary course of law.[17]

For sure, petitioners bare allegation that appeal from the judgment of the Boar

may not be adequate does not justify immediate resort to certiorari. Moreover, the extraordinary writ of certiorarmay be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to anevasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation

of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or persona

hostility.[18]

Here, not only was an appeal available to petitioner as a remedy from the decision of the PLEBpetitioner also failed to sufficiently show any grave abuse of discretion of the Board which would justify hi

immediate resort to certiorari in lieu of an appeal.

Contrary to petitioners claim that he has not been afforded all the opportunity to present his side, our own

review of the records of the proceedings before the PLEB reveals otherwise.

In administrative proceedings, procedural due process has been recognized to include the following: (1

the right to actual or constructive notice of the institution of proceedings which may affect a respondents legarights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and

evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and s

constituted as to afford a person charged administratively a reasonable guarantee of honesty as well a

impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted foconsideration during the hearing or contained in the records or made known to the parties affected.

[20]

In the instant case, petitioner was notified of the complaint against him and in fact, he had submitted hi

counter-affidavit and the affidavits of his witnesses. He attended the hearings together with his counsel and eve
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asked for several postponements. Petitioner therefore cannot claim that he had been denied of due process. Duprocess in an administrative context does not require trial-type proceedings similar to those in courts of justice

Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denia

of due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity t

explain their side of the controversy. In other words, it is not legally objectionable for being violative of duprocess for an administrative agency to resolve a case based solely on position papers, affidavits or documentar

evidence submitted by the parties as affidavits of witnesses may take the place of direct testimony. Here, w

note that petitioner had more than enough opportunity to present his side and adduce evidence in support of hi

defense; thus, he cannot claim that his right to due process has been violated.

DISPOSITIVE:

WHEREFORE,the petition is DENIED. The Decision dated March 23, 2007 of the Court of Appeals in CA-

G.R. SP No. 77110 is herebyAFFIRMED.


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082 ROBERTO IGNACIO, petitioner,

vs.

LEONCIO BANATE, JR., HON. AQUILINO PIMENTEL, in his

capacity as Minister of Local Governments and Community

Development and the CITY TREASURER OF ROXAS

CITY, respondents.

TOPIC:

PONENTE: GUTIERREZ, JR.,J.

AUTHOR: Jelena


Ignacio was elected as Barangay Captain then President of th

Association Barangay Councils, which led to his appointment as

member of the City Council of Roxas By The president.

Banate Jr. was appointed as his replacement. Petitioner seeks t

nullify this contending that he is not qualified for the position.

PARTIES:ROBERTO IGNACIO, petitioner,

vs.

LEONCIO BANATE, JR., HON. AQUILINO PIMENTEL, in his capacity as Minister of Local Governments and Community Developmen

and the CITY TREASURER OF ROXAS CITY, respondents.

NATURE:

Petition for quo warranto and prohibition with prayer for preliminary and temporary restraining order seeking to nullify th

appointment or designation of private respondent Leoncio Banate, Jr., as a member of the Sangguniang Panlungsod of the City o

Roxas.

FACTS:

1. [PETITIONER WAS ELECTED] The petitioner was elected Barangay Captain of Barangay Tanza, Roxas City on May 17, 1982, for a

term of six years which commenced on June 7,1982.

2. [SUBSEQUENTLY ELECTED] President of the Association of Barangay Councils or Katipunang Panlungsod Ng Mga Barangay in

Roxas City, in accordance with the Local Government Code and the implementing rules and regulations of the Katipunan.3. [BECAUSE OF THAT POSITION] he was appointed a member of the Sangguniang Panlungsod or City Council of the Roxas City b

then President Marcos.

a. As such member, he took his oath of office on June 24, 1982.

4. [May 9, 1986][APPOINTMENT OF REPLACEMENT] respondent Minister Aquilino Pimentel designated Leoncio Banate, Jr., a

member of the Sangguniang Panlungsod of Roxas City, to replace the petitioner.

5. *PETITIONERS CONTENTIONS]

a. respondent Banate is not qualified to be a member of the Sangguniang Panlungsod and to replace him as the

representative of the Katipunan Ng Mga Barangay of Roxas City because his membership in the city council as Katipuna

President is governed by the Local Government Code (BP Blg. 337), particularly Sec. 173 which provides that:

i. Sec. 173. Composition and Compensation. (l) sangguniang panlungsod as the legislative body of the city

shall be composed of the vice-mayor, as presiding officer, the elected sangguniang panlungsodmembers, an

the members who may be appointed by the President of the Philippines consisting of the presidents othe katipunan panlungsod ng mga barangayand the kabataang barangaycity federation.

b. His appointment as member of the Sangguniang Panlungsod was by virtue of his having been elected by the Katipunan

Panlungsod Ng Mga Barangay of said city as president thereof in accordance with BP Blg. 337 while respondent Banate

is not an officer, much less President of the Katipunang Panlungsod Ng Mga Barangay of Roxas City and has not been

duly elected for any of said positions.

c. The appointment of respondent Banate by Minister Pimentel is invalid considering that under Sec. 173 of the Loca

Government Code, it is the President of the Philippines and not the Minister of Local Governments who has the powe

and authority to appoint the President of the Katipunang Panlungsod Ng Mga Barangay as member of the Sanggunian

Panlungsod. He claims that this appointment power cannot be delegated to said minister for this is a strictly persona

act which the Constitution and the laws specifically ordain to be performed by the President alone.

6. [Solicitor General COUNTER ARGUMENTS]

a. Under the Local Government Code (BP Blg. 337), the terms of office of local government officials commenced on the

first Monday of March 1980 and ended on March 28, 1986. The period was extended to June 30, 1986 by the OmnibuElection Code of 1985 (BP Blg. 881).

b. The petitioner, as an appointive local government official who assumed office under the 1973 Constitution, is covered

by the provisions of Section 2, Article III of Proclamation No. 3 issued by President Corazon C. Aquino, which provide

that "All elective and appointive officials and employees under the 1973 Constitution shall continue in office unt

otherwise provided by proclamation or executive order or upon the designation or appointment and qualification o

their successors, if such is made within a period of one year from February 25, 1986."

c. With respect to the argument of the petitioner that the appointing power of the President of the Philippines cannot b

delegated to Minister Pimentel, the Solicitor General replied that under the provisions of Section 2, Article III o

Proclamation No. 3, dated March 25, 1986, issued by President Corazon C. Aquino, otherwise known as the Provisiona

Constitution, the power to delegate or appoint officers-in-charge in replacement of local government officials by the

Minister Aquilino Pimentel, Jr., as alter egoof the President of the Philippines, has been upheld by this Court in severa


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cases.

ISSUE: Whether of not the appointment of Batante by Pimentel was valid.

HELD: NO.

RATIO:

1. It is true that Minister Pimentel, as cabinet member, is the alter egoof the President in appointing a public officer. His authorit

to designate or appoint local officials in an acting capacity has been upheld by this Court.

2. We must stress, however, that the appointee to a Sangguniang Panlungsod who sits there as a representative of the barangay

must meet the qualifications required by law for the position. An unqualified person cannot be appointed a member even in an

acting capacity.

3. It must be noted that the petitioner is an elected barangay captain of Barangay Tanza, Roxas City. As barangay captain, he wasubsequently elected President of the Association of Barangay Councils of Roxas City. It was by reason of his being the presiden

of the Association of Barangay Councils of Roxas City that the President of the Philippines appointed him as member of the

Sangguniang Panlungsod. This was pursuant to Section 3, paragraph 1 of BP Blg. 51 (An Act Providing for the Elective- o

Appointive Positions in Various Local Governments and for Other Purposes), which provides that:

a. Sec. 3. Cities. There shall be in each city such elective local officials as provided in their respective charters, includin

the city mayor, the city vice-mayor, and the elective members of the sangguniangpanlungsod, all of whom shall b

elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang panlungso

members consisting of the president of the city association of barangay councils , the president of the city federation o

the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall b

appointed by the president wherever, as determined by the sangguniang panglungsod, said sectors are of sufficien

number in the city to warrant representative. (Emphasis supplied).

4. The aforequoted provision of law is complemented by Section 173 of the Local Government Code (BP Blg. 337) cited earlier.

5. The private respondent in this case, not being a barangay Captain and never having been elected president of the associationof barangay councils, cannot be appointed a member of the sangguniang panlungsod.

a. He lacks the eligibility and qualification required by law. Subject to constitutional restrictions, the Congress or the

legislative authority may determine the eligibility and qualification of officers and provide the method for filling them

The lawmaker's mandate has not been complied with.

6. The Authority exercised by the respondent Minister of Local Government must be read, however, in the context of th

constitutional provision upon which it is based.

7. The petitioner, as one who was appointed under the 1973 Constitution continues in office until the appointment an

qualification of his successor. Since the appointment of his successor, respondent Banate, is not valid, the tenure of petitione

Ignacio could not be terminated on that basis alone.

8. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby GRANTED. The appointment/designation of private responden

Banate as member of the Sangguniang Panlungsod of the City of Roxas representing the Katipunang Panlungsod Ng Mg

Barangay is DECLARED NULL and VOID. Petitioner ROBERTO IGNACIO is ordered REINSTATED as member of said SanggunianPanlungsod.


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083 RAUL A. GALAROSA vs HON. EUDARLIO B.

VALENCIA and RODOLFO SALAY

TOPIC: Local Special Bodies; Liga ng mga Barangay

PONENTE: Davide; J.

AUTHOR: Arthur Archie Tiu


At the hub of the present controversy is Section 49

of Republic Act No. 7160, otherwise known as th

Local Government Code of 1991, which provides a

follows:

Sec. 494. Ex officio Membership i

Sanggunians. The duly elected presidents of thLiga [ng mga Barangay] at the municipal, city and

provincial levels, including the component cities and

municipalities of Metropolitan Manila, shall serv

as ex-officio members of the sanggunian bayan

sanggunian panglunsod, and sanggunia

panlalawigan, respectively. They shall serve as such

only during their term of office as presidents of th

liga chapters, which in no case shall be beyond th

term of office of the sanggunian concerned.FACTS

1. Petitioner Galarosa is the incumbent president of the katipunang bayan or Association of Baranga

Councils (ABC) of Sorsogon. (he was appointed as member of the Sanggunian Bayan (SB) per EO

342.

2. Respondent Lasay (incumbent barangay captain) of Barangay Gimaloto and an aspirant for th

position of president of the ABC of the said municipality, filed with the court a quo against the

public respondent SB of Sorsogon a petition for declaratory relief and injunction with a prayer fo

the issuance a temporary restraining order.

3. Lasay: the term of office of GALAROSA as an ex officio member of the SB of Sorsogon i

coterminous with that, of the said SB which expired on 30 June 1992; hence there was a need fo

the new election of an ABC representative. He further alleged that during its session, the SB o

Sorsogon accepted and recognized the participation of GALAROSA over his (LASAY's) protest

allegedly on the basis of the memorandum of the Department of Interior and Local Governmen(DILG) allowing the ABC presidents elected before 30 June 1992 to continue in office until th

election of new ones

4. SB Sorsogon: LASAY "has no legal right to file the petition or the petition "is based on pur

speculative rights," and (b) the petition is premature since the resolution of the issues raised may

still be the subject of rules and regulations to implement Section 494 of the Code.

5. Respondent Judge issed a TRO directing the SB of Sorsogon "to desist from recognizing th

participation of the old Ex officio membership of the President of the Association of Baranga

Captains and to hold in abeyance the taking and/or payment of salaries from the Municipa

Government of Sorsogon relative thereto. He later issued a writ of preliminary injunction.

6. respondent Judge rejected the claim of the SB of Sorsogon that (1) pursuant to DILG Memorandum

Circular No. 92-38 dated 29 June 1992, Section 494 of the Local Government Code was reconciledwith Article 210 (d)(3), Rule XXIX of the Rules and Regulations Implementing the said Code which

provides that incumbent ABC presidents shall continue to serve as ex officio members of thei

respective sanggunians unless sooner removed for cause or the new officers shall have been

elected and qualified; (2) LASAY is not the proper party in interest and even if he is, he did no

exhaust all available administrative remedies; and The respondent Judge did not squarely tackl

the issue regarding the locus standi of LASAY, although he described LASAY as "the incumben

Barangay Captain of Gimaloto . . . a declared aspirant for President of the [ABC] . . . as well as being

a taxpayer claiming direct interest to complain, protest and seek the proper relief."


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ISSUE: whether or not GALAROSA can continue to serve as a member of the SB beyond 30 June 1992, the dat

when the term of office of the elective members of the SB of Sorsogon expired

HELD: Yes

Dispositive: WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the decision of th

respondent Judge in Civil Case No. 5575 of Branch 52 of the Regional Trial Court of Sorsogon, Sorsogon.

RATIO:

1. Section 494 of the Local Government Code of 1991 provides for the ex officio membership in the respectiv

sanggunians of the duly elected presidents of the liga at the municipality, city, and provincial levelsincluding the component cities and municipalities of Metro Manila. The liga referred to therein is the lig

ng mga barangay. Section 491 of the Code provides for its creation and purpose:

2. Sec. 491. Purpose of organization.There shall be an organization of all barangays to be known athe Liga ng mga Barangay for the primary purpose of determining the representation of the liga in the

sanggunians and for ventilating, articulating, and crystallizing issues affecting barangay governmen

administration and securing, through proper and legal means, solutions thereto.

3. Every barangay is represented in the liga ng mga barangay by the punong barangay, or in his absence oincapacity, by a sanggunian member duly elected for the purpose among its members. 16 The principal aim

of the liga ng mga barangay is to promote the development of barangays and secure the general welfare o

their inhabitants.

4. The forerunner of the liga ng mga barangay is the katipunan ng mga barangay under Section 108 of B.P

Blg. 337, which was known as the katipunang bayan in municipalities, katipunang panglungsod in citieskatipunang panlalawigan in provinces, and katipunan ng mga barangay on the national level. Each

barangay therein was represented by the punong barangay. The katipunang bayan was also referred to a

the Association of Barangay Councils or ABC for short. Pursuant to the first paragraph of Section 146 o

B.P. Blg. 337, the president of the said organization was among the members of the sangguniang bayan

the legislative body of the municipality subject, however, to appointment by the President of th

Philippines. Under Section 110(3) thereof, the term of office of all officers of the katipunang bayan

including its president, was to be governed by "the by-laws of the organization, without prejudice, however

to their term of office as member of the sanggunian to which they may be correspondingly appointed."

Section 25 of the By-Laws of the Katipunan ng mga Barangay 18 provides that "the term of office of al

officers of the katipunan at all levels shall be from the date of their elections until the next katipuna

elections following general barangay elections, subject to the limitations of Section 4 and the succeedin

sections hereof."5. Accordingly, the president of the katipunang bayan became, after an appointment extended by th

President through the Secretary of the Department of Local Government, a member of the firs

sangguniang bayan organized under the 1987 Constitution following the local elections held on 18 Januar

1988. That GALAROSA was extended such appointment is not disputed.

6. There is no indication at all that Section 491 and Section 494 should be given retroactive effect to adverselaffect the presidents of the ABC. They should thus be applied prospectively.

7. The presidents of the katipunang bayan or ABC who were appointed as members of the sangguniang bayanby the President through the Secretary of Local Government by virtue of E.O. No. 342 were appointed t

the sangguniang bayan whose regular members were elected in the 18 January 1988 local elections and

whose terms expired on 30 June 1992. It is t be presumed that they could not have been appointed for a

term beyond that of the sangguniang bayan.

8. There is, however, no law which prohibits them from holding over as members of the sangguniang bayanOn the contrary, the aforementioned IRR, prepared and issued by the Oversight Committee upon specifi

mandate of Section 533 of the Local Government Code, expressly recognizes and grants that hold-ove

authority to ABC presidents. Pertinent portions of paragraphs (d) and (f), Article 210 of the IRR read a

follows:

9.10.Art. 210 Liga ng mga barangay.

xxx xxx xxx

(d) Ex officio membership in the sanggunian


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xxx xxx xxx

(3) The incumbent presidents of the municipal, city, and provincial chapters of the liga shall continue t

serve as ex officio members of the sanggunian concerned until the expiration of their term of office, unles

sooner revoked for cause.

xxx xxx xxx

(f) Organizational structure

(l) . . . . Pending election of the presidents of the municipal, city, provincial, and metropolitan chapter

of the liga, the incumbent presidents of the association of barangay councils in the municipality, city

province, and Metropolitan Manila shall continue to act as presidents of the corresponding liga

11. the DILG issued Memorandum Circular No. 92-38 which reads as follows:

In view of the numerous issues and concerns reaching this Department requesting for a clarificatory rulin

regarding the term of office of the incumbent ABC Presidents as ex-officio members of the respectiv

sanggunian pending the reorganization and election of the new liga chapter, the following guidelines ar

hereby promulgated for the guidance and reference of all concerned:

Section 494 Local Government Code of 1991 (RA 7160)

The duly elected presidents of the liga at the municipal, city and provincial levels, including the componen

cities and municipalities of Metro Manila, shall serve as ex officio members of the sangguniang bayan

sangguniang panglunsod [and] sangguniang panlalawigan, respectively. They shall serve as such only

during their term of office as presidents of the liga chapters which in no case shall be beyond the term o

office of the sanggunian concerned.

Article 210 (d) (3), Rule XXIX of the IRR

The incumbent presidents of the municipal, city and provincial chapters of the Liga shall continue to serv

as ex officio members of the sanggunian concerned until the expiration of their term of office, unless soone

removed for cause.12. the purpose is to prevent the hiatus in the government pending the time when the successor may be chosen

and inducted into office. 24 Section 494 of the Local Government Code could not have been intended t

allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian

Since the term of office of the punong barangays elected in the 28 March 1989 election and the term of offic

of the presidents of the ABC have not yet expired and taking into account the special role conferred upon

and the broader powers and functions invested in the barangays by the Code as a basic political unit,

primary planning and implementing unit of government policies in the community, and as forum wherein

the collective views of the people may be expressed and considered and where disputes may be amicably

settled, 25 it would be in harmony with sound logic to infer that the Code never intended to deprive th

barangays of their representation in the sangguniang bayan during the interregnum when the liga has yet t

be formally organized with the election of its officers.

13.We therefore hold that GALAROSA, as president of the ABC of Sorsogon, can legally and validly hold oveas a member of the sangguniang bayan of Sorsogon, Sorsogon, until the election of the first set of officers othe liga ng mga barangay, unless he is sooner removed for cause.


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084

Sangguniang Barangay of Don Mariano Marcos of Bayombing, province of Nueva Viscaya v.Punong Barangay Severino Martinez

G.R. No. 17026March 3, 2008

Nature: Petition for Review on Certiorariunder Rule 45 assailing the Orders of the trial court ruled that the SangguniangBayan of Bayombong, Neuva Vizcaya (Sangguniang Bayan), exceeded its jurisdiction when it imposed upon respondentSeverino Martinez the administrative penalty of removal from office.

Facts:

Petitioner Sangguniang Barangay is the legislative body of Barangay Don Mariano Marcos, Bayombong, NuevaVizcaya, a local government unit created, organized and existing as such under pertinent laws of the Republic ofthe Philippines.

Respondent Martinez is the incumbent Punong Barangay of the said local government unit.

Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner through the filing ofa verified complaint before the Sangguniang Bayan as the disciplining authority over elective barangayofficialspursuant to Section 61

1[4]of Rep. Act No. 7160, otherwise known as the Local Government Code

Petitioner filed with the Sangguniang Bayan an Amended Administrative Complaint against Martinez on 6December 2004 for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act

Petitioner alleged that Martinez committed the following acts:1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste

management project since 2001 particularly the sale of fertilizer derived from composting.

2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken fromgarbage collection.

3. Using the garbage truck for other purposes like hauling sand and gravel for private personswithout monetary benefit to the barangay because no income from this source appears in theyear end report even if payments were collected x x x.

4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts ofthe garbage truck instead of using the money or income of said truck from the garbage feescollected as income from its Sold Waste Management Project. x x x.

5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cashadvance was made by the respondent for the said purpose, he, however, did not attend saidseminar because on the dates when he was supposed to be on seminar they saw him in thebarangay. x x x.

6. That several attempts to discuss said problem during sessions were all in vain because respondentdeclined to discuss it and would adjourn the session

Upon his failure to file an Answer to the Amended Administrative Complaint dated 6 December 2004, Martinezwas declared by the Sangguniang Bayan as in default

Pending the administrative proceedings, Martinez was placed under preventive suspension for 60 days

Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of removal from office.

Municial Mayor Bagasao issued a Memorandum, wherein he stated that the Sanggunaing Bayan is not

empowered to order Martinezs removal from service. However, the Decision remains valid until reversed andmust be executed by him. For the meantime, he ordered the indefinite suspension of Martinez since the period ofappeal had not yet lapsed

Martinez filed a Special Civil Action for Certiorariwith a prayer for Temporary Restraining Order and PreliminaryInjunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning thevalidity of the Decision of the Sangguniang Bayan.

Trial courtissued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of MayorBagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective


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local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of theSangguniang Bayan removing Martinez from service is void.

Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void order.

Although Martinezs term as Punong Baranggay expired upon the holding of the 29 October 2007 SynchronizedBarangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, the Courtwill nevertheless settle a legal question that is capable of repetition yet evading review

Issue:1. WON the Sangguniang Bayan may remove Martinez, an elective local official, from office.No. The Court

has jurisdiction.

Extra:2. WON the Court has jurisdictionto determine in an appropriate action the validity of acts of the political

departments.Yes. Clear in the Constitution.3. WON Martinez is required to exhaust all administrative remedies in this case.No. Exception to the rule.

Held:

1. No - The pertinent legal provisions and cases decided by this Court firmly establish that the SanggunaingBayan is not empowered to do so.

Section 60 of the Local Government Code conferred upon the courts the power to remove elective locaofficials from office:

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.

An elective local official may be removed from office on the grounds enumerated above by orderof the proper court. (Emphasis provided.)

In Salalima v. Guingona, Jr.,2[17]

the Court en banccategorically ruled that the Office of the President is without any powerto remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the lastparagraph of Section 60 of the Local Government Code.

It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of1991, which provided that:

Article 125. Grounds for Disciplinary Actions. x x x.x x x.(b) An elective local official may be removed from office on the grounds enumerated in paragraph(a) of this Article by order of the proper court or the disciplining authority whichever first acquiresjurisdiction to the exclusion of the other.

The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and Regulations of theLocal Government Code exceeded its authority when it granted to the disciplining authority the power to remove electiveofficials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, theSangguniang Bayan is not vested with the power to remove Martinez.

The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority inwhom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is notjust an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage.Their will must not be put to naught by the caprice or partisanship of the disciplining authority.Where thedisciplining authority is given only the power to suspend and not the power to remove, it should not be permitted tomanipulate the law by usurping the power to remove.


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Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing arm of theSangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable breach of the doctrine on separation ofpowers, thus placing the courts under the orders of the legislative bodies of local governments.

Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate courtwhere court rules of procedure and evidence can ensure impartiality and fairness and protect against politicamaneuverings. Elevating the removal of an elective local official from office from an administrative case to a court casemay be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives theelectorate of the services of the official for whom they voted.

2. On Authority of the Courts:The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts todetermine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in termsof duty.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legallydemandable and enforceable, and to determine whether or not there has been a grave abuse of discretionamounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government .

3. On Exhaustion of administrative remedies:The doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities inthe resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice forreview. Non-observance of the doctrine results in lack of a cause of action, which is one of the grounds allowed by the

Rules of Court for the dismissal of the complaint.

The doctrine of exhaustion of administrative remedies, which is based on sound public policy and practical consideration,is not inflexible. There are instances when it may be dispensed with and judicial action may be validly resorted toimmediately. Among these exceptions are:

1. Where there is estoppelon the part of the party invoking the doctrine;2. Where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3. Where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant;4. Where the amount involved is relatively small as to make the rule impractical and oppressive;5. Where the question raised is purely legal and will ultimately have to be decided by the courts of justice;6. Where judicial intervention is urgent;7. Where its application may cause great and irreparable damage;8. Where the controverted acts violate due process;9. When the issue of non-exhaustion of administrative remedies has been rendered moot;10. Where there is no other plain, speedy and adequate remedy;11. When strong public interest is involved; and12. in quo warrantoproceedings.

As a general rule, no recourse to courts can be had until all administrative remedies have been exhaustedHowever, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack ofjurisdiction and where the question or questions involved are essentially judicial.

In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailedOrder dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was nolonger required to avail himself of an administrative appeal in order to annul the said Order of the SangguniangBayan.Thus, his direct recourse to regular courts of justice was justified.

In addition, this Court in Castro v. Gloriadeclared that where the case involves only legal questions, the litigant

need not exhaust all administrative remedies before such judicial relief can be sought. The reason behind providing anexception to the rule on exhaustion of administrative remedies is that issues of law cannot be resolved with finality by theadministrative officer. Appeal to the administrative officer would only be an exercise in futility. A legal question is properlyaddressed to a regular court of justice rather than to an administrative body.

In the present case, Martinez raised before the trial court the sole issue of whether the Sangguniang Bayan hasjurisdiction over a case involving the removal of a local elective official from office. In Martinezs petition before the triacourt, only a legal question was raised, one that will ultimately be resolved by the courts. Hence, appeal to theadministrative officer concerned would only be circuitous and, therefore, should no longer be required before judicial reliefcan be sought.


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[85] G.R. No. 192280 January 25, 2011

SERGIO G. AMORA, JR., Petitioner,vs.

COMMISSION ON ELECTIONS and ARNIELO S.

OLANDRIA, Respondents.

TOPIC: Disqualifications of elective officialsPONENTE: Nachura

AUTHOR: Gabriel Paulo R. UyNOTES/QUICKIE FACTS: Olandria petitioned t

disqualify Amora based on the ground other than what waexclusively enumerated in the Omnibus election code an

Locgov Code. COMELEC erroneously granted.

Facts:

Amora submitted her Certificate of Candidady(COC) for Mayor of Candijay, Bohol. At that time, Amora was theincumbent Mayor of Candijay and had been twice elected to the post.

Olandria filed a petition to disqualify Amora because Amoras COC was not properly sworn contrary to the requirements

of the Omnibus Election Code (OEC) and the 2004 Rules on Notarial Practice. Olandria pointed out that, in executing hisCOC, Amora merely presented his Community Tax Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty.Granada), instead of presenting competent evidence of his identity

COMELEC division disqualified Amora

Amora won in the elections pending decision of the COMELEC en banc

Amora avers:

1. The Petition for Disqualification is actually a Petition to Deny Due Course or cancel a certificate of candidacy.Effectively, the petition of Olandria is filed out of time;

Section 78 provides that:

"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to

deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the groundthat any material representation contained therein as required under Section 74 hereof is false. The petitionmay be filed atany time not later than twenty-five days from the time of the filing of the certificate ofcandidacy

Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to Deny Due Course since thepurported ground for disqualification simply refers to the defective notarization of the COC. Amora is adamant thatSection 73 of the OEC pertains to the substantive qualifications of a candidate or the lack thereof as grounds fordisqualification, specifically, the qualifications and disqualifications of elective local officials under the Local Governmen

Code (LGC) and the OEC. Thus, Olandrias petition was filed way beyond the reglementary period of twenty -five (25)days from the date of the filing of the disputed COC.

COMELEC en banc disqualified Amora because in the sworn certificate of candidacy there must be submission ofcompetent evidence of identity to the notary public. Petitioner only gave a CTC which bears no photograph and is no

longer a valid form of identification for purposes of Notarization of Legal Documents because a competent evidence ofidentity must give (a) at least one current identification document issued by an official agency bearing the photograph andsignature of the individual. x x x."

Also, (filed because they thught there are grounds for disqualification).as to amoras contention that it was filed out of


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time, The Petition has clearly stated that it was invoking Section 73 of the Election Code, which prescribes the mandatoryrequirement of filing a sworn certificate of candidacy. As properly pointed out by [Olandria], he filed a Petition toDisqualify for Possessing Some Grounds for Disqualification, which, is governed by COMELEC Resolution No. 8696, to

wit:

"B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTIONCODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS

FOR DISQUALIFICATION

1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify acandidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the las

day for filing of certificates of candidacy but not later than the date of proclamationIssue:

w/n the petition to disqualify should be granted

impropertly sowrn COC isnt a ground for DQ)In this case,it was grave abuse of discretion to uphold Olandrias claim thaan improperly sworn COC is equivalent to possession of a ground for disqualification.

The grounds for disqualification are:

SEC. 68. Disqualifications.Any candidate who, in an action or protest in which he is party is declared by final decisionof a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration toinfluence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to

enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83,85, 86, and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if hhas been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign countryshall not be qualified to run for any elective office under this Code, unless said person has waived his status as a permanen

resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws

and of Section 40 of the LGC, which provides:

SEC. 40. Disqualifications.The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to availof the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

It is quite obvious that the Olandria petition is not based on any of the grounds for disqualification above. Nowhere thereindoes it specify that a defective notarization is a ground for the disqualification of a candidate. Yet, the COMELEC would

uphold that petition upon the outlandish claim that it is a petition to disqualify a candidate "for lack of qualifications or


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possessing some grounds for disqualification."

A petition for disqualification relates to the declaration of a candidate as ineligible or lacking in quality or accomplishmentfit for the position of mayor.

a petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC

On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a materialrepresentation in the said certificate that is false. The petitions also have different effects. While a person who isdisqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or

denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v.Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be substituted

under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC has beendenied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a candidate.

Non Locgov ruling:

Amora complied with the requirement of a sworn COC. He readily explained that he and Atty. Granada personally knew

each other; they were not just colleagues at the League of Municipal Mayors, Bohol Chapter, but they consider each otheras distant relatives.

Dispositive:

WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on Elections in SPA No. 10-046 (DC)dated April 29, 2010 and May 17, 2010, respectively, are ANULLED and SET ASIDE.


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087Moreno v. Comelec

G.R. No. 168550, 10 Aug 2006TOPIC: Elective Officials - QualificationsPONENTE: Tinga, J.

AUTHOR: Danna Zerrudo


Moreno was running for Punong Barangay.

Mejes contends that, based on Sec. 40(a) of thLocal Government Code, Moreno is disqualifiefrom running because the latter was convicted of th

crime of Arbitary Detention. Moreno contends that he is actually qualified sinc

he is a probationer.

Petitioner: Urbano MorenoRespondents: COMELEC and Norma Mejes

FACTS1. Moreno was running for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 200

Synchronized Barangay and Sangguniang Kabataan Elections.2. Mejes filed a petition to disqualify Moreno from running.

Private Respondents contention: Moreno was convicted by final judgment of the crime of ArbitrarDetention and was sentenced to suffer imprisonment of 4 Months and 1 Day to 2 Years and 4 Months by

the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998. Thus, based on Sec. 40(Aof the Local Government Code, he isnt qualified to runfor local elective office.

3. Petitioners contentions: The petition states no cause of action because:

He was already granted probation. Thus, the imposition of the sentence of imprisonment, as well as thaccessory penalties, was already suspended; and

Under Sec. 16 of the Probation Law of 1976, the final discharge of the probation shall operate to restore thim all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for anyfine imposed. The order of the trial court dated December 18, 2000 allegedly terminated his probation anrestored to him all the civil rights he lost as a result of his conviction, including the right to vote and bvoted for in the July 15, 2002 elections.

4. The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearingAfter due proceedings, the Investigating Officer recommended that Moreno be disqualified. The Comelec Firs

Division adopted this recommendation.5. Upon filing a motion for reconsideration, the COMELEC en banc affirmed the COMELEC First Divisions ruling

holding that Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for anoffense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 year

after serving sentence, are disqualified from running for any elective local position. Since Moreno was releasefrom probation on December 20, 2000, disqualification shall commence on this date and end 2 years thence. Thgrant of probation to Moreno merely suspended the execution of his sentence but did not affect his disqualification

from running for an elective local office.6. Thus, Moreno filed this instant petition.

Petitioners contentions: The disqualification under the Local Government Code applies only to those whhave servedtheir sentence and not to probationers because the latter do not serve the adjudged sentenceThe Probation Law should be read as an exception to the Local Government Code because it is

special law which applies only to probationers. Further, even assuming that he is disqualified, hisubsequent election as Punong Barangay allegedly constitutes an implied pardon of his previoumisconduct.

7. COMELECs contention (through OSG): The disqualification under Sec. 40(a) of the Local Government Codsubsists and remains totally unaffected notwithstanding the grant of probation.

Sec. 40(a) of the Local Government Code reads:Sec. 40.Disqualifications.The following persons are disqualified from running for any elective loca

position:(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offens

punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence

ISSUE: Whether or not Moreno is qualified to run for Punong Barangay


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HELD: Yes

RATIO:

1. Clearly, the period within which a person is under probation cannot be equated with service of the sentencadjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the executioof the sentence. During the period of probation, the probationer does not serve the penalty imposed upon him by

the court but is merely required to comply with all the conditions prescribed in the probation order.2. It appears then that during the period of probation, the probationer is not even disqualified from running for

public office because the accessory penalty of suspension from public office is put on hold for the duration of thprobation.

3. Sec. 40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced bfinal judgment for an offense punishable by imprisonment of one (1) year or more, with in two (2) years afte

serving sentence.

4. [T]hose who have not served their sentence by reason of the grant of probation which, we reiterate, shouldnot be equated with service of sentence, should not likewise be disqualified from running for a local electiv

office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code doe

not even begin to run.5. It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offense

punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spitof this, the provision does not specifically disqualify probationers from running for a local elective office. Thi

omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct clasof offenders not covered by the disqualification.

6. [W]e agree with Moreno that the Probation Law should be construed as an exception to the LocaGovernment Code. While the Local Government Code is a later law which sets forth the qualifications anddisqualifications of local elective officials, the Probation Law is a special legislation which applies only t

probationers. It is a canon of statutory construction that a later statute, general in its terms and not expresslrepealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute.

7. Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime oArbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, DaramSamar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chie

Justice Artemio Panganiban in Frivaldo v. Comelecwhere he said that it would be far better to err in favor opopular sovereignty than to be right in complex but little understood legalisms.


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089 ERNESTO S. MERCADO v.

EDUARDO BARRIOS MANZANO and

COMELEC

[G.R. No. 135083 May 26, 1999]

TOPIC: Elective Officials - Qualifications

PONENTE: MENDOZA, J.

AUTHOR: JANNAThe phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No

7854, 20 must be understood as referring to "dual allegiance." Personwith mere dual citizenship do not fall under this disqualification. Fo

candidates with dual citizenship, it should suffice if, upon the filing of thei

certificates of candidacy, they elect Philippine citizenship to terminate theistatus as persons with dual citizenship

FACTS:1. MERCADO and MANZANO were both candidates for vice mayor of Makati in the 5-11-98 elections, with DAZA III.2. A certain Ernesto Mamaril filed a petition for disqualification against MANZANO, alleging that the latter was a USCitizen and not a Filipino Citizen.3. MANZANO admitted (4/27/98) that he is registered as a foreigner with the Bureau of Immigration under ACR No. B31632. He also alleged the ff.: (1)He is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipinmother; (2) He was born in the San Francisco, CA, on 9/14/55 and is considered in American citizen under US Laws(3) But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship.4. COMELEC resolution (5/7/98) granted Mamarils petition and ordered cancellation of MANZANOs certificate o

candidacy, declaring him DISQUALIFIED as a candidate for Vice-Mayor of Makati, on the ground of his dual citizenship

and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for anelective position.

5. MANZANO filed a motion for reconsideration on 5/8/98, which remained pending until 5/11/98.6. The ff. are the election results: (1) MANZANO = 103, 853; (2) MERCADO = 100,894; (3) DAZA III = 54,275thus, MANZANOs proclamation was suspended, pending said petition.7. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board o

canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner.8. On 5/19/98, MERCADO sought to intervene in the case for disqualification. MERCADOs motion was opposed byMANZANO. Motion was not resolved.9.On 8/31/98 COMELEC en bancrendered its resolution, reversing the ruling of its Second Division and declared privatrespondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections, Voting 4 to 1, with oncommissioner abstaining.

10. The pertinent portions of the resolution of the COMELEC en banc stated that: (1) MANZANO acquire

citizenship by operation of US Constitution and laws under theprinciple of jus soli.;(2)He was also a natural born Filipincitizen by operation of the 1935 Philippine Constitution, his parents being Filipinos at the time of his birth; (3) He wa

brought to the Philippines at age 6 using an American passport as travel document, and registered him at the Bureau oImmigration, and was thus issued an alien certificate of registration; (4)This did not result in the loss of his Philippin

citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States(5) When he attained age of majority, he registered himself as a voter and voted in 92, 95, and 98, which effectivelrenounced his US citizenship under American law. Under Philippine law, he no longer had U.S. citizenship; (6) At thtime of the 5/11/98 elections, the resolution by the COMELEC 2nd division adopted on 5/7 was not yet fina(7) MANZANO obtained the highest number of votes among the candidates for vice-mayor; (8) In applying election laws

it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving privatinternational law which may well be settled before the highest court . (9) WHEREFORE, the Commission en banc herebREVERSES the resolution of the Second Division [] and declare MANZANO QUALIFIED as a candidate for th

position of vice-mayor; (10) ACCORDINGLY, directs the Makati City Board of Canvassers, upon proper notice to thparties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate

11. Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on 8/31/98 proclaimed MANZANOas vice mayorof the City of Makati. Hence this petition for certiorari seeking to set aside Comelec en banc resolution.

SOLGEN and MERCADO: Invokes the maxim dura lex sed lex, contends that through 40(d) of the Local GovernmenCode, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold loca

elective office."


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ISSUE(S): Whether MANZANO was qualified to run for the elective position of Vice Mayor for the City of MakatWhether MANZANOs dual citizenship is a ground for disqualification.

HELD: NO. WHEREFORE, the petition for certiorariis DISMISSED for lack of merit. MANZANOs filing of hiCertification of Candidacy sufficed as a renunciation of his dual-citizenship.

RATIO:

1. To begin with, dual citizenshipis different from dual allegiance.The former arises when, as a result of the concurren

application of the different laws of two or more states, a person is simultaneously considered a national by the sai

states.9For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to theprinciple ofjus sanguinis is born in a state which follows the doctrine ofjus soli.Such a person,ipso facto and wi thouany voluntary act on hi s part, is concurrentl y considered a citizen of both states.Considering the citizenship clause (Ar

IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle ofjus soli;(2)Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their father's' country such children are citizens ofthat country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act oromission they are deemed to have renounced Philippine citizenship.

There may be other