Garcia et al.

vs COMELEC
Posted by kaye lee on 10:58 AM
G.R. No. 111511 October 5, 1993 [Initiative and Referendum; Recall proceeding]

FACTS:
Enrique T. Garcia was elected governor of Bataan in the 1992 elections. Some
mayors, vice-mayors and members of the Sangguniang Bayan of the twelve (12)
municipalities of the province constituted themselves into a Preparatory Recall
Assembly to initiate the recall election of petitioner Garcia. They issued Resolution
No. 1 as formal initiation of the recall proceedings. COMELEC scheduled the
recall election for the gubernatorial position of Bataan.

Petitioners then filed a petition for certiorari and prohibition with writ of
preliminary injunction to annul the Resolution of the COMELEC because the
PRAC failed to comply with the "substantive and procedural requirement" laid
down in Section 70 of R.A. 7160 (Local Government Code 1991). They pointed
out the most fatal defect of the proceeding followed by the PRAC in passing the
Resolution: the deliberate failure to send notices of the meeting to 65 members of
the assembly.

ISSUES:
1) Whether or not the people have the sole and exclusive right to initiate recall
proceedings.
2) Whether or not the procedure for recall violated the right of elected local public
officials belonging to the political minority to equal protection of the law.

RULING:
1) No. There is nothing in the Constitution that will remotely suggest that the
people have the "sole and exclusive right to decide on whether to initiate a recall
proceeding." The Constitution did not provide for any mode, let alone a single
mode, of initiating recall elections.
The mandate given by section 3 of Article X of the Constitution is for Congress to
"enact a local government code which shall provide for a more responsive and
accountable local government structure through a system of decentralization with
effective mechanisms of recall, initiative, and referendum . . ." By this
constitutional mandate, Congress was clearly given the power to choose the
effective mechanisms of recall as its discernment dictates.
What the Constitution simply required is that the mechanisms of recall, whether
one or many, to be chosen by Congress should be effective. Using its
constitutionally granted discretion, Congress deemed it wise to enact an alternative
mode of initiating recall elections to supplement the former mode of initiation by
direct action of the people. The legislative records reveal there were two (2)
principal reasons why this alternative mode of initiating the recall process thru an
assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the
direct action of the people; and (b) to cut down on its expenses.

2) No. Under the Sec. 70 of the LGC, all mayors, vice-mayors and sangguniang
members of the municipalities and component cities are made members of the
preparatory recall assembly at the provincial level. Its membership is not
apportioned to political parties. No significance is given to the political affiliation
of its members. Secondly, the preparatory recall assembly, at the provincial level
includes all the elected officials in the province concerned. Considering their
number, the greater probability is that no one political party can control its
majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a
locally elected public official is loss of confidence of the people. The members of
the PRAC are in the PRAC not in representation of their political parties but as
representatives of the people. By necessary implication, loss of confidence cannot
be premised on mere differences in political party affiliation. Indeed, our
Constitution encourages multi-party system for the existence of opposition parties
is indispensable to the growth and nurture of democratic system. Clearly then, the
law as crafted cannot be faulted for discriminating against local officials belonging
to the minority.
Moreover, the law instituted safeguards to assure that the initiation of the recall
process by a preparatory recall assembly will not be corrupted by extraneous
influences. We held that notice to all the members of the recall assembly is a
condition sine qua non to the validity of its proceedings. The law also requires a
qualified majority of all the preparatory recall assembly members to convene in
session and in a public place. Needless to state, compliance with these
requirements is necessary, otherwise, there will be no valid resolution of recall
which can be given due course by the COMELEC.
Joson v. Executive Secretary [G.R. No. 131255. May 20, 1998]
08Aug

FACTS

Petitioner Governor Joson was filed a complaint before the Office of the President for barging
violently into the session hall of the Sangguniang Panlalawigan in the company of armed men.
The case was endorsed to the DILG. For failure to file an answer after three (3) extensions,
petitioner was declared in default and ordered the petitioner 60-day preventive suspension.
Petitioner later Motion to Conduct Formal Investigation. DILG denied the motion declaring
that the submission of position papers substantially complies with the requirements of procedural
due process in administrative proceedings. Later, the Executive Secretary, by authority of the
President, adopted the findings and recommendation of the DILG Secretary. The former
imposed on petitioner the penalty of suspension from office for six (6) months without pay.

ISSUES

Whether or not:

(a) Preventive suspension is proper;

(b) Procedural due process is violated;

(c) The resolution of DILG Secretary is invalid on the ground of undue

RULING

(a) Yes. Preventive suspension may be imposed by the Disciplining Authority at any time (a)
after the issues are joined; (b) when the evidence of guilt is strong; and (c) given the gravity of
the offense, there is great probability that the respondent, who continues to hold office, could
influence the witnesses or pose a threat to the safety and integrity of the records and other
evidence. The act of respondent in allegedly barging violently into the session hall of the
Sangguniang Panlalawigan in the company of armed men constitutes grave misconduct. The
allegations of complainants are bolstered by the joint-affidavit of two (2) employees of the
Sangguniang Panlalawigan. Respondent who is the chief executive of the province is in a
position to influence the witnesses. Further, the history of violent confrontational politics in the
province dictates that extreme precautionary measures be taken.

(b) Yes. The rejection of petitioners right to a formal investigation denied him procedural due
process. Section 5 of A. O. No. 23 provides that at the preliminary conference, the Investigating
Authority shall summon the parties to consider whether they desire a formal investigation. This
provision does not give the Investigating Authority the discretion to determine whether a formal
investigation would be conducted. The records show that petitioner filed a motion for formal
investigation. There is nothing in the Local Government Code and its Implementing Rules and
Regulations nor in A.O. No. 23 that provide that administrative cases against elective local
officials can be decided on the basis of position papers. A.O. No. 23 states that the Investigating
Authority may require the parties to submit their respective memoranda but this is only after
formal investigation and hearing.

(c) No. The DILG resolution is valid. The President remains the Disciplining Authority. What
is delegated is the power to investigate, not the power to discipline. The power to discipline
evidently includes the power to investigate. As the Disciplining Authority, the President has the
power derived from the Constitution itself to investigate complaints against local government
officials. A. O. No. 23, however, delegates the power to investigate to the DILG or a Special
Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue
delegation, contrary to petitioner Josons claim.

Under the doctrine of qualified political agency which recognizes the establishment of a
single executive, all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the Constitution or law
to act in person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief
Executive presumptively the acts of the Chief Executive.

This doctrine is corollary to the control power of the President provided in the Constitution.
Control is said to be the very heart of the power of the presidency. As head of the Executive
Department, the President, however, may delegate some of his powers to the Cabinet members
except when he is required by the Constitution to act in person or the exigencies of the situation
demand that he acts personally. The members of Cabinet may act for and in behalf of the
President in certain matters because the President cannot be expected to exercise his control (and
supervisory) powers personally all the time. Each head of a department is, and must be, the
Presidents alter ego in the matters of that department where the President is required by law to
exercise authority.
 Reynaldo Bayot vs
Sandiganbayan
128 SCRA 383 Criminal Law Crimes Committed By Public Officers RA 3019
Preventive Suspension Not a Penalty

Reynaldo Bayot was an auditor for the Commission on Audit. He was allegedly involved in
certain anomalous transactions while serving as such hence in 1978, he was charged with
32 cases of Estafa thru Falsification of Public Documents before the Sandiganbayan.

In 1980, he won as the mayor of Amadeo, Cavite.

In 1982, while serving as mayor and while his estafa cases were pending Batas Pambansa
Blg. 195 was passed which amended Republic Act No. 3019 (The Anti-Graft and Corrupt
Practices Act). The amendment provided that incumbent public officers facing graft cases
shall be suspended from office. Pursuant thereto, the Sandiganbayan ordered the
suspension of Bayot as the mayor of Amadeo.

ISSUE: Whether or not the suspension under RA 3019 is a penalty hence an ex post facto
law.

HELD: No. The preventive suspension provided in RA 3019 as amended shall not be
considered as a penalty. It is not a penalty because it is not imposed as a result of judicial
proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement
and to the salaries and benefits which he failed to receive during suspension.
Lapid vs CA
Posted on October 3, 2012 by Sheree Tampus

GR 142261
June 29, 2000

Facts:
Gov.Manuel Lapid & 5 other government officials were charged with alleged dishonesty,
grave misconduct and conduct prejudicial to the best interest of the service for allegedly
having conspired among themselves in demanding & collecting from various quarrying
operators in Pampanga a control fee, control slip, or monitoring fee of P120 per truckload of
sand, gravel or other quarry material, without a duly enacted provincial ordinance
authorizing the collection thereof and without issuing receipts for such collection.
The Ombudsman rendered a decision finding petitioner guilty for misconduct, which meted
out the penalty of 1yr suspension without pay pursuant to Sec.25(2) of RA 6770
(Ombudsman Act of 1989).
The DILG implemented the said Ombudsman decision.
Proceeding from the premise that the Ombudsman decision had not yet become final,
petitioner argued that writs of prohibition & mandamus may be issued against the DILG for
prematurely implementing the assailed decision.

Issue:
WON the Ombudsmans Decision finding petitioner administratively liable for misconduct &
imposing upon him a penalty of 1yr suspension without pay is immediately executory
pending appeal.

Held:
Sec.27 of RA 6770 provides that Any order, directive or decision imposing the penalty of
public censure or reprimand, suspension of not more than one months salary shall be final
and unappealable.
The Rules of Produce of the Office of the Ombudsman likewise contains a similar provision.
Section 7, Rule III of the said Rules provides: where the respondent is absolved of the
charge and in case of conviction where the penalty imposed is public censure or reprimand,
suspension of not more than one month, or a fine where the penalty imposed is public
censure or reprimand, suspension of not more than one month, or a fine not equivalent to
one month salary, the decision shall be final and unappealable. In all other cases, the
decision shall become final after the expiration of 10 days from receipt thereof by the
respondent, unless a motion for reconsideration or petition for certiorari, shall have been
filed by him as prescribed in Section 27of R.A. 6770.
The punishment imposed upon petitioner is not among those listed as final and
unappealable. The legal maxim inclusion unius est exclusio alterus finds application. The
express mention of the things included excludes those that are not included. The clear
import of these statements taken together is that all other decisions of the Office of the
Ombudsman which impose penalties not enumerated in the said section are not final,
unappealable and immediately executory. An appeal timely filed, such as the one filed in the
instant case, will stay the immediate implementation of the decision.
A judgment becomes final and executory by operation of law. The fact that the
Ombudsman Act gives parties the right to appeal from its decisions should generally carry
with it the stay of these decisions pending appeal. Otherwise, the essential nature of these
judgments as being appealable would be rendered nugatory.
The general rule is that judgments by lower courts or tribunals become executory only after
it has become final and executory, execution pending appeal being an exception to this
general rule.
There is no general legal principle that mandates that all decisions of quasi-judicial agencies
are immediately executory.
Where the legislature has seen fit to declare that the decision of the quasi-judicial agency is
immediately final and executory pending appeal, the law expressly so provides.
Sec. 12 of Rule 43 should therefore be interpreted as mandating that the appeal will not stay
the award, judgment,final order or resolution unless the law directs otherwise.final order or
resolution unless the law directs otherwise.
Petitioner was charged administratively before the Ombudsman and accordingly the
provisions of the Ombudsman Act should apply in his case.
It is a principle in statutory construction that where there are two statutes that apply to a
particular case, that which was specially designed for the said case must prevail over the
other. Considering however, that petitioner was charged under the Ombudsman Act, it is this
law alone which should govern his case.
It is suffice to note that the Ombudsman rules of procedure, Administrative Order No. 07,
mandate that decisions of the Office of the Ombudsman where the penalty imposed is other
than public censure or reprimand, suspension of not more than one month salary or fine
equivalent to one month salary are still appealable and hence, not final and executory.

VIRGINIA MALINAO vs. HON. LUISITO REYES, in his capacity as Governor of the
Province of Marinduque, SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and
WILFREDO RED, in his capacity as Mayor of Sta. Cruz, Marinduque
G.R. No. 117618
March 29, 1996

FACTS:
Malinao filed an administrative case against Mayor Red for abuse of authority and denial of
due process with the Sangguniang Panlalawigan of Marinduque. On August 12, 1994,
members of the Sanggunian, by a vote of 5 to 3, found Red guilty, vote signed only by
presiding chairman. On September 5, the Sanggunian, voting 7 to 2, acquitted Red of the
charges against him. This vote was embodied in a Decision which was signed by all the
members. Malinao argued that the First Sanggunian decision had already become final and
executory for failure of Red to appeal.

ISSUE:
Whether or not the second Decision is valid.

HELD:
Yes, the second decision of acquittal is valid. In any case, this issue is already moot and
academic as a result of the expiration of Reds term during which the act complained of was
allegedly committed, and further proceedings are barred by his reelection. [Sec 66(b) LGC].
Reelection abates any administrative disciplinary proceedings against the local elective
official. [Under Sec. 66 (b) of the LGC, the penalty of suspension cannot exceed the
unexpired term of the official and any administrative disciplinary proceeding against said
official is abated if in the meantime he is re-elected because such re-election is a
condonation of whatever misconduct he might have committed during his previous term. In
order to render a decision in an administrative case involving elected local officials, the
decision of the Sanggunian must be in writing, stating clearly the facts and the reasons for
such a decision.
 LLMAS VS ORBOS

Pardon Applicable to Administrative Cases

Ocampo III was the governor of Tarlac Province. Llamas together with some
other complainants filed an administrative case against Ocampo III for alleged
acts constituting graft and corruption. Ocampo III was found guilty. He was
suspended for office for 90 days hence his vice governor, Llamas, assumed
office. In not less than 30 days however, Ocampo III returned with an AO
showing that he was pardoned hence he can resume office without completing
the 90 day suspension imposed upon him.

ISSUE: Whether or not pardon is applicable to administrative cases.

HELD: The SC held that pardon is applicable to Administrative cases. The SC

DELA TORRE V. COMELEC (G.R. No. 121592; July 5, 1996)

Petitioner Rolando dela Torre was disqualified from running as mayor of Cavinti Laguna on the
ground that he was convicted of violation the Anti-Fencing Law.
 He argues that he should not be disqualified because he is serving probation of his sentence
and hence, the execution of his judgment was suspended together with all its legal
consequences.

ISSUE:

WON Dela Torre is disqualified to run for public office.

HELD:

Sec.40 of LGC provides:

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;

Moral turopitude is considered as an act of baseness, vileness, or depravity in the private duties
which a man owes his fellow men, or to society in general, contrary to the accepted and
customary rule of right and duty between man and woman or conduct contrary to justice,
honesty, modesty, or good morals.

In this case of fencing, actual knowledge by the "fence" of the fact that property received is
stolen displays the same degree of malicious deprivation of one's rightful property as that which
animated the robbery or theft which, by their very nature, are crimes of moral turpitude. Hence
Dela Torre is disqualified from seeking public office.

With regard to his argument that he is under probation, the court ruled that the legal effect of
probation is only to suspend the execution of the sentence.
Dela Torre's conviction subsists and remains totally unaffected notwithstanding the grant of
probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the
accused applies for probation, although it is not executory pending resolution of the application
for probation.

Berces, Jr. vs. Executive Secretary (G.R. No. 112099.

ACHILLES C. BERCES, SR., petitioner,

Ponente: QUIASON

FACTS:

Petitioner filed with the Sangguniang Panlalawigan two administrative cases against respondent
incumbent Mayor and obtained favorable decision suspending the latter. Respondent Mayor
appealed to the Office of the President questioning the decision and at the same time prayed for
the stay of execution in accordance with Sec. 67(b) of the Local Government Code (LGC). The
Office of the President thru the Executive Secretary directed stay of execution. Petitioner filed
a Motion for Reconsideration but was dismissed. Petitioner filed a petition for certiorari and
prohibition under Rule 65 of the Revised Rules of Court with prayer for mandatory preliminary
injunction, assailing the Orders of the Office of the President as having been issued with grave
abuses of discretion. Petitioner argued that Sec. 68 of LGC (1991) impliedly repealed Section 6
of Administrative Order No. 18 (1987).

Whether or not Sec. 68 of R.A. No. 7160 repealed Sec. 6 of Administrative Order No. 18.

HELD:

NO. Petition was dismissed. Stay of execution applied.

RATIO:
The first sentence of Section 68 merely provides that an appeal shall not prevent a decision
from becoming final or executory. As worded, there is room to construe said provision as giving
discretion to the reviewing officials to stay the execution of the appealed decision. There is
nothing to infer therefrom that the reviewing officials are deprived of the authority to order a stay
of the appealed order. If the intention of Congress was to repeal Section 6 of Administrative
Order No. 18, it could have used more direct language expressive of such intention.

An implied repeal predicates the intended repeal upon the condition that a substantial conflict
must be found between the new and prior laws. In the absence of an express repeal, a subsequent
law cannot be construed as repealing a prior law unless an irreconcible inconsistency and
repugnancy exists in the terms of the new and old laws