G.R. No.

169253

February 20, 2013

PACIFICO C. VELASCO, Petitioner,

vs.
THE HON. SANDIGANBAYAN (Fifth
Division) and THE PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
PEREZ, J.:
In this petition for certiorari under Rule 65 of
the Rules of Court, petitioner alleges grave
abuse of discretion on the part of the Fifth
Division of the Sandiganbayan for issuing the
Resolution1 dated 9 June 2005 denying his
motion for reinvestigation and the subsequent
Resolution2 dated 15 August 2005, denying his
motion for reconsideration in Criminal Case No.
28097.
The antecedents follow.
Philip Corpus Velasco, then Mayor of the
Municipality of Bacarra in Ilocos Norte, filed an
Affidavit-Complaint against his predecessor,
petitioner Pacifico C. Velasco, containing the
following pertinent allegations:
1. On 21 September 1998, the Sangguniang
Bayan of Bacarra passed Resolution No. 98-065
entitled "RESOLUTION GRANTING AUTHORITY
TO THE LOCAL CHIEF EXECUTIVE, HON.
PACIFICO C. VELASCO TO PURCHASE ONE (1)
UNIT ROAD GRADER-KOMATZU G-D 31 TO BE
USED BY THE MUNICIPALITY OF BACARRA FOR
THE MAINTENANCE OF MUNICIPAL AND
BARANGAY ROADS", the dispositive portion of
which reads as follows, to wit:

"HEREBY RESOLVED to grant authority to the

Local Chief Executive, Hon. Pacifico C. Velasco
to purchase one (1) unit of Road GraderKOMATZU GD 31 to be used by the Municipality
of Bacarra for the maintenance of municipal
and barangay roads."
2. Shortly thereafter, on 20 October 1998, a
Disbursement Voucher was issued in favor of
PACIFICO C. VELASCO for the amount of

P670,000.00 "To cash advance the amount of

SIX HUNDRED SEVENTY THOUSAND PESOS
(P670,000.00) for the purchase of one (1) Road
Grader to be used by municipality per L[BP]
Check No. 106353 dated 10-13-98. x x x.
3. After the election of May 14, 2001, and after
the turn-over, it was found out during the
inventory of municipal properties that the Road
Grader was nowhere to be found. x x x.
4. In fact, a Joint Certification was issued by the
Office of the Treasurer that there was NO ROAD
GRADER-KOMATZU GD 30 (sic) OWNED BY THE
MUNICIPALITY OF BACARRA, x x x.
5. It was discovered later that sometime on 29
December 1998, PACIFICO C. VELASCO
allegedly made a refund of the afore-stated
amount to the Municipal Treasurer x x x.
8. Despite the alleged refund made by
PACIFICO C. VELASCO, he hired the services of
a certain Bernardo J. Bernardo (sic) as Heavy
Equipment Operator I, SG-4 on 16 August
2000, x x x.

9. Despite the alleged refund made by

PACIFICO C. VELASCO, several Requests for
Pre-Repair inspections, Job orders and
corresponding Disbursement Vouchers were
made for "repairs, spare parts, etc. of a
Komatzu GD 30, Road Grader, x x x.
17. From the foregoing statement of facts, as
supported by documentary evidences, I am
accusing former mayor Pacifico C. Velasco now
Provincial Board Member of Ilocos Norte and
the Municipal Treasurer of Bacarra, Ilocos
Norte, Lorna S. Dumayag, for violation of the
Anti-Graft Law and the Revised Penal Code as
amended for using public funds in the amount
of Six Hundred Seventy Thousand Pesos
(P670,000.00) in the purchase of a Road
Grader that [was] subsequently appropriated
by former mayor Pacifico C. Velasco as his
personal property.3
In his Counter-Affidavit, petitioner branded the
filing of the Complaint as politically motivated.
He admitted requesting for a cash advance
from the municipality for the purpose of
acquiring the road grader, which was

subsequently utilized by the municipality to

repair and maintain roads. When the expected
funds from the national government were not
released, petitioner was faced with the problem
of liquidating said cash advance. Thus, he was
forced to mortgage the road grader just so he
could reimburse the municipality in the sum of
P670,000.00. Petitioner justified the need for
replacement of spare parts and/or necessary
repairs to be paid out of municipal funds
because the municipal government was using
the road grader from October 1998 up to the
end of his term in June 2001. He also defended
the appointment of Bernardo Bernardino
(Bernardino), who was initially employed as a
casual employee and made permanent six (6)
months later. According to petitioner,
Bernardino was an all-around heavy equipment
operator and was not solely assigned as
operator of the subject road grader.4

On 11 December 2002, the Office of the

Deputy Ombudsman for Luzon issued a
Resolution dismissing the Complaint for lack of
probable cause. Then Acting Mayor Nicomedes
C. Dela Cruz (Acting Mayor Dela Cruz) moved
for reconsideration on 15 October 2003. A
Motion to Strike Out the Motion for
Reconsideration was filed by petitioner for lack
of locus standi.5 In an Order dated 13 February
2004, the Office of the Deputy Ombudsman for
Luzon denied the motion for reconsideration.
However, Deputy Ombudsman for the Military
and Other Law Enforcement Offices (MOLEO),
Orlando Casimiro, pursuant to the authority6
given by Ombudsman Simeon Marcelo,
directed the Office of Legal Affairs to review
the case. On 8 July 2004, the Office of Legal
Affairs recommended that petitioner be
indicted for technical malversation. The Office
of Legal Affairs found that while the
Sangguniang Bayan authorized the purchase of
a road grader, no sum was appropriated for its
purchase. The source of the funding of the
P670,000.00 cash advance came from the
municipalitys funds for personal services,
which were originally appropriated for salaries
of municipal employees.7
Upon receipt of the Memorandum-Resolution,
petitioner filed an Omnibus Motion (Motion for

Reconsideration with Prayer to Hold in

Abeyance the Filing of Information) citing the
failure of the 13 February 2004 Order to
consider his Motion to Strike Out the Motion for
Reconsideration filed by Acting Mayor Dela
Cruz. Petitioner also argued that not all
elements constitutive of technical malversation
were present.
On 16 February 2005, the Office of the Special
Prosecutor issued a Memorandum denying the
Omnibus Motion. A revised/modified
Information was filed with the Sandiganbayan
charging petitioner of the crime of Illegal Use of
Public Funds under Article 220 of the Revised
Penal Code, committed, thus:
That on or about 20 October 1998 and
sometime prior or subsequent thereto, in the
Municipality of Bacarra, Ilocos Norte,
Philippines, within the jurisdiction of this
Honorable Court, the accused PACIFICO C.
VELASCO, a high-ranking public official, being
then the Mayor of the aforesaid municipality
and as such is accountable for public funds
received by or entrusted to him by reason of
the duties of his office, while in the
performance and taking advantage of his
official and administrative functions, did then
and there wilfully, unlawfully and feloniously
apply or misapply the amount of SIX HUNDRED
SEVENTY THOUSAND PESOS (P670,000.00),
Philippine Currency, under his administration to
a public use other than that for which such
fund was originally appropriated by law or
ordinance, when the accused cash advanced
the said amount of SIX HUNDRED SEVENTY
THOSUAND PESOS (P670,000.00) under
Disbursement Voucher No. 101-98-10-037
which amount was appropriated or intended for
the payment of personal services for the
municipal employees of the local government
of Bacarra, particularly for their salaries, 13th
month pay and other benefits, and utilized the
said amount to purchase one (1) unit road
grader but was never recorded as property of
the above-named Municipality, and thereafter,
accused mortgaged said road grader to private
individuals without authority from the
Sangguniang Bayan of Bacarra, Ilocos Norte,
thereby resulting to the damage and
embarrassment to the public service as the
public was made to believe that the road
grader purchased by the accused was public

property for use of the municipal government

and its constituent barangays.8
On 18 March 2005, petitioner moved for a
reinvestigation of the case before the
Sandiganbayan. According to petitioner, the
Office of the Special Prosecutor, without
conducting a preliminary investigation, indicted
him not for the offense of which he was
charged but for another offense, hence
violating his right to due process.
On 9 June 2005, the Sandiganbayan issued a
Resolution denying the motion for
reinvestigation for lack of merit. The
Sandiganbayan found that petitioner had
already filed a motion for reconsideration
assailing the 8 July 2004 Memorandum. The
Sandiganbayan considered the filing of this
motion for reconsideration as compliance with
the due process requirement. The
Sandiganbayan added that since petitioner had
already filed a motion for reconsideration, he is
no longer entitled to move for a second
reconsideration pursuant to the Rules of
Procedure of the Office of the Ombudsman
which prohibits the filing of such motion. The
Sandiganbayan refuted petitioners claim that
the offenses charged against him in the
complaint are different from the offense
charged in the information. The Sandiganbayan
countered that the complaint and the
information are based on substantially the
same factual settings except that the
respective designations are different.
On 15 August 2005, the Sandiganbayan issued
a Resolution denying for lack of merit
petitioner's motion for reconsideration.
Petitioner submits in support of his petition
that:
THE RESPONDENT COURT ACTED WITHOUT
JURISDICTION OR IN EXCESS THEREOF, OR AT
THE VERY LEAST, GRAVELY ABUSED ITS
DISCRETION, IN NOT ORDERING THE
REINVESTIGATION OF THE CASE OR, TO BE
MORE PRECISE, A PRELIMINARY
INVESTIGATION, AFTER THE OFFICE OF THE
SPECIAL PROSECUTOR FILED AN INFORMATION
AGAINST THE HEREIN PETITIONER BASED ON A
MOTION FOR RECONSIDERATION FILED, NOT BY
THE COMPLAINANT THEREIN, BUT BY ANOTHER

PERSON WHO IS NOT A PARTY AND

THEREFORE, A STRANGER IN THE CASE, AND
THEREAFTER, INSTEAD OF MERELY ACTING
ONLY ON THE ISSUES AND GROUNDS RAISED IN
THE SAID MOTION, THE OFFICE OF THE
SPECIAL PROSECUTOR, WITHOUT CONDUCTING
A PRELIMINARY INVESTIGATION ON THE
PURPORTED OFFENSE OF WHICH THE HEREIN
PETITIONER IS NOW INDICTED, ISSUED
INSTEAD, THE MEMORANDUM DATED
FEBRUARY 16, 2005, WHICH NOW INDICTS THE
HEREIN PETITIONER NOT FOR THE OFFENSE OF
WHICH HE IS CHARGED BUT FOR ANOTHER
OFFENSE, THEREBY BLATANTLY VIOLATING THE
PETITIONERS SUBSTANTIAL RIGHT TO DUE
PROCESS, RENDERING THE RESPONDENT
COURTS ASSAILED RESOLUTIONS AS NULL
AND VOID.9
Petitioner, in the main, assails the denial of his
motion for reinvestigation on two (2) grounds:
1) he was denied the right to file a motion for
reconsideration of the 16 February 2005 Office
of the Special Prosecutors Memorandum,
recommending his indictment for Technical
Malversation under Article 220 of the Revised
Penal Code, and 2) he was indicted for an
offense that was not originally charged in the
criminal complaint against him.10
We briefly review the material facts. A
complaint for malversation and violation of the
Anti-Graft and Corrupt Practices Act was filed
by then Mayor Philip Velasco against former
Mayor Pacifico Velasco, now petitioner. The
Office of the Deputy Ombudsman for Luzon
dismissed the complaint for lack of probable
cause. Then Acting Mayor Dela Cruz moved for
reconsideration. Petitioner filed a motion to
strike out the pleading grounded on the lack of
legal personality of Acting Mayor Dela Cruz to
file the motion. The Office of the Deputy
Ombudsman for Luzon eventually denied the
motion for reconsideration. However, upon
instructions of the Deputy Ombudsman for
MOLEO, the Director of the Office of Chief Legal
Counsel, after reviewing the case,
recommended the filing of an Information for
Technical Malversation. Petitioner, thus, filed an
Omnibus Motion for Reconsideration. The Office
of the Special Prosecutor denied petitioners
motion and filed the Information for technical
malversation before the Sandiganbayan.

Indeed, the recital of facts reveals that

petitioner filed a motion for reconsideration,
which he labelled as "Omnibus Motion (Motion
for Reconsideration with Prayer to Hold in
Abeyance Filing of Information)" on 15 October
2003. A perusal of the Omnibus Motion shows
that petitioner anchored his motion for
reconsideration on two (2) grounds first, the
legal incapacity of the Vice-Mayor to file a
motion for reconsideration of an earlier Order
by the Office of the Deputy Ombudsman for
Luzon, dismissing the complaint against
petitioner; and second, some elements of the
crime of technical malversation were lacking in
the complaint.
Thus, it is incorrect for petitioner to insist that
he was denied the right to file a motion for
reconsideration of the Order of the Special
Prosecutor. Records prove that it was Special
Prosecutor Dennis Villa-Ignacio who deputized
the Deputy Ombudsman for MOLEO to act on
the case with finality. Pursuant to this
authority, the Deputy Ombudsman for MOLEO
approved the Memorandum-Resolution dated 8
July 2004 indicting petitioner. Thus, this
Memorandum-Resolution proceeds from the
authority of the Special Prosecutor and is
virtually his own memorandum. So when
petitioner filed an Omnibus Motion for
Reconsideration, he was effectively appealing a
Memorandum issued by the Office of the
Special Prosecutor. The filing of another motion
for reconsideration constitutes a prohibited
pleading. Under Section 7 of the Rules of
Procedure of the Office of the Ombudsman,
"Only one motion for reconsideration or
reinvestigation of an approved order or
resolution shall be allowed,
In an apparent attempt to mislead, petitioner
brings up the alleged incapacity of Acting
Mayor Dela Cruz to file a motion for
reconsideration pertaining to the earlier 13
February 2004 Resolution which dismissed the
complaint against him. This argument cannot
prosper. The issue has already been resolved.
In fact, the Office of the Ombudsman for Luzon
dismissed the complaint against petitioner. The
purported legal incapacity of Acting Mayor Dela
Cruz, therefore, bears no relevance to the
indictment on hand. At any rate, Acting Mayor
Dela Cruz, in fact, did possess the legal
capacity to file the motion on behalf of the

local government unit he represented. Under

Section 46 of the Local Government Code, the
vice-mayor automatically assumes the powers
and duties of the mayor in case of the latters
temporary absence, thus:
SEC. 46. Temporary Vacancy in the Office of the
Local Chief Executive. - (a) When the governor,
city or municipal Mayor, or punong barangay is
temporarily incapacitated to perform his duties
for physical or legal reasons such as, but not
limited to, leave of absence, travel abroad, and
suspension from office, the vice-governor, city
or municipal vice-mayor, or the highest ranking
sangguniang barangay member shall
automatically exercise the powers and perform
the duties and functions of the local chief
executive concerned, except the power to
appoint, suspend, or dismiss employees which
can only be exercised if the period of
temporary incapacity exceeds thirty (30)
working days.
In fact, Acting Mayor Dela Cruz explained that
at that time he filed the motion, Mayor Philip
Velasco was "on official vacation leave and out
of the country."11 It is likewise incontrovertible
that Mayor Philip Velasco instituted the
complaint in his capacity as then Mayor of
Bacarra, Ilocos Norte. Petitioner premises his
challenge on legal standing on the mere failure
of the complainant to state in his complaint
that he was suing on behalf of the municipality.
His argument is specious. As correctly asserted
by Mayor Philip Velasco in his
Comment/Opposition to the Motion to Strike,
the property sought to be recovered in the
complaint will revert to the municipality and
not to him.12
We likewise find no merit in petitioner's
contention that he was deprived of due process
because while the accusation in the
information was for technical malversation, the
crime charged in the complaint was for
malversation and violation of the Anti-Graft
and Corrupt Practices Act.
The Court had the occasion to rule on this issue
in Pilapil v. Sandiganbayan.13 Petitioner therein
was accused of malversation under Article 217
of the Revised Penal Code before the
Ombudsman for failing to deliver the
ambulance that he had received on behalf of

the municipality. The complaint for

malversation was initially dismissed for lack of
probable cause, but petitioner was later on
charged for violation of Section 3(e) of the AntiGraft and Corrupt Practices Act. Petitioner
decried lack of due process because there was
no preliminary investigation conducted on the
offense of which he was being charged in the
Information. The Court held otherwise, thus:
Petitioner loses sight of the fact that
preliminary investigation is merely inquisitorial,
and it is often the only means of discovering
whether a person may be reasonably charged
with a crime, to enable the prosecutor to
prepare his complaint or information. The
preliminary designation of the offense in the
directive to file a counter-affidavit and
affidavits of one's witnesses is not conclusive.
Such designation is only a conclusion of law of
Deputy Ombudsman Domingo. The
Ombudsman is not bound by the said
qualification of the crime. Rather, he is guided
by the evidence presented in the course of a
preliminary investigation and on the basis of
which, he may formulate and designate the
offense and direct the filing of the
corresponding information. In fact, even the
designation of the offense by the prosecutor in
the information itself has been held
inconclusive, to wit:
[t]he real nature of the criminal charge is
determined not from the caption or preamble
of the information nor from the specification of
the provision of law alleged to have been
violated, they being conclusions of law, but by
the actual recital of facts in the complaint or
information . . . it is not the technical name
given by the Fiscal appearing in the title of the
information that determines the character of
the crime but the facts alleged in the body of
the Information.14
What matters is compliance with due process
during the preliminary investigation. That was
accorded to petitioner. Due process is satisfied
when the parties are afforded fair and
reasonable opportunity to explain their side of
the controversy or an opportunity to move for a
reconsideration of the action or ruling
complained of.15 As aptly pointed out by the
Court of Appeals, "Mr. Velasco was properly
informed of the acts for which he was being

investigated and later charged. He participated

actively in the preliminary investigation and in
fact, was given ample opportunity to buttress
the allegations against him when he filed his
counter-affidavit and submitted evidence on his
behalf."16 Upon issuance of the Memorandum
indicting petitioner, petitioner even filed the
corresponding motion for
reconsideration.1wphi1 Thus, petitioner was
given all avenues to present his side and refute
all allegations against him. He was accorded,
and he availed of, due process.
After the preliminary investigation compliant
with due process, the Ombudsman, guided by
the evidence presented during the preliminary
investigation formulates and designates the
offense. The Ombudsman did so in this case.
The formulation of the offense depends on the
evidence presented, not on the conclusionary
designation in the complaint.
In all, we see no grave abuse of discretion on
the part of the Sandiganbayan in denying the
motion for reinvestigation.
WHEREFORE, the instant petition for certiorari
is DISMISSED for lack of merit.
G.R. No. 188500

July 24, 2013

PROVINCE OF CAGAYAN, represented by

HON. ALVARO T. ANTONIO, Governor, and
ROBERT ADAP, Environmental and Natural
Resources Officer, Petitioners,
vs.
JOSEPH LASAM LARA, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
This is a direct recourse to the Court from the
Decision1 of the Regional Trial Court of
Tuguegarao City, Cagayan, Branch 5 (RTC),
through a petition for review on certiorari2
under Rule 45 of the Rules of Court, raising a
pure question of law. In particular, petitioners
assail the RTC's June 30, 2009 Decision in Civil
Case No. 7077, enjoining them from disturbing
the quarrying operations of respondent Joseph
Lasam Lara (Lara).

The Facts
On September 14, 2007, Lara obtained an
Industrial Sand and Gravel Permit3 (ISAG
Permit) from the Mines and Geosciences
Bureau (MGB) of the Department of
Environment and Natural Resources (DENR),
authorizing him to conduct quarrying
operations in a twenty-hectare area situated in
Barangay Centro, Muncipality of Peablanca
(Peablanca), Cagayan (Permit Area) and
extract and dispose of sand, gravel, and other
unconsolidated materials from the Permit Area.
For the same purpose, Lara obtained an
Environmental Compliance Certificate4 (ECC)
from the DENR Environmental Management
Bureau (EMB).5
On January 3, 2008, Jovy Balisi (Balisi), Laras
representative, went to the Cagayan Provincial
Treasurers Office (Treasurers Office) to pay the
extraction fee and other fees for Laras
quarrying operations but she was directed to
first secure an Order of Payment from the
Environmental and Natural Resources Officer,
petitioner Robert Adap (ENRO Adap). However,
when Balisi went to ENRO Adap, the latter
refused to issue an Order of Payment. Despite
various pleas from Balisi and Atty. Victorio N.
Casauay (Atty. Casauay), Laras counsel, ENRO
Adap remained adamant with his refusal. This
prompted Atty. Casauay to tender and deposit
the amount of P51,500.00 with the Treasurers
Office corresponding to the said extraction fee
and other related fees.6
On January 11, 2008, Lara commenced his
quarrying operations. Later that day, however,
a total of four trucks loaded with sand and
gravel extracted from the Permit Area were
stopped and impounded by several local
officials.7 Consequently, Lara filed an action for
injunction with prayer for the issuance of a writ
of preliminary injunction, docketed as Civil
Case No. 7049, against the said officials,
seeking to enjoin the stoppage of his quarrying
operations. After due proceedings, a writ of
preliminary injunction was issued enabling Lara
to restart his business.8
Nonetheless, on March 17, 2008, Lara received
a Stoppage Order9 dated March 13, 2008
(Stoppage Order) this time from Cagayan
Governor Alvaro T. Antonio (Gov. Antonio),

directing him to stop his quarrying operations

for the following reasons: (a) the ISAG Permit
was not in accordance with Republic Act No.
(RA) 7942,10 otherwise known as the
"Philippine Mining Act of 1995," and its
implementing rules and regulations; (b) Laras
failure to pay sand and gravel fee under
Provincial Ordinance No. 2005-07; and (c)
Laras failure to secure all necessary permits or
clearances from the local government unit
concerned as required by the ECC.11 Hence,
Lara filed the present action for injunction and
damages with an urgent and ex-parte motion
for the issuance of a temporary restraining
order and/or preliminary injunction before the
RTC, docketed as Civil Case No. 7077.
In their Answer dated June 10, 2008,
petitioners raised the following defenses: (a)
the mere issuance of the ISAG Permit does not
give Lara the right to commence his quarrying
operations as he still had to comply with the
terms and conditions stated therein; (b) Lara
has neither secured all the necessary permits
nor paid the local fees and taxes; and (c) Gov.
Antonio was merely performing his duty to
enforce all laws and ordinances relative to the
governance of the Province of Cagayan
pursuant to the provisions of RA 7160,12
otherwise known as the "Local Government
Code of 1991."13
In an Order14 dated August 11, 2008, the RTC
granted Laras application for a writ of
preliminary injunction based on a prima facie
finding that he is authorized to extract gravel
and sand from the Permit Area. Petitioners filed
a motion for reconsideration15 which was,
however denied on September 26, 2008.16
During the pre-trial, the parties stipulated on
the following facts: (a) that Lara was able to
secure an ISAG Permit from the MGB and an
ECC from the DENR-EMB; (b) that Lara
deposited the amount of P51,500.00 with the
Treasurers Office for the extraction and other
related fees; and (c) that Gov. Antonio issued a
Stoppage Order directing Lara to stop the
quarrying operations in the Permit Area. The
parties also determined that the submission of
documentary evidence would be sufficient to
reach a decision and as such, the RTC directed
them to simultaneously file their respective
memoranda.17

The RTC Ruling

In a Decision18 dated June 30, 2009, the RTC
made permanent the writ of preliminary
injunction and thus, enjoined petitioners from
stopping or disturbing Laras quarrying
operations.
It held that Lara legally acquired the right to
operate his quarrying business, as evidenced
by the ISAG Permit and ECC issued by the MGB
and the EMB, respectively, which are the
government agencies tasked to grant or deny
any application for quarrying of industrial sand
and gravel.19 In this regard, the RTC observed
that if Gov. Antonio perceived any defect in
Laras ISAG Permit, the proper recourse would
have been to bring the matter to the attention
of the MGB and not to issue a Stoppage
Order.20 It further noted that Lara could not
pay the extraction and other related fees only
because ENRO Adap adamantly refused to
issue an Order of Payment. In this relation, the
RTC concluded that there was substantial
compliance with the requirements since Lara,
in good faith, tendered and deposited the
amount of P51,500.00 with the Treasurers
Office, which can be treated as Laras payment
of the pertinent fees.21 Finally, the RTC found
no need to touch on the necessity of securing a
mayors permit before starting his quarrying
operations, given that it is the main issue in
another case, Civil Case No. 7049, pending
before the same court.22
Aggrieved, petitioners sought direct recourse
to the Court via the instant petition.

him to extract sand and gravel from the Permit

Area, as evidenced by the ISAG Permit and
ECC, thereby dispensing with the need to
secure any permit from the local government.
In any case, he contends that the only reason
why he failed to secure such permits was
because the local government officials
deliberately refused to process his applications
without any legitimate reason whatsoever.24
The Courts Ruling
The petition is meritorious.
It is well-settled that a writ of injunction would
issue upon the satisfaction of two (2)
requisites, namely: (a) the existence of a right
to be protected; and (b) acts which are
violative of the said right. In the absence of a
clear legal right, the issuance of the injunctive
relief constitutes grave abuse of discretion.
Injunction is not designed to protect contingent
or future rights. Where the complainants right
is doubtful or disputed, injunction is not proper.
The possibility of irreparable damage without
proof of actual existing right is not a ground for
an injunction.25
In order for an entity to legally undertake a
quarrying business, he must first comply with
all the requirements imposed not only by the
national government, but also by the local
government unit where his business is situated.
Particularly, Section 138(2) of RA 716026
requires that such entity must first secure a
governors permit prior to the start of his
quarrying operations, viz:

The Issue Before the Court

SECTION 138. Tax on Sand, Gravel and Other

Quarry Resources.

The primordial issue raised for the Courts

resolution is whether the RTC properly issued
the permanent injunction subject of this case.

x x x.

Among others, petitioners argue that despite

the issuance of the ISAG Permit, Lara has yet to
comply with its terms and conditions as he
has yet to secure the necessary permits and
clearances from the local government unit
concerned and hence, remains to be
proscribed from conducting any quarrying
operations.23
On the other hand, Lara maintains that the
MGB and DENR-EMB had already authorized

The permit to extract sand, gravel and other

quarry resources shall be issued exclusively by
the provincial governor, pursuant to the
ordinance of the sangguniang panlalawigan.
(Emphasis and underscoring supplied)
xxxx
In connection thereto, the Sangguniang
Panlalawigan of Cagayan promulgated
Provincial Ordinance No. 2005-07, Article H,
Section 2H.04 of which provides:

SECTION 2H.04. Permit for Gravel and Sand

Extraction and Quarrying. No person shall
extract ordinary stones, gravel, earth, boulders
and quarry resources from public lands or from
the beds of seas, rivers, streams, creeks or
other public waters unless a permit has been
issued by the Governor (or his deputy as
provided herein) x x x. (Emphasis and
underscoring supplied)
A plain reading of the afore-cited provisions
clearly shows that a governors permit is a prerequisite before one can engage in a quarrying
business in Cagayan. Records, however, reveal
that Lara admittedly failed to secure the same;
hence, he has no right to conduct his quarrying
operations within the Permit Area.
Consequently, he is not entitled to any
injunction.
In view of the foregoing, the Court need not
delve into the issue respecting the necessity of
securing a mayors permit, especially since it is
the main issue in another case, Civil Case No.
7049, which remains pending before the court
a quo.
WHEREFORE, the petition is GRANTED.
Accordingly, the June 30, 2009 Decision of the
Regional Trial Court of Tuguegarao City,
Cagayan, Branch 5 in Civil Case No. 7077 is
hereby REVERSED and SET ASIDE.
G.R. No. 195770

July 17, 2012

AQUILINO Q. PIMENTEL, JR., SERGIO

TADEO and NELSON ALCANTARA,
Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N.
OCHOA and SECRETARY CORAZON
JULIANO-SOLIMAN OF THE DEPARTMENT
OF SOCIAL WELFARE and DEVELOPMENT
(DSWD), Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case

For the Courts consideration in this Petition for

Certiorari and Prohibition is the
constitutionality of certain provisions of
Republic Act No. 10147 or the General
Appropriations Act (GAA) of 20111 which
provides a P21 Billion budget allocation for the
Conditional Cash Transfer Program (CCTP)
headed by the Department of Social Welfare &
Development (DSWD). Petitioners seek to
enjoin respondents Executive Secretary Paquito
N. Ochoa and DSWD Secretary Corazon JulianoSoliman from implementing the said program
on the ground that it amounts to a
"recentralization" of government functions that
have already been devolved from the national
government to the local government units.
The Facts
In 2007, the DSWD embarked on a poverty
reduction strategy with the poorest of the poor
as target beneficiaries.2 Dubbed "Ahon
Pamilyang Pilipino," it was pre-pilot tested in
the municipalities of Sibagat and Esperanza in
Agusan del Sur; the municipalities of Lopez
Jaena and Bonifacio in Misamis Occidental, the
Caraga Region; and the cities of Pasay and
Caloocan3 upon the release of the amount of
P50 Million Pesos under a Special Allotment
Release Order (SARO) issued by the
Department of Budget and Management.4
On July 16, 2008, the DSWD issued
Administrative Order No. 16, series of 2008
(A.O. No. 16, s. 2008),5 setting the
implementing guidelines for the project
renamed "Pantawid Pamilyang Pilipino
Program" (4Ps), upon the following stated
objectives, to wit:
1. To improve preventive health care of
pregnant women and young children
2. To increase enrollment/attendance of
children at elementary level
3. To reduce incidence of child labor
4. To raise consumption of poor households on
nutrient dense foods
5. To encourage parents to invest in their
children's (and their own) future

6. To encourage parent's participation in the

growth and development of young children, as
well as involvement in the community.6
This government intervention scheme, also
conveniently referred to as CCTP, "provides
cash grant to extreme poor households to allow
the members of the families to meet certain
human development goals."7

identifying specific roles and functions in order

to ensure effective and efficient
implementation of the CCTP. As the DSWD
takes on the role of lead implementing agency
that must "oversee and coordinate the
implementation, monitoring and evaluation of
the program," the concerned LGU as partner
agency is particularly tasked to
a. Ensure availability of the supply side on
health and education in the target areas.

Eligible households that are selected from

priority target areas consisting of the poorest
provinces classified by the National Statistical
Coordination Board (NCSB)8 are granted a
health assistance of P500.00/month, or
P6,000.00/year, and an educational assistance
of P300.00/month for 10 months, or a total of
P3,000.00/year, for each child but up to a
maximum of three children per family.9 Thus,
after an assessment on the appropriate
assistance package, a household beneficiary
could receive from the government an annual
subsidy for its basic needs up to an amount of
P15,000.00, under the following
conditionalities:
a) Pregnant women must get pre natal care
starting from the 1st trimester, child birth is
attended by skilled/trained professional, get
post natal care thereafter
b) Parents/guardians must attend family
planning sessions/mother's class, Parent
Effectiveness Service and others
c) Children 0-5 years of age get regular
preventive health check-ups and vaccines
d) Children 3-5 years old must attend day care
program/pre-school
e) Children 6-14 years of age are enrolled in
schools and attend at least 85% of the time10

Under A.O. No. 16, s. 2008, the DSWD also

institutionalized a coordinated inter-agency
network among the Department of Education
(DepEd), Department of Health (DOH),
Department of Interior and Local Government
(DILG), the National Anti-Poverty Commission
(NAPC) and the local government units (LGUs),

b. Provide necessary technical assistance for

Program implementation
c. Coordinate the
implementation/operationalization of sectoral
activities at the City/Municipal level to better
execute Program objectives and functions
d. Coordinate with various concerned
government agencies at the local level,
sectoral representatives and NGO to ensure
effective Program implementation
e. Prepare reports on issues and concerns
regarding Program implementation and submit
to the Regional Advisory Committee, and
f. Hold monthly committee meetings11
A Memorandum of Agreement (MOA)12
executed by the DSWD with each participating
LGU outlines in detail the obligation of both
parties during the intended five-year
implementation of the CCTP.
Congress, for its part, sought to ensure the
success of the CCTP by providing it with
funding under the GAA of 2008 in the amount
of Two Hundred Ninety-Eight Million Five
Hundred Fifty Thousand Pesos
(P298,550,000.00). This budget allocation
increased tremendously to P5 Billion Pesos in
2009, with the amount doubling to P10 Billion
Pesos in 2010. But the biggest allotment given
to the CCTP was in the GAA of 2011 at Twenty
One Billion One Hundred Ninety-Four Million
One Hundred Seventeen Thousand Pesos
(P21,194,117,000.00).131wphi1

Petitioner Aquilino Pimentel, Jr., a former

Senator, joined by Sergio Tadeo, incumbent

President of the Association of Barangay

Captains of Cabanatuan City, Nueva Ecija, and
Nelson Alcantara, incumbent Barangay Captain
of Barangay Sta. Monica, Quezon City,
challenges before the Court the disbursement
of public funds and the implementation of the
CCTP which are alleged to have encroached
into the local autonomy of the LGUs.
The Issue
THE P21 BILLION CCTP BUDGET ALLOCATION
UNDER THE DSWD IN THE GAA FY 2011
VIOLATES ART. II, SEC. 25 & ART. X, SEC. 3 OF
THE 1987 CONSTITUTION IN RELATION TO SEC.
17 OF THE LOCAL GOVERNMENT CODE OF
1991 BY PROVIDING FOR THE
RECENTRALIZATION OF THE NATIONAL
GOVERNMENT IN THE DELIVERY OF BASIC
SERVICES ALREADY DEVOLVED TO THE LGUS.
Petitioners admit that the wisdom of adopting
the CCTP as a poverty reduction strategy for
the Philippines is with the legislature. They take
exception, however, to the manner by which it
is being implemented, that is, primarily
through a national agency like DSWD instead of
the LGUs to which the responsibility and
functions of delivering social welfare,
agriculture and health care services have been
devolved pursuant to Section 17 of Republic
Act No. 7160, also known as the Local
Government Code of 1991, in relation to
Section 25, Article II & Section 3, Article X of
the 1987 Constitution.
Petitioners assert that giving the DSWD full
control over the identification of beneficiaries
and the manner by which services are to be
delivered or conditionalities are to be complied
with, instead of allocating the P21 Billion CCTP
Budget directly to the LGUs that would have
enhanced its delivery of basic services, results
in the "recentralization" of basic government
functions, which is contrary to the precepts of
local autonomy and the avowed policy of
decentralization.
Our Ruling

The Constitution declares it a policy of the

State to ensure the autonomy of local
governments14 and even devotes a full article
on the subject of local governance15 which
includes the following pertinent provisions:

Section 3. The Congress shall enact a local

government code which shall provide for a
more responsive and accountable local
government structure instituted through a
system of decentralization with effective
mechanisms of recall, initiative, and
referendum, allocate among the different local
government units their powers, responsibilities,
and resources, and provide for the
qualifications, election, appointment and
removal, term, salaries, powers and functions
and duties of local officials, and all other
matters relating to the organization and
operation of the local units.

xxx

Section 14. The President shall provide for

regional development councils or other similar
bodies composed of local government officials,
regional heads of departments and other
government offices, and representatives from
non-governmental organizations within the
regions for purposes of administrative
decentralization to strengthen the autonomy of
the units therein and to accelerate the
economic and social growth and development
of the units in the region. (Underscoring
supplied)
In order to fully secure to the LGUs the genuine
and meaningful autonomy that would develop
them into self-reliant communities and
effective partners in the attainment of national
goals,16 Section 17 of the Local Government
Code vested upon the LGUs the duties and
functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to
be self-reliant and shall continue exercising the

powers and discharging the duties and

functions currently vested upon them. They
shall also discharge the functions and
responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local
government units shall likewise exercise such
other powers and discharge such other
functions and responsibilities as are necessary,
appropriate, or incidental to efficient and
effective provision of the basic services and
facilities enumerated herein.

(b) Such basic services and facilities include,

but are not limited to, x x x.

While the aforementioned provision charges

the LGUs to take on the functions and
responsibilities that have already been
devolved upon them from the national
agencies on the aspect of providing for basic
services and facilities in their respective
jurisdictions, paragraph (c) of the same
provision provides a categorical exception of
cases involving nationally-funded projects,
facilities, programs and services, thus:
(c) Notwithstanding the provisions of
subsection (b) hereof, public works and
infrastructure projects and other facilities,
programs and services funded by the National
Government under the annual General
Appropriations Act, other special laws,
pertinent executive orders, and those wholly or
partially funded from foreign sources, are not
covered under this Section, except in those
cases where the local government unit
concerned is duly designated as the
implementing agency for such projects,
facilities, programs and services. (Underscoring
supplied)
The essence of this express reservation of
power by the national government is that,
unless an LGU is particularly designated as the
implementing agency, it has no power over a
program for which funding has been provided
by the national government under the annual
general appropriations act, even if the program
involves the delivery of basic services within
the jurisdiction of the LGU.

The Court held in Ganzon v. Court of Appeals17

that while it is through a system of
decentralization that the State shall promote a
more responsive and accountable local
government structure, the concept of local
autonomy does not imply the conversion of
local government units into "mini-states."18
We explained that, with local autonomy, the
Constitution did nothing more than "to break
up the monopoly of the national government
over the affairs of the local government" and,
thus, did not intend to sever "the relation of
partnership and interdependence between the
central administration and local government
units."19 In Pimentel v. Aguirre,20 the Court
defined the extent of the local government's
autonomy in terms of its partnership with the
national government in the pursuit of common
national goals, referring to such key concepts
as integration and coordination. Thus:
Under the Philippine concept of local
autonomy, the national government has not
completely relinquished all its powers over
local governments, including autonomous
regions. Only administrative powers over local
affairs are delegated to political subdivisions.
The purpose of the delegation is to make
governance more directly responsive and
effective at the local levels. In turn, economic,
political and social development at the smaller
political units are expected to propel social and
economic growth and development. But to
enable the country to develop as a whole, the
programs and policies effected locally must be
integrated and coordinated towards a common
national goal. Thus, policy-setting for the entire
country still lies in the President and Congress.
Certainly, to yield unreserved power of
governance to the local government unit as to
preclude any and all involvement by the
national government in programs implemented
in the local level would be to shift the tide of
monopolistic power to the other extreme,
which would amount to a decentralization of
power explicated in Limbona v. Mangelin21 as
beyond our constitutional concept of
autonomy, thus:
Now, autonomy is either decentralization of
administration or decentralization of
power.1wphi1 There is decentralization of
administration when the central government

delegates administrative powers to political

subdivisions in order to broaden the base of
government power and in the process to make
local governments more responsive and
accountable and ensure their fullest
development as self-reliant communities and
make them more effective partners in the
pursuit of national development and social
progress. At the same time, it relieves the
central government of the burden of managing
local affairs and enables it to concentrate on
national concerns. The President exercises
general supervision over them, but only to
ensure that local affairs are administered
according to law. He has no control over their
acts in the sense that he can substitute their
judgments with his own.
Decentralization of power, on the other hand,
involves an abdication of political power in the
[sic] favor of local governments [sic] units
declared to be autonomous. In that case, the
autonomous government is free to chart its
own destiny and shape its future with minimum
intervention from central authorities. According
to a constitutional author, decentralization of
power amounts to self-immolation, since in
that event, the autonomous government
becomes accountable not to the central
authorities but to its constituency.22

Indeed, a complete relinquishment of central

government powers on the matter of providing
basic facilities and services cannot be implied
as the Local Government Code itself weighs
against it. The national government is, thus,
not precluded from taking a direct hand in the
formulation and implementation of national
development programs especially where it is
implemented locally in coordination with the
LGUs concerned.
Every law has in its favor the presumption of
constitutionality, and to justify its nullification,
there must be a clear and unequivocal breach
of the Constitution, not a doubtful and
argumentative one.23 Petitioners have failed to
discharge the burden of proving the invalidity
of the provisions under the GAA of 2011. The
allocation of a P21 billion budget for an
intervention program formulated by the
national government itself but implemented in
partnership with the local government units to
achieve the common national goal
development and social progress can by no
means be an encroachment upon the
autonomy of local governments.
WHEREFORE, premises considered, the petition
is hereby DISMISSED.
SO ORDERED.