April 8, 2003

DILG OPINION NO. 038-03

Messrs. Edgardo P. Yambao Et Al.

Sangguniang Panlalawigan Members
Province of Pampanga

Gentlemen :

This pertains to your letter seeking our opinion concerning the proper
implementation of a preventive suspension against a Municipal Mayor facing an
administrative charge before the Sangguniang Panlalawigan.

As per your attached documents, the Sangguniang Panlalawigan of Pampanga

issued an Order dated 09 September 2002 placing Mayor Edgardo G. Flores of the
Municipality of Minalin under preventive suspension for a period not exceeding sixty
(60) days in connection with Administrative Case No. 02-2001 for Violation of
Section 60 of the Local Government Code entitled: "Councilors Vanzalon F. Tizon et
al. v. Mayor Edgardo G. Flores". In the said Order, Governor Manuel Lapid was
tasked by the Sangguniang Panlalawigan to implement the same.

Relative thereto, you raise the following queries, to wit:

5. "Can the Governor just sit without action on the said Order of the
Sangguniang Panlalawigan?

6. Can the Governor just ignore the said Order without any action in
writing?

7. Is the Governor liable for his non-action on the said Order?

8. Can the Governor be compelled to act by way of mandamus?"

At the outset, it is worthy to emphasize that administrative disciplinary action

against local elective officials, Sections 61 and 63 of the Local Government Code of
1991 (RA 7160) respectively provide, in so far as pertinent, that:

"Sec. 61. Form and Filing of Administrative Complaints. — A

verified complaint against any erring local elective official shall be prepared as

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 follows:

xxx xxx xxx

(c) A complaint against any elective official of the municipality shall

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

"Sec. 63. Preventive Suspension. — (a)Preventive suspension may

be imposed:

xxx xxx xxx

(3) by the governor, if the respondent is an elective official of a

component city or municipality;

xxx xxx xxx

(b) Preventive suspension may be imposed at any time after the issues
are joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and others evidence. . . "

As aforequoted, a verified complaint against any erring municipal elective

official shall be filed before the sangguniang panlalawigan. After the issues are joined
and when the evidence of guilt is strong and, given the gravity of the offense, there is
great probability that the continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records and other evidence,
preventive suspension may then be imposed by the Governor as a preliminary step in
the administrative investigation. AHCcET

Since a complaint against an erring municipal elective official is to be filed

before the Sangguniang Panlalawigan, it follows that the provincial board has the
power to investigate, hear and decide cases brought before it for adjudication. The
power to investigate, on the other hand, involves the reception of evidence,
ascertaining therefrom the facts of a controversy and making factual conclusions in
such controversies, accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined
authoritatively, finally and definitely, subject to such appeals or modes of review as
may be provided by law (Cariño vs. Commission on Human Rights, 204 SCRA 463).

It may thus be inferred therefrom that preventive suspension is an incident to

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 jurisdiction and/or a tool for the disciplining authority to make use of in the course of
its administrative investigation. It is in this context that we have to distinguish
between "determination" and "imposition", the latter being the function of the
Governor while the former is the concern of the sanggunian. This being so, since the
disciplining and investigating authority over erring municipal elective officials is the
Sangguniang Panlalawigan it follows therefore, that it has the sole power and
discretion to determine whether or not preventive suspension so warrants.

It has to be noted that in Buenaseda vs. Flavier, 226 SCRA 645, the Supreme
Court cited the earlier ruling in Nera v. Garcia, 106 Phil. 1031, where the import of
the .decision therein is that where strong evidence of guilt is a requisite in preventive
suspension, the disciplining authority is given the discretion to decide when the
evidence of guilt is strong. There may exist honest differences of opinion with regard
to the seriousness of the charges or as to whether they warrant disciplinary action.
However, as a general rule, the office or body that is invested with the power of
removal or suspension should be the sole judge of the necessity and sufficiency of the
cause (Melgar v. Espiritu, 206 SCRA 256).

It may be further observed that the opening phrase of Section 63 of the Code,
i.e., "preventive suspension may be imposed", the word "MAY" was used which,
generally in statutory construction, may be taken to mean as permissive and not
mandatory. This rule is not, however, absolute. In our jurisdiction, the basic canon of
statutory interpretation is that where the statute provides for the doing of some act
which is required by justice or public duty, or where it invests a public body,
municipality or public officer with power and authority to take some action which
concerns the public interest or rights of individuals, the permissive language will be
construed as mandatory and the execution of the power may be insisted upon as a
duty (De Mesa vs. Mencias, 18 SCRA 542).

The question in each case is whether, taken as a whole and viewed in the light
of surrounding circumstances, it can be said that a purpose existed on the part of the
legislator to enact a law mandatory in character. If it can, then it should be given a
mandatory effect; if not, then it should be given its ordinary permissive effect (In re:
Guarina, 24 Phil 41.).

Accordingly, it would be at the height of absurdity for the Sangguniang

Panlalawigan having acquired jurisdiction to receive and investigate administrative
complaints against municipal elective officials and thereafter abdicate itself of the
power to impose preventive suspension in favor of the Governor who may or may not
concur with the preliminary results of the investigation, according to his whims and
caprices and despite the sanggunian's initial findings of the existence of all the
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 elements which warrant the imposition thereof.

Such practice would thus render nugatory the law vesting jurisdiction upon the
Sangguniang Panlalawigan the power to investigate, hear and decide administrative
complaints. It would be inconsistent with the essence of jurisdiction which is the
authority to hear and decide a case. Well settled is the rule that statutes are to be
construed in the light of the purposes to be achieved and the evils sought to be
remedied.

We, therefore, have to consider the spirit and reason of the statute where a
literal meaning would lead to absurdity, contradiction, injustice, or would defeat the
clear purpose of the lawmakers. There further exists a valid presumption that
undesirable consequences were never intended by a legislative measure and that a
construction of which the statute is fairly susceptible is favored to avoid all
objectionable, mischievous, indefensible, wrongful, evil and injurious consequences
(Ursua vs. Court of Appeals, 255 SCRA 147, April 10, 1996).

In fine, as to whether or not the power to impose preventive suspension is a

ministerial or discretionary function on the part of the governor, we are of the
considered view that the authority of the local chief executives (Governor/Mayor) to
impose preventive suspension is purely ministerial since the disciplinary authority
over erring municipal or barangay elective officials is the Sangguniang Panlalawigan,
Sangguniang Panlungsod or Sangguniang Bayan, as the case may be. Hence, after the
sanggunian shall have determined the necessity to warrant the imposition of
preventive suspension, the same only need to be implemented by the local chief
executive concerned. Moreover, the Court of Appeals ruling in the case of Gov.
Francisco T. Matugas, Petitioner versus The Honorable Floripinas C. Buyser, as
Judge of Branch 31 Regional Trial Court of Dapa, Surigao del Norte and Mayor
Alma G. Navarro, Respondents in CA-G.R. SP No. 55563 is instructive where it was
held that the authority to determine whether the evidence warrants the preventive
suspension of an elective municipal official finds support in the ruling in Espiritu vs.
Melgar that the office or body that is invested with the power of removal or
suspension should be the sole judge of the necessity and sufficiency of the cause.
Moreover, to give to the provincial governor the authority to determine whether
preventive suspension is warranted on the grounds that the evidence of guilt is strong
and given the gravity of the offense, there is great probability that the continuance in
office of the respondent could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence without prior recommendation by the
Sangguniang Panlalawigan, would constitute undue interference on the authority of
said body to investigate and discipline elective municipal officials and preempt the

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 latter's decision on the administrative case.

As such, in reply to your first and second queries, please be informed that if
the Governor is being directed by the Sanggunian to implement its order, resolution,
decision or judgment, the latter, acting as a quasi-judicial body vested with powers to
issue orders relative to the discharge of its mandated official duties and functions, the
Governor has the ministerial duty to serve the same and has no discretion to
determine the propriety of the implementation of the order, resolution or judgment or
decision. The service has to be made without unnecessary delay so that after being
duly informed of the order, respondent can immediately take steps to protect his
interests by filing an appeal or apply for other appropriate reliefs. IcADSE

In reply to your third and fourth queries, please be informed that the inaction
of the Governor of the directive of the Sangguniang Panlalawigan may give rise to a
ground for possible administrative sanction and at the same time, the Governor can be
compelled to act thereon by way of mandamus in an appropriate proceeding instituted
before the proper forum.

Hoping that we have clarified the matter.

Very truly yours,

(SGD.) EDUARDO R. SOLIMAN, JR.

Undersecretary

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