admin after midterms

7/31/2019 Admin After Midterms

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Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 139813 January 31, 2001

JOEL BITO-ONON, petitioner,vs.HON. JUDGE NELIA YAP FERNANDEZ, R.T.C. Br. 50 Puerto Princesa City and

Palawan, and ELEGIO QUEJANO, JR., respondents.GONZAGA-REYES,J.:

This Petition for Certiorari and Prohibition with prayer for the issuance of a temporaryrestraining order and writ of injunction seeks the reversal of the Order of the Regional TrialCourt of Palawan and Puerto Princesa City,1 Branch 50 in SPL. PROC. NO. 1056 entitled "ElegioF. Quejano, Jr., petitioner vs. Joel Bito-Onon, et. al., respondents" which denied hereinpetitioner's motion to dismiss the Petition for Review of the Resolution of the Board of ElectionSupervisors dated August 25, 1997 in case number L-10-97 filed by herein private respondentwith said court.1wphi1.nt

It appears from the records that the petitioner, Joel Bito-Onon is the duly elected BarangayChairman of Barangay Tacras, Narra, Palawan and is the Municipal Liga Chapter President forthe Municipality of Narra, Palawan. The private respondent, Elegio Quejano, Jr. on the otherhand, is the duly elected Barangay Chairman of Barangay Rizal, Magsaysay, Palawan and is the

Municipal Liga Chapter President for the Municipality of Magsaysay, Palawan. Both Onon andQuejano were candidates for the position of Executive Vice-President in the August 23, 1997election for the Liga ng Barangay Provincial Chapter of the province of Palawan. Onon wasproclaimed the winning candidate in the said election prompting Quejano to file a postproclamation protest with the Board of Election Supervisors (BES), which was decided againsthim on August 25, 1997.

Not satisfied with the decision of the BES, Quejano filed a Petition for Review of the decision ofthe BES with the Regional Trial Court of Palawan and Puerto Princesa City (RTC). On April 26,1999, Onon filed a motion to dismiss the Petition for Review raising the issue of jurisdiction.Onon claimed that the RTC had no jurisdiction to review the decisions rendered by the BES inany post proclamation electoral protest in connection with the 1997 Liga ng mga Barangayelection of officers and directors. In his motion to d ismiss, Onon claimed that the SupplementalGuidelines for the 1997 Liga ng mga Barangay election issued by the DILG on August 11, 1997in its Memorandum Circular No. 97-193, providing for review of decisions or resolutions of the

BES by the regular courts of law is an ultra viresact and is void for being issued without or inexcess of jurisdiction, as its issuance is not a mere act of supervision but rather an exercise ofcontrol over the Liga's internal organization.

On June 22, 1999, the RTC denied Onon's motion to dismiss. In its order, the RTC ratiocinatedthat the Secretary of the Department of Interior and Local Government2 is vested with thepower "to establish and prescribe rules, regulations and other issuances and implementing lawson the general supervision of local government units and the promotion of local autonomy andmonitor compliance thereof by said units."3 The RTC added that DILG Circular No. 97-193 wasissued by the DILG Secretary pursuant to his rule-making power as provided for under Section7, Chapter II, Book IV of the Administrative Code.4 Consequently, the RTC ruled that it hadjurisdiction over the petition for review filed by Quejada.5

Motion for reconsideration of the aforesaid Order was denied6 prompting the petitioner to filethe present petition wherein the following issues are raised:

A. WHETHER OR NOT THE QUESTIONED PROVISION IN MEMORANDUMCIRCULAR 97-193 WAS ISSUED BY THE DILG SECRETARY IN EXCESS OFHIS AUTHORITY.

B. WHETHER OR NOT THE RESPONDENT JUDGE COMMITTED GRAVE ABUSEOF DISCRETION IN ISSUING THE QUESTIONED ORDERS.7

In support of his petition, Onon argues that the "Supplemental Guidelines for the 1997Synchronized Election of the Provincial and Metropolitan Chapters and for the Election of theNational Chapter of the Liga ng mga Barangay" contradicts the "Implementing Rules andGuidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors"

and is therefore invalid. Onon alleges that the Liga ng mga Barangay (LIGA) is not a localgovernment unit considering that a local government unit must have its own source of income,a certain number of population, and a specific land area in order to exist or be created as such.Consequently, the DILG only has a limited supervisory authority over the LIGA. Moreover, OnonArgues that even if the DILG has supervisory authority over the LIGA, the act of the DILG inissuing Memorandum Circular No. 97-193 or the supplemental rules and guidelines for theconduct of the 1997 LIGA elections had the effect of modifying, altering and nullifying the rulesprescribed by the National Liga Board. Onon posits that the issuance of said guidelines allowingan appeal of the decision of the BES to the regular courts rather than to the National Liga Boardis no longer an exercise of supervision but an exercise of control.8

In his comment to the petition, private respondent Quejano argues that the Secretary of theDILG has competent authority to issue rules and regulations like Memorandum Circular No. 97-893. The Secretary of DILG's rule-making power is conferred by the Administrative Code.Considering that the Memorandum Circular was issued pursuant to his rule making power,

Quejano insists that the lower court d id not commit any reversible error when it denied Onon'smotion to dismiss.9

On the other hand, the public respondent represented herein by the Solicitor General, filed aseparate Manifestation and Motion in Lieu of Comment agreeing with the position of petitionerOnon. The Solicitor General affirms Onon's claim that in issuing the questioned MemorandumCircular, the Secretary of the DILG effectively amended the rules and guidelines promulgated byNational Liga Board. This act was no longer a mere act of supervision but one of control. TheSolicitor General submits that the RTC committed grave abuse of discretion in not dismiss ing thepetition for review of the BES decision filed before it for failure of the petitioner to exhaust therightful remedy which was to appeal to the National Liga Board.10

On October 27, 1999, this Court denied petitioner Onon's motion for the issuance of restrainingorder for lack of merit.

After a careful review of the case, we sustain the position of the petitioner.

The resolution of the present controversy requires an examination of the questioned provision ofMemorandum Circular No. 97-193 and the Implementing Rules and Guidelines for the 1997General Elections of the Liga ng mga Barangay Officers and Directors (Guidelines). Thememorandum circular reads, insofar as pertinent, as follows:

"Any post-proclamation protest must be filed with the BES within twenty-four (24)hours from the closing of the election. The BES shall decide the same within forty-eight (48) hours from receipt thereof. The decision of the BES shall be final andimmediately executory without prejudice to the filing of a Petition for Review with theregular courts of law."11 (emphasis supplied)

On the other hand, the GUIDELINES provides that the BES shall have the following among itsduties:

"To resolve any post-proclamation electoral protest which must be submitted in

writing to this Board within twenty-four (24) hours from the close of election;provided said Board shall render it s decision within forty-eight (48) hours from receipt


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hereof; and provided further that the decision must be submitted to the National LigaHeadquarters within twenty-four (24) hours from the said decision. The decision ofthe Board of Election Supervisors in this respect shall be subject to review by theNational Liga Board the decision of which shall be final and executory."12 (emphasissupplied)

Memorandum Circular No. 97-193 was issued by the DILG Secretary pursuant to the power ofgeneral supervision of the President over all local government units which was delegated to theDILG Secretary by virtue of Administrative Order No. 267 dated February 18, 1992.13 ThePresident's power of general supervision over local government units is conferred upon him bythe Constitution.14 The power of supervision is defined as "the power of a superior officer to seeto it that lower officers perform their functions in accordance with law." 15 This is distinguishedfrom the power of control or "the power of an officer to alter or modify or set aside what asubordinate officer had done in the performance of his duties and to substitute the judgment ofthe former for the latter."16

On many occasions in the past, this court has had the opportunity to distinguish the power ofsupervision from the power of control. In Taule vs. Santos,17 we held that the Chief Executivewielded no more authority than that of checking whether a local government or the officersthereof perform their duties as provided by statutory enactments. He cannot interfere with localgovernments provided that the same or its officers act within the scope of their authority.Supervisory power, when contrasted with control, is the power of mere oversight over aninferior body; it does not include any restraining authority over such body.18 Officers in controllay down the rules in the doing of an act. If they are not followed, it is discretionary on his partto order the act undone or re-done by his subordinate or he may even decide to do it himself.Supervision does not cover such authority. Supervising officers merely sees to it that the rulesare followed, but he himself does not lay down such rules, nor does he have the discretion tomodify or replace them. If the rules are not observed, he may order the work done or re-doneto conform to the prescribed rules. He cannot prescribe his own manner for the doing of theact.19

Does the President's power of general supervision extend to the liga ng mga barangay, which isnot a local government unit?20

We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruledthat the liga ng mga barangay is a government organization, being an association, federation,league or union created by law or by authority of law, whose members are either appointed orelected government officials. The Local Government Code21 defines the liga ng mga barangay asan organization of all barangays for the primary purpose of determining the representation ofthe liga in the sanggunians, and for ventilating, articulating and crystallizing issues affectingbarangay government administration and securing, through proper and legal means, solutions

thereto.22 The liga shall have chapters at the municipal, city, provincial and metropolitan politicalsubdivision levels. The municipal and city chapters of the liga shall be composed of thebarangay representatives of the municipal and city barangays respectively. The duly electedpresidents of the component municipal and city chapters shall constitute the provincial chapteror the metropolitan political subdivision chapter. The duly elected presidents of highly urbanizedcities, provincial chapters, the Metropolitan Manila chapter and metropolitan political subdivisionchapters shall constitute the National Liga ng mga Barangay.23

The liga at the municipal, city, provincial, metropolitan political subdivision, and national levelsdirectly elect a president, a vice-president and five (5) members of the board of directors. Theboard shall appoint its secretary and treasurer and create such other positions as it may deemnecessary for the management of the chapter.24

The ligas are primarily governed by the provisions of the Local Government Code.25 However,their respective constitution and by-laws shall govern all other matters affecting the internal

organization of the liga not otherwise provided for in the Local Government Code provided thatthe constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the

Local Government Code and shall always conform to the provisions of the Constitution andexisting laws.26

Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of theDILG insofar as it authorizes the fili ng a Petition for Review of the decision of the BES with theregular courts in a post proclamation electoral p rotest is of doubtful constitutionality. We agreewith both the petitioner and the Solici tor General that in authorizing the filing of the petition forreview of the decision of the BES with the regular courts, the DILG Secretary in effect amendedand modified the GUIDELINES promulgated by the National Liga Board and adopted by the LIGAwhich provides that the decision of the BES shall be subject to review by the National LigaBoard. The amendment of the GUIDELINES is more than an exercise of the power of supervisionbut is an exercise of the power of control, which the President does not have over the LIGA.Although the DILG is given the power to prescribe rules, regulations and other issuances, theAdministrative Code limits its authority to merely "monitoring compliance" by local governmentunits of such issuances.27 To monitor means "to watch, observe or check" and is compatible withthe power of supervision of the DILG Secretary over local governments, which is l imited tochecking whether the local government unit concerned or the officers thereof perform theirduties as per statutory enactments.28 Besides, any doubt as to the power of the DILG Secretaryto interfere with local affairs should be resolved in favor of the greater autonomy of the localgovernment.29

The public respondent judge therefore committed grave abuse of discretion amounting to lackor excess of jurisdiction in not dismissing the respondent's Petition for Review for failure toexhaust all administrative remedies and for lack of jurisdiction.

WHEREFORE, the instant petition is hereby GRANTED. The Order of the Regional Trial Court

dated June 22, 1999 is REVERSED and SET ASIDE. The Petition for Review filed by theprivate respondent docketed as SPL. PROC. NO. 1056 is DISMISSED.

SO ORDERED.


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Manila

EN BANC

G.R. No. 146319 October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner,vs.THE COMMISSION ON ELECTIONS, and Rep. Francis Joseph G. Escudero, respondents.

x---------------------------------------------------------xG.R. No. 146342 October 26, 2001

BENJAMIN E. CAWALING, JR., petitioner,vs.THE EXECUTIVE SECRETARY TO THE PRESIDENT OF THE REPUBLIC OF THEPHILIPPINES, SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT,SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, SOLICITORGENERAL, PROVINCE OF SORSOGON, MUNICIPALITY OF SORSOGON,MUNICIPALITY OF BACON, respondents.

SANDOVAL-GUTIERREZ,J.:

Before us are two (2) separate petitions challenging the constitutionality of Republic Act No.8806 which created the City of Sorsogon and the validity of the plebiscite conducted pursuantthereto.

On August 16, 2000, former President Joseph E. Estrada signed into law R.A. No. 8806, an "ActCreating The City Of Sorsogon By Merging The Municipalities Of Bacon And Sorsogon In TheProvince Of Sorsogon, And Appropriating Funds Therefor."1

Pursuant to Section 10, Article X of the Constitution,2 the Commission on Elections (COMELEC),on December 16, 2000, conducted a plebiscite in the Municipalities of Bacon and Sorsogon andsubmitted the matter for ratification.

On December 17, 2000, the Plebiscite City Board of Canvassers (PCBC) proclaimed3 the creationof the City of Sorsogon as having been ratified and approved by the majority of the votes cast inthe plebiscite.4

Invoking his right as a resident and taxpayer of the former Municipality of Sorsogon, BenjaminE. Cawaling, Jr. filed on January 2, 2001 the present petition for certiorari (G.R. No. 146319)seeking the annulment of the plebiscite on the following grounds:

A. The December 16, 2000 plebiscite was conducted beyond the required 120-dayperiod from the approval of R.A. 8806, in violation of Section 54 thereof; and

B. Respondent COMELEC failed to observe the legal requirement of twenty (20) dayextensive information campaign in the Municipalities of Bacon and Sorsogon beforeconducting the plebiscite.

Two days after filing the said action, or on January 4, 2001, petitioner instituted another petition(G.R. No. 146342), this time for prohibition seeking to enjoin the further implementation of R.A .No. 8806 for being unconstitutional, contending, in essence, that:

1. The creation of Sorsogon City by merging two municipalities violates Section 450(a)of the Local Government Code of 1991 (in relation to Section 10, Article X of theConstitution) which requires that only "a municipality or a cluster ofbarangaysmaybe converted into a component city"; and

2. R.A. No. 8806 contains two (2) subjects, namely, the (a) creation of the City ofSorsogon and the (b) abolition of the Municipalities of Bacon and Sorsogon, thereby

violating the "one subject-one bill" rule prescribed by Section 26(1), Article VI of theConstitution.

Hence, the present petitions which were later consolidated.5

Significantly, during the pendency of these cases, specifically during the May 14, 2001 elections,the newly-created Sorsogon City had the first election of its officials. Since then, the CityGovernment of Sorsogon has been regularly discharging its corporate and political powerspursuant to its charter, R.A. No. 8806.

We shall first delve on petitioner's constitutional challenge against R.A. No. 8806 in G.R No.146342.

Every statute has in its favor the presumption of constitutionality. 6 This presumption is rooted inthe doctrine of separation of powers which enjoins upon the three coordinate departments ofthe Government a becoming courtesy for each other's acts.7 The theory is that every law, beingthe joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it isin accord with the fundamental law.8 This Court, however, may declare a law, or portionsthereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of theConstitution, not merely a doubtful or argumentative one.9 In other words the grounds fornullity must be beyond reasonable doubt,10 for to doubt is to sustain.11

Petitioner initially reject R.A. No. 8806 because it violates Section 10, Article X of theConstitution which provides, inter alia:

"SECTION 10. No province, city, municipality, or barangay may be created, divided,merged, abolished, or its boundary substantially altered, except in accordance withthe criteria established in the local government code and subject to approval by amajority of the votes cast in a plebiscite in the political units directly affected."(Emphasis ours)

The criteria for the creation of a city i s prescribed in Section 450 of the Local Government Codeof 1991 (the Code), thus:

"SECTION 450. Requisites for Creation. (a) A municipality or a cluster ofbarangaysmay be converted into a component city if it has an average annual income, ascertified by the Department of Finance, of at leas t Twenty million (P20,000,000.00)for the last two (2) consecutive years based on 1991 constant prices, and if it haseither of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers,as certified by the Lands Management Bureau; or

(ii) a population of not less than one hundred fifty thousand (150,000)

inhabitants, as certified by the National Statistics Office:Provided, That, the creation thereof shall not reduce the land area, population, andincome of the original unit or units at the time of said creation to less than theminimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified bymetes and bounds. The requirement on land area shall not app ly where the cityproposed to be created is composed of one (1) or more islands. The territory need notbe contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund,exclusive of specific funds, transfers, and non-recurring income." (Emphasis ours)

Petitioner is not concerned whether the creation of Sorsogon City through R.A. No. 8806complied with the criteria set by the Code as to income, population and land area. What he is

assailing is its mode of creation. He contends that under Section 450(a) of the Code, a


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component city may be created only by converting "a municipality or a cluster ofbarangays,"not by merging two municipalities, as what R.A. No. 8806 has done.

This contention is devoid of merit.

Petitioner's constricted reading of Section 450(a) of the Code is erroneous. The phrase "Amunicipality or a cluster ofbarangaysmay be convertedinto a component city" is not a criterionbut simply one of the modesby which a city may be created. Section 10, Article X of theConstitution, quoted earlier and which petitioner cited in support of his posture, allows themergerof local government units to create a province city, municipali ty or barangayinaccordance with the criteria established by the Code. Thus, Section 8 of the Code dist inctly

provides:"SECTION 8. Division and Merger.Division and merger of existing local governmentunits shall comply with the same requirements herein prescribed for their creation:Provided, however, That such division shall not reduce the income, population, or landarea of the local government unit or units concerned to less than the minimumrequirements prescribed in this Code: Provided, further, That the income classificationof the original local government unit or units shall not fall below its current incomeclassification prior to such division. . . . ." (Emphasis ours)

Verily, the creation of an entirely new local government unit through a divisionor a mergerofexisting local government units is recognizedunder the Constitution, provided that such mergeror division shall comply with the requirements prescribed by the Code.

Petitioner further submits that, in any case, there is no "compelling" reason for merging theMunicipalities of Bacon and Sorsogon in order to create the City of Sorsogon considering that

the Municipality of Sorsogon alone already qualifies to be upgraded to a component city. Thisargument goes into the wisdom of R.A. No. 8806, a matter which we are not competent to rule.InAngara v. Electoral Commission,12 this Court, through Justice Jose P. Laurel, made it clearthat "the judiciary does not pass upon questions of wisdom, justice or expediency of legislation."In the exercise of judicial power, we a re allowed only "to settle actual controversies involvingrights which are legally demandable and enforceable,"13 and "may not annul an act of thepolitical departments simply because we feel it is unwise or impractical. "14

Next, petitioner assails R.A. No. 8806 since it contravenes the "one subject-one bill" ruleenunciated in Section 26 (1), Article VI of the Constitution, to wit:

"SECTION 26 (1). Every bill passed by the Congress shall embrace only one subjectwhich shall be expressed in the title thereof." (Emphasis ours)

Petitioner contends that R.A. No. 8806 actually embraces two principal subjects which are: (1)the creationof the City of Sorsogon, and (2) the abolitionof the Municipalities of Bacon and

Sorsogon. While the title of the Act sufficiently informs the public about the creation of SorsogonCity, petitioner claims that no such information has been provided on the abolition of theMunicipalities of Bacon and Sorsogon.

The argument is far from persuasive. Contrary to petitioner's assertion, there is only one subjectembraced in the title of the law, that is, the creation of the City of Sorsogon. Theabolition/cessation of the corporate existence of the Municipalities of Bacon and Sorsogon dueto their merger is not a subject separate and distinct from the creation of Sorsogon City. Suchabolition/cessation was but the logical, natural and inevitable consequence of the merger.Otherwise put, it is the necessary means by which the City of Sorsogon was created. Hence, thetitle of the law, "An Act Creating the City of Sorsogon by Merging the Municipalities of Baconand Sorsogon in the Province of Sorsogon, and Appropriating Funds Therefor," cannot be said toexclude the incidental effect of abolishing the two municipalities, nor can it be considered tohave deprived the public of fair information on this consequence.

It is well-settled that the "one title-one subject" rule does not require the Congress to employ inthe title of the enactment language of such precis ion as to mirror, fully index or catalogue all the

contents and the minute details therein.15 The rule is sufficiently complied with if the title iscomprehensive enough as to include the general object which the statute seeks to effect,16 andwhere, as here, the persons interested are informed of the nature, scope and consequences ofthe proposed law and its operation.17 Moreover, this Court has invariably adopted a liberal ratherthan technical construction of the rule "so as not to cripple or impede legi slation."18

Consequently, we hold that petitioner has failed to present clear and convincing proof to defeatthe presumption of constitutionality of R.A. No. 8806.

We now turn to G.R. No. 146319 wherein petitioner assails the validity of the plebisciteconducted by the COMELEC for the ratification of the creation of Sorsogon City.

Petitioner asserts that the plebiscite required by R.A. No. 8806 should be conducted within 120days from the "approval" of said Act per express provision of its Section 54, viz:

"SECTION 54. Plebiscite. The City of Sorsogon shall acquire corporate existenceupon the ratification of its creation by a majority of the votes cast by the qualifiedvoters in a plebiscite to be conducted in the present municipalities of Bacon andSorsogon within one hundred twenty (120) daysfrom the approvalof this Act. x x x ."(Emphasis ours)

The Act was approved on August 16, 2000 by former President Joseph E. Estrada. Thus,petitioner claims, the December 16, 2000 plebiscite was conducted one (1) day late from theexpiration of the 120-day period after the approvalof the Act. This 120-day period havingexpired without a plebiscite being conducted, the Act itself expired and could no longer beratified and approved in the plebiscite held on December 16, 2000.

In its comment, the COMELEC asserts that it scheduled the plebiscite on December 16, 2000based on the date of the effectivity of the Act. Section 65 of the Act states:

"SECTION 65. Effectivity. This Act shall take effect upon its publication in at leasttwo (2) newspapers of general and local circulation."

The law was first published in the August 25, 2000 issue of TODAY a newspaper of generalcirculation. Then on September 01, 2000, it was published in a newspaper of local circulation inthe Province of Sorsogon. Thus, the publication of the law was completed on September 1,2000, which date, according to the COMELEC, should be the reckoning point in determining the120-day period within which to conduct the pleb iscite, not from the date of its approval (August16, 2000) when the law had not yet been published. The COMELEC argues that since publicationis indispensable for the effectivity of a law, citing the landmark case ofTaada vs. Tuvera,19 itcould only schedule the plebiscite after the Act took effect. Thus, the COMELEC concludes, theDecember 16, 2000 plebiscite was well within the 120-day period from the effectivity of the lawon September 1, 2000.

The COMELEC is correct.

In addition, Section 10 of the Code provides:

"SECTION 10. Plebiscite Requirement. No creation, division, merger, abolition, orsubstantial alteration of boundaries of local government units shall take effect unlessapproved by a majority of the votes cast in a plebiscite called for the purpose in thepolitical unit or units directly affected. Such plebiscite shall be conducted by theCommission on Elections within one hundred twenty (120) days from the date of theeffectivityof the law or ordinance affecting such action, unless said law or ordinancefixes another date." (Emphasis ours)

Quite plainly, the last sentence of Section 10 mandates that the plebiscite shall be conductedwithin 120 days from the date of the effectivity of the law, not from its approval. While thesame provision allows a law or ordinance to fix "another date" for conducting a plebiscite, still

such date must be reckoned from the date of the effectivity of the law.


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Consequently, the word "approval" in Section 54 of R.A. No. 8806, which should be readtogether with Section 65 (effectivity of the Act) thereof, could only mean "effectivity" as usedand contemplated in Section 10 of the Code. This construction is in accord with the fundamentalrule that all provisions of the laws relating to the same subject should be read together andreconciled to avoid inconsistency or repugnancy to established jurisprudence. As we stated inTaada:

"ARTICLE 2. Laws shall take effect after fifteen days following the completion of theirpublication in the Official Gazette, unless it is otherwise provided. This Code shall takeeffect one year after such publication.

After a careful study of this provision and of the arguments of the parties, both on theoriginal petition and on the instant motion, we have come to the conclusion, and sohold, that the clause 'unless it i s otherwise provided' refers to the date of effectivityand not to the requirement of publication itself, which cannot in any event be omitted.This clause does not mean that the legislature may make the law effectiveimmediately upon approval, or on any other date, without its previous publication."(Emphasis supplied)

To give Section 54 a literal and strict interpretation would in effect make the Act effective evenbefore its publication, which scenario is precisely abhorred in Taada.

Lastly, petitioner alleges that the COMELEC failed to conduct an extensive information campaignon the proposed Sorsogon cityhood 20 days prior to the scheduled plebiscite as required byArticle 11 (b.4.ii), Rule II of the Rules and Regulations Implementing the Code. However, noproof whatsoever was presented by petitioner to substantiate his allegation. Consequently, wesustain the presumption20 that the COMELEC regularly performed or complied with its dutyunder the law in conducting the plebiscite.

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED


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EN BANC

[G.R. No. 125350. December 3, 2002]

HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge, Branch 28), ULRIC R. CAETE(Presiding Judge, Branch 25), AGUSTINE R. VESTIL (Presiding Judge, Branch 56), HON. MTCJUDGES TEMISTOCLES M. BOHOLST (Presiding Judge, Branch 1), VICENTE C. FANILAG (JudgeDesignate, Branch 2), and WILFREDO A. DAGATAN (Presiding Judge, Branch 3), all of MandaueCity, petitioners, vs. COMMISSION ON AUDIT, respondent.

D E C I S I O N

CORONA, J.:Before us is a petition for certiorariunder Rule 64 to annul the decision[1] and resolution[2],dated September 21, 1995 and May 28, 1996, respectively, of the respondent Commission onAudit (COA) affirming the notices of the Mandaue City Auditor which diminished the monthlyadditional allowances received by the petitioner judges of the Regional Trial Court (RTC) andMunicipal Trial Court (MTC) stationed in Mandaue City.

The undisputed facts are as follows:

In 1986, the RTC and MTC judges of Mandaue City started receiving monthly allowances ofP1,260 each through the yearly appropriation ordinance enacted by the SangguniangPanlungsod of the said city. In 1991 , Mandaue City increased the amount to P1,500 for eachjudge.

On March 15, 1994, the Department of Budget and Management (DBM) issued the disputedLocal Budget Circular No. 55 (LBC 55) which provided that:

xxx xxx xxx

2.3.2. In the light of the authority granted to the local government units under the LocalGovernment Code to provide for additional allowances and other benefits to nationalgovernment officials and employees assigned in their locality, such additional allowances in theform of honorarium at rates not exceeding P1,000.00 in provinces and cities and P700.00 inmunicipalities may be grantedsubject to the following conditions:

a) That the grant is not mandatory on the part of the LGUs;

b) That all contractual and statutory obligations of the LGU including the implementation of R.A.6758 shall have been fully provided in the budget;

c) That the budgetary requirements/limitations under Section 324 and 325 of R.A. 7160 shouldbe satisfied and/or complied with; and

d) That the LGU has fully implemented the devolution of functions/personnel in accordance withR.A. 7160.[3] (italics supplied)

xxx xxx xxx

The said circular likewise provided for its immediate effectivity without need of publication:

5.0 EFFECTIVITY

This Circular shall take effect immediately.

Acting on the DBM directive, the Mandaue City Auditor issued notices of disallowance to hereinpetitioners, namely, Honorable RTC Judges Mercedes G. Dadole, Ul ric R. Caete, Agustin R.Vestil, Honorable MTC Judges Temistocles M. Boholst, Vicente C. Fanilag and Wilfredo A.Dagatan, in excess of the amount authorized by LBC 55. Beginning October, 1994, theadditional monthly allowances of the petitioner judges were reduced to P1,000 each. They werealso asked to reimburse the amount they received in excess of P1,000 from April to September,

1994.

The petitioner judges filed with the Office of the City Auditor a protest against the notices ofdisallowance. But the City Auditor treated the protest as a motion for reconsideration andindorsed the same to the COA Regional Office No. 7. In turn, the COA Regional Office referredthe motion to the head office with a recommendation that the same be denied.

On September 21, 1995, respondent COA rendered a decision denying petitioners motion forreconsideration. The COA held that:

The issue to be resolved in the instant appeal is whether or not the City Ordinance of Mandauewhich provides a higher rate of allowances to the appellant judges may prevail over that fixedby the DBM under Local Budget Circular No. 55 dated March 15, 1994.

xxx xxx xxx

Applying the foregoing doctrine, appropriation ordinance of local government units is subject tothe organizational, budgetary and compensation policies of budgetary authorities (COA 5th Ind.,dated March 17, 1994 re: Province of Antique; COA letter dated May 17, 1994 re: Request ofHon. Renato Leviste, Cong. 1st Dist. Oriental Mindoro). In this regard, attention is invited toAdministrative Order No. 42 issued on March 3, 1993 by the President of the Philippinesclarifying the role of DBM in the compensation and classification of local government positionsunder RA No. 7160 vis-avis the provisions of RA No. 6758 in view of the abolition of the JCLGPA.Section 1 of said Administrative Order provides that:

Section 1. The Department of Budget and Management as the lead administrator of RA No.6758 shall, through its Compensation and Position Classification Bureau, continue to have thefollowing responsibilities in connection with the implementation of the Local Government Codeof 1991:

a) Provide guidelines on the class ification of local government positionsand on the specific rates of pay therefore;

b) Provide criteria and guidelines for the grant of all allowances andadditional forms of compensation to local government employees; xxx.(underscoring supplied)

To operationalize the aforecited presidential directive, DBM issued LBC No. 55, dated March 15,1994, whose effectivity clause provides that:

xxx xxx xxx

5.0 EFFECTIVITY

This Circular shall take effect immediately.

It is a well-settled rule that implementing rules and regulations promulgated by administrative or

executive officer in accordance with, and as authorized by law, has the force and effect of lawor partake the nature of a statute (Victorias Milling Co., Inc., vs. Social Security Commission,114 Phil. 555, cited in Agpalos Statutory Construction, 2ndEd. P. 16; Justice Cruzs Phil. PoliticalLaw, 1984 Ed., p. 103; Espanol vs. Phil Veterans Administration, 137 SCRA 314; AntiqueSawmills Inc. vs. Tayco, 17 SCRA 316).

xxx xxx xxx

There being no statutory basis to grant additional allowance to judges in excess of P1,000.00chargeable against the local government units where they are s tationed, this Commission findsno substantial grounds or cogent reason to dis turb the decision of the City Auditor, MandaueCity, disallowing in audit the allowances in question. Accordingly, the above-captioned appeal ofthe MTC and RTC Judges of Mandaue City, insofar as the same is not covered byCircular Letter No. 91-7, is hereby dismissed for lack of merit.

xxx xxx xxx[4]


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On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for and in behalf of thepetitioner judges, filed a motion for reconsideration of the decision of the COA. In a resolutiondated May 28, 1996, the COA denied the motion.

Hence, this petition for certiorari by the peti tioner judges, submitting the following questions forresolution:

I

HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL BASIS TO PROVIDEADDITIONAL ALLOWANCES AND OTHER BENEFITS TO JUDGES STATIONED IN AND ASSIGNEDTO THE CITY?

II

CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS LOCAL BUDGET CIRCULAR NO.55 RENDER INOPERATIVE THE POWER OF THE LEGISLATIVE BODY OF A CITY BY SETTING ALIMIT TO THE EXTENT OF THE EXERCISE OF SUCH POWER?

III

HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED LOCAL BUDGET CIRCULAR NO.55 TO INCLUDE MEMBERS OF THE JUDICIARY IN FIXING THE CEILING OF ADDITIONALALLOWANCES AND BENEFITS TO BE PROVIDED TO JUDGES STATIONED IN AND ASSIGNED TOMANDAUE CITY BY THE CITY GOVERNMENT AT P1,000.00 PER MONTH NOTWITHSTANDINGTHAT THEY HAVE BEEN RECEIVING ALLOWANCES OF P1,500.00 MONTHLY FOR THE PASTFIVE YEARS?

IV

IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994 ISSUED BY THE DEPARTMENTOF BUDGET AND MANAGEMENT VALID AND ENFORCEABLE CONSIDERING THAT IT WAS NOTDULY PUBLISHED IN ACCODANCE WITH LAW?[5]

Petitioner judges argue that LBC 55 is void for infringing on the local autonomy of Mandaue Cityby dictating a uniform amount that a local government unit can disburse as additionalallowances to judges stationed therein. They maintain that said circular is not supported by anylaw and therefore goes beyond the supervisory powers of the President. They further allege thatsaid circular is void for lack of publication.

On the other hand, the yearly appropriation ordinance providing for additional allowances tojudges is allowed by Section 458, par. (a)(1)[xi], of RA 7160, otherwise known as the LocalGovernment Code of 1991, which provides that:

Sec. 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as

the legislative body of the ci ty, shall enact ordinances, approve resolutions and appropriatefunds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Codeand in the proper exercise of the corporate powers of the city as provided for under Section 22of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective citygovernment, and in this connection, shall:

xxx xxx xxx

(xi) When the finances of the city government allow, provide for additional al lowances and otherbenefits to judges, prosecutors, public elementary and high school teachers, and other nationalgovernment officials stationed in or assigned to the city;(italics supplied)

Instead of filing a comment on behalf of respondent COA, the Soli citor General filed amanifestation supporting the position of the petitioner judges. The Solicitor General argues that(1) DBM only enjoys the power to review and determine whether the disbursements of fundswere made in accordance with the ordinance passed by a local government unit while (2) the

COA has no more than auditorial visitation powers over local government units pursuant toSection 348 of RA 7160 which provides for the power to inspect at any time the financialaccounts of local government units.

Moreover, the Solicitor General opines that the DBM and the respondent are only authorizedunder RA 7160 to promulgate a Budget Operations Manual for local government units, toimprove and systematize methods, techniques and procedures employed in budget preparation,authorization, execution and accountability pursuant to Section 354 of RA 7160. The SolicitorGeneral points out that LBC 55 was not exercised under any of the aforementioned provisions.

Respondent COA, on the other hand, insists that the constitutional and statutory authority of a

city government to provide allowances to judges stationed therein is not absolute. Congressmay set limitations on the exercise of autonomy. It is for the President, through the DBM, tocheck whether these legislative limitations are being followed by the local government units.

One such law imposing a limitation on a local government units autonomy is Section 458, par.(a) (1) [xi], of RA 7160, which authorizes the disbursement of additional allowances and otherbenefits to judges subject to the condition that the finances of the city government should allowthe same. Thus, DBM is merely enforcing the condition of the law when it sets a uniformmaximum amount for the additional allowances that a city government can release to judgesstationed therein.

Assuming arguendothat LBC 55 is void, respondent COA maintains that the provisions of theyearly approved ordinance granting additional allowances to judges are still prohibited by theappropriation laws passed by Congress every year. COA argues that Mandaue City gets thefunds for the said additional allowances of judges from the Internal Revenue Allotment (IRA).But the General Appropriations Acts of 1994 and 1995 do not mention the disbursement ofadditional allowances to judges as one of the allowable uses of the IRA. Hence, the provisions ofsaid ordinance granting additional allowances, taken from the IRA, to herein petitioner judgesare void for being contrary to law.

To resolve the instant petition, there are two issues that we must address: (1) whether LBC 55of the DBM is void for going beyond the supervisory powers of the President and for not havingbeen published and (2) whether the yearly appropriation ordinance enacted by the City ofMandaue that provides for additional allowances to judges contravenes the annual appropriationlaws enacted by Congress.

We rule in favor of the petitioner judges.

On the first issue, we declare LBC 55 to be null and void.

We recognize that, although our Constitution[6] guarantees autonomy to local governmentunits, the exercise of local autonomy remains subject to the power of control by Congress and

the power of supervision by the President. Section 4 of Article X of the 1987 PhilippineConstitution provides that:

Sec. 4. The President of the Philippines shall exercise general supervision over localgovernments. x x x

InPimentel vs. Aguirre[7], we defined the supervisory power of the President and distinguishedit from the power of control exercised by Congress. Thus:

This provision (Section 4 of Article X of the 1987 Philippine Constitution) has been interpreted toexclude the power of control. In Mondano v. Silvosa,[i][5] the Court contrasted the President'spower of supervision over local government officials with that of his power of control overexecutive officials of the national government. It was emphasized that the two terms --supervision and control -- differed in meaning and extent. The Court distinguished them asfollows:

"x x x In administrative law, supervision means overseeing or the power or authority of anofficer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill
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them, the former may take such action or step as prescribed by law to make them perform theirduties. Control, on the other hand, means the power of an officer to alter or modify or nullify orset aside what a subordinate officer ha[s] done in the performance of his duties and tosubstitute the judgment of the former for that of the latter." [ii][6]

In Taule v. Santos,[iii][7]we further stated that the Chief Executive wielded no more authoritythan that of checking whether local governments or their officials were performing their dutiesas provided by the fundamental law and by statutes. He cannot interfere with localgovernments, so long as they act within the scope of their authority. "Supervisory power, whencontrasted with control, is the power of mere oversight over an inferior body; it does not includeany restraining authority over such body," [iv][8] we said.

In a more recent case, Drilon v. Lim,[v][9] the difference between control and supervision wasfurther delineated. Officers in control lay down the rules in the performance or accomplishmentof an act. If these rules are not followed, they may, in their discretion, order the act undone orredone by their subordinates or even decide to do it themselves. On the other hand,supervision does not cover such authority. Supervising officials merely see to it that the rulesare followed, but they themselves do not lay down such rules, nor do they have the discretion tomodify or replace them. If the rules are not observed, they may order the work done orredone, but only to conform to such rules. They may not prescribe their own manner ofexecution of the act. They have no discretion on this matter except to see to it that the rulesare followed.

Under our present system of government, executive power is vested in the President.[vi][10] Themembers of the Cabinet and other executive officials are merely alter egos. As such, they aresubject to the power of control of the President, a t whose will and behest they can be removed

from office; or their actions and decisions changed, suspended or reversed.[vii][11]

In contrast, theheads of political subdivisions are elected by the people. Their sovereign powers emanate fromthe electorate, to whom they are directly accountable. By constitutional fiat, they are subject tothe Presidents supervision only, not control, so long as their acts are exercised within thesphere of their legitimate powers. By the same token, the President may not withhold or alterany authority or power given them by the Constitution and the law.

Clearly then, the President can only interfere in the affairs and activities of a local governmentunit if he or she finds that the latter has acted contrary to law. This is the scope of thePresidents supervisory powers over local government units. Hence, the President or any of hisor her alter egoscannot interfere in local affairs as long as the concerned local government unitacts within the parameters of the law and the Constitution. Any directive therefore by thePresident or any of his or her alter egosseeking to alter the wisdom of a law-conformingjudgment on local affairs of a local government unit is a patent nullity because it violates theprinciple of local autonomy and separation of powers of the executive and legislative

departments in governing municipal corporations.Does LBC 55 go beyond the law it seeks to implement? Yes.

LBC 55 provides that the additional monthly allowances to be given by a local government unitshould not exceed P1,000 in provinces and ci ties and P700 in municipalities. Section 458, par.(a)(1)(xi), of RA 7160, the law that supposedly serves as the legal basis of LBC 55, allows thegrant of additional allowances to judges when the finances of the city government allow. Thesaid provision does not authorize setting a definite maximum limit to the additional allowancesgranted to judges. Thus, we need not belabor the point that the finances of a ci ty governmentmay allow the grant of additional allowances higher than P1,000 if the revenues of the said citygovernment exceed its annual expenditures. Thus, to illustrate, a city government with locallygenerated annual revenues of P40 million and expenditures of P35 million can afford to grantadditional allowances of more than P1,000 each to, say, ten judges inasmuch as the finances ofthe city can afford it.

Setting a uniform amount for the grant of additional allowances is an inappropriate way ofenforcing the criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM over-stepped

its power of supervision over local government units by imposing a prohibition that did notcorrespond with the law it sought to implement. In other words, the prohibitory nature of thecircular had no legal basis.

Furthermore, LBC 55 is void on account of its lack of publication, in violation of our ruling inTaada vs. Tuvera[8]where we held that:

xxx. Administrative rules and regulations must also be published if their purpose is to enforce orimplement existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only thepersonnel of an administrative agency and the public, need not be published. Neither is

publication required of the so-called letters of instruction issued by administrative superiorsconcerning the rules or guidelines to be followed by their subordinates in the performance oftheir duties.

Respondent COA claims that publication is not required for LBC 55 inasmuch as it is merely aninterpretative regulation applicable to the personnel of an LGU. We disagree. InDe Jesus vs.Commission on Audit[9]where we dealt with the same issue, this Court declared void, for lackof publication, a DBM circular that disallowed payment of allowances and other additionalcompensation to government officials and employees. In refuting respondent COAs argumentthat said circular was merely an internal regulation, we ruled that:

On the need for publication of subject DBM-CCC No. 10, we rule in the affirmative. Following thedoctrine enunciated in Taada v. Tuvera, publication in the Official Gazette or in a newspaper ofgeneral circulation in the Philippines is required since DBM-CCC No. 10 is in the nature of anadministrative circular the purpose of which is to enforce or implement an existing

law. Stated differently, to be effective and enforceable, DBM-CCC No. 10 must go through therequisite publication in the Official Gazette or in a newspaper of general ci rculation in thePhilippines.

In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which completelydisallows payment of allowances and other addi tional compensation to government officials andemployees, starting November 1, 1989, is not a mere interpretative or internal regulation. It issomething more than that. And why not, when it tends to deprive government workers of theirallowance and additional compensation sorely needed to keep body and soul together.At thevery least, before the said circular under attack may be permitted to substantiallyreduce their income, the government officials and employees concerned should beapprised and alerted by the publication of subject circular in the Official Gazette orin a newspaper of general circulation in the Philippines to the end that they begiven amplest opportunity to voice out whatever opposition they may have, and toventilate their stance on the matter. This approach is more in keeping with

democratic precepts and rudiments of fairness and transparency. (emphasis supplied)InPhilippine International Trading Corporation vs. Commission on Audit[10], we again declaredthe same circular as void, for lack of publication, despite the fact that it was re-issued and thensubmitted for publication. Emphasizing the importance of publication to the effectivity of aregulation, we therein held that:

It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its entirety andsubmitted for publication in the Official Gazette per letter to the National Printing Office datedMarch 9, 1999. Would the subsequent publication thereof cure the defect and retroact to thetime that the above-mentioned items were disallowed in audit?

The answer is in the negative, preci sely for the reason that publication is required as a conditionprecedentto the effectivity of a law to inform the public of the contents of the law or rules andregulations before their rights and interests are affected by the same. From the time the COAdisallowed the expenses in audit up to the filing of herein petition the subject circular remained

in legal limbo due to its non-publication. As was stated in Taada v. Tuvera, prior publication of
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laws before they become effective cannot be dispensed with, for the reason that it would denythe public knowledge of the laws that are supposed to govern it.[11]

We now resolve the second issue of whether the yearly appropriation ordinance enacted byMandaue City providing for fixed allowances for judges contravenes any law and shouldtherefore be struck down as null and void.

According to respondent COA, even if LBC 55 were void, the ordinances enacted by MandaueCity granting additional allowances to the petitioner judges would still (be) bereft of legal basisfor want of a lawful source of funds considering that the IRA cannot be used for such purposes.Respondent COA showed that Mandaue Citys funds consisted of locally generated revenues and

the IRA. From 1989 to 1995, Mandaue C itys yearly expenditures exceeded its locally generatedrevenues, thus resulting in a deficit. During all those years, it was the IRA that enabledMandaue City to incur a surplus. Respondent avers that Mandaue City used its IRA to pay forsaid additional allowances and this violated paragraph 2 of the Special Provisions, page 1060, ofRA 7845 (The General Appropriations Act of 1995)[12] and paragraph 3 of the Special Provision,page 1225, of RA 7663 (The General Appropriations Act of 1994)[13] which specificallyidentified the objects of expenditure of the IRA. Nowhere in said provisions of the twobudgetary laws does it say that the IRA can be used for additional allowances of judges.Respondent COA thus argues that the provisions in the ordinance providing for suchdisbursement are against the law, considering that the grant of the subject allowances is notwithin the specified use allowed by the aforesaid yearly appropriations acts.

We disagree.

Respondent COA failed to prove that Mandaue City used the IRA to spend for the additionalallowances of the judges. There was no evidence submitted by COA showing the breakdown ofthe expenses of the city government and the funds used for said expenses. All the COApresented were the amounts expended, the locally generated revenues, the deficit, the surplusand the IRA received each year. Aside from these items, no data or figures were presented toshow that Mandaue City deducted the subject al lowances from the IRA. In other words, justbecause Mandaue Citys locally generated revenues were not enough to cover its expenditures,this did not mean that the addi tional allowances of petitioner judges were taken from the IRAand not from the citys own revenues.

Moreover, the DBM neither conducted a formal review nor ordered a disapproval of MandaueCitys appropriation ordinances, in accordance with the procedure outlined by Sections 326 and327 of RA 7160 which provide that:

Section 326. Review of Appropriation Ordinances of Provinces, Highly Urbanized Cities,Independent Component Cities, and Municipalities within the Metropolitan Manila Area. TheDepartment of Budget and Management shall review ordinances authorizing the annual or

supplemental appropriations of provinces, highly-urbanized cities, independent componentcities, and municipalities within the Metropolitan Manila Area in accordance with theimmediately succeeding Section.

Section 327. Review of Appropriation Ordinances of Component Cities and Municipalities.- Thesangguninang panlalawigan shall review the ordinance authorizing annual or supplementalappropriations of component cities and municipalities in the same manner and within the sameperiod prescribed for the review of other ordinances.

If within ninety (90) days from receipt of copies of such ordinance, the sangguniangpanlalawigan takes no action thereon, the same shall be deemed to have beenreviewed in accordance with law and shall continue to be in full force and effect. (emphasis supplied)

Within 90 days from receipt of the copies of the appropriation ordinance, the DBM should havetaken positive action. Otherwise, such ordinance was deemed to have been properly reviewed

and deemed to have taken effect. Inasmuch as, in the instant case, the DBM did not follow theappropriate procedure for reviewing the subject ordinance of Mandaue City and allowed the 90-

day period to lapse, i t can no longer question the legality of the provisions in the said ordinancegranting additional allowances to judges stationed in the said city.

WHEREFORE, the petition is hereby GRANTED, and the assailed decision and resolution, datedSeptember 21, 1995 and May 28, 1996, respectively, of the Commission on Audit are hereby setaside.

No costs.

SO ORDERED.


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Manila

EN BANC

G.R. No. 161414 January 17, 2005

SULTAN OSOP B. CAMID, petitioner,vs.THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE INTERIOR AND LOCALGOVERNMENT, AUTONOMOUS REGION IN MUSLIM MINDANAO, DEPARTMENT of

FINANCE, DEPARTMENT of BUDGET AND MANAGEMENT, COMMISSION ON AUDIT,and the CONGRESS OF THE PHILIPPINES (HOUSE of REPRESENTATIVES ANDSENATE),respondents.

D E C I S I O N

TINGA, J.:

This Petition for Certioraripresents this Court with the prospect of our own Brigadoon1themunicipality of Andong, Lanao del Surwhich like its counterpart in filmdom, is a town that isnot supposed to exist yet is anyway insisted by some as actually alive and thriving. Yet unlike inthe movies, there is nothing mystical, ghostly or anything even remotely charming about thepurported existence of Andong. The creation of the putative municipality was declared void abinitioby this Court four decades ago, but the present petition insists that in spite of thisinsurmountable obstacle Andong thrives on, and hence, its legal personality should be givenjudicial affirmation. We disagree.

The factual antecedents derive from the promulgation of our ruling in Pelaez v. Auditor General2in 1965. As discussed therein, then President Diosdado Macapagal issued several ExecutiveOrders3creating thirty-three (33) municipalities in Mindanao. Among them was Andong in Lanaodel Sur which was created by virtue of Executive Order No. 107.4

These executive orders were issued after legislative bills for the creation of municipalitiesinvolved in that case had failed to pass Congress.5President Diosdado Macapagal justified thecreation of these municipalities citing his powers under Section 68 of the Revised AdministrativeCode. Then Vice-President Emmanuel Pelaez filed a special civil action for a writ of prohibition,alleging in main that the Executive Orders were null and void, Section 68 having been repealedby Republic Act No. 2370,6and said orders constituting an undue delegation of legislativepower.7

After due deliberation, the Court unanimously held that the challenged Executive Orders werenull and void. A majority of five justices, led by the ponente, Justice (later Chief Justice) RobertoConcepcion, ruled that Section 68 of the Revised Administrative Code did not meet the well -settled requirements for a valid delegation of legislative power to the executive branch,8whilethree justices opined that the nullity of the issuances was the consequence of the enactment ofthe 1935 Constitution, which reduced the power of the Chief Executive over local governments.9Pelaezwas disposed in this wise:

WHEREFORE, the Executive Orders in question are declared null and void ab initioand therespondent permanently restrained from passing in audit any expenditure of public funds inimplementation of said Executive Orders or any disbursement by the municipalities abovereferred to. It is so ordered.10

Among the Executive Orders annulled was Executive Order No. 107 which created theMunicipality of Andong. Nevertheless, the core issue presented in the present petition is thecontinued efficacy of the judicial annulment of the Municipality of Andong.

Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of Andong,11suing as a private citizen and taxpayer whose locus standi"is of public and paramount interest

especially to the people of the Municipality of Andong, Province of Lanao del Sur."12He allegesthat Andong "has metamorphosed into a full-blown municipality with a complete set of officialsappointed to handle essential services for the municipality and its constituents,"13even thoughhe concedes that since 1968, no person has been appointed, elected or qualified to serve any ofthe elective local government positions of Andong.14Nonetheless, the municipality of Andonghas its own high school, Bureau of Posts, a Department of Education, Culture and Sports office,and at least seventeen (17) "barangay units" with their own respective chairmen.15From 1964until 1972, according to Camid, the public officials of Andong "have been serving theirconstituents through the minimal means and resources with least (s ic) honorarium andrecognition from the Office of the then former President Diosdado Macapagal." Since the time of

Martial Law in 1972, Andong has allegedly been getting by despite the absence of public funds,with the "Interim Officials" serving their constituents "in their own little ways and means."16

In support of his claim that Andong remains in existence, Camid presents to this Court aCertificationissued by the Office of the Community Environment and Natural Resources(CENRO) of the Department of Environment and Natural Resources (DENR) certifying the totalland area of the Municipality of Andong, "created under Executive Order No. 107 issued [last]October 1, 1964."17He also submits a Certificationissued by the Provincial Statistics Office ofMarawi City concerning the population of Andong, which is pegged at fourteen thousand fiftynine (14,059) strong. Camid also enumerates a list of governmental agencies and private groupsthat allegedly recognize Andong, and notes that other municipalities have recommended to theSpeaker of the Regional Legislative Assembly for the immediate implementation of the revival orre-establishment of Andong.18

The petition assails a Certificationdated 21 November 2003, issued by the Bureau of LocalGovernment Supervision of the Department of Interior and Local Government (DILG).19TheCertificationenumerates eighteen (18) municipalities certified as "exist ing," per DILG records.Notably, these eighteen (18) municipalities are among the thirty-three (33), along with Andong,whose creations were voided by this Court in Pelaez. These municipalities are Midaslip, Pitogo,Naga, and Bayog in Zamboanga del Sur; Siayan and Pres. Manuel A. Roxas in Zamboanga delNorte; Magsaysay, Sta. Maria and New Corella in Davao; Badiangan and Mina in Iloilo; Maguingin Lanao del Sur; Gloria in Oriental M indoro; Maasim in Sarangani; Kalilangan and Lantapan inBukidnon; and Maco in Compostela Valley.20

Camid imputes grave abuse of discretion on the part of the DILG "in not classifying [Andong] asa regular existing municipality and in not including said municipality in its records and officialdatabase as [an] existing regular municipality."21He characterizes such non-classification asunequal treatment to the detriment of Andong, especially in light of the current recognitiongiven to the eighteen (18) municipalities similarly annulled by reason ofPelaez. As appropriaterelief, Camid prays that the Court annul the DILG Certificationdated 21 November 2003; directthe DILG to classify Andong as a "regular existing municipality;" all public respondents, toextend full recognition and support to Andong; the Department of Finance and the Departmentof Budget and Management, to immediately release the internal revenue allotments of Andong;and the public respondents, particularly the DILG, to recognize the "Interim Local Officials" ofAndong.22

Moreover, Camid insists on the continuing validity of Executive Order No. 107. He argues thatPelaezhas already been modified by supervening events consisting of subsequent laws andjurisprudence. Particularly cited is our Decision in Municipality of San Narciso v. Hon. Mendez,23wherein the Court affirmed the unique status of the municipality of San Andres in Quezon as a"defactomunicipal corporation."24Similar to Andong, the municipality of San Andres wascreated by way of executive order, precisely the manner which the Court in Pelaez had declaredas unconstitutional. Moreover, SanNarcisocited, as Camid does, Section 442(d) of the LocalGovernment Code of 1991 as basis for the current recognition of the impugned municipality.The provision reads:

Section 442. Requisites for Creation. - xxx
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(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist andoperate as such. Existing municipal districts organized pursuant to presidential issuances orexecutive orders and which have their respective sets of elective municipal officials holdingoffice at the time of the effectivity of (the) Code shall henceforth be considered as regularmunicipalities.25

There are several reasons why the petition must be dismissed. These can be better discernedupon examination of the proper scope and application of Section 442(d), which does notsanction the recognition of just any municipality. This point shall be further explained further on.

Notably, as pointed out by the publi c respondents, through the Office of the Solicitor General

(OSG), the case is not a fit subject for the special civil actions of certiorari and mandamus, as itpertains to the de novoappreciation of factual questions. There is indeed no way to confirmseveral of Camids astonishing factual allegations pertaining to the purported continuingoperation of Andong in the decades since it was annulled by this Court. No trial court has hadthe opportunity to ascertain the validity of these factual claims, the appreciation of which isbeyond the function of this Court since it is not a trier of facts.

The importance of proper factual ascertainment cannot be gainsaid, especially in light of thelegal principles governing the recognition ofdefactomunicipal corporations. It has been opinedthat municipal corporations may exist by prescription where it is shown that the community hasclaimed and exercised corporate functions, with the knowledge and acquiescence of thelegislature, and without interruption or objection for period long enough to afford title byprescription.26These municipal corporations have exercised their powers for a long periodwithout objection on the part of the government that although no charter is in existence, it ispresumed that they were duly incorporated in the first place and that their charters had been

lost.27

They are especially common in England, which, as wel l-worth noting, has existed as astate for over a thousand years. The reason for the development of that rule in England isunderstandable, since that country was settled long before the Roman conquest by nomadicCeltic tribes, which could have hardly been expected to obtain a municipal charter in theabsence of a national legal authority.

In the United States, municipal corporations by prescription are less common, but it has beenheld that when no charter or act of incorporation of a town can be found, it may be shown tohave claimed and exercised the powers of a town with the knowledge and assent of thelegislature, and without objection or interruption for so long a period as to furnish evidence of aprescriptive right.28

What is clearly essential is a factual demonstration of the continuous exercise by the municipalcorporation of its corporate powers, as well as the acquiescence thereto by the otherinstrumentalities of the state. Camid does not have the opportunity to make an initial factualdemonstration of those circumstances before this Court. Indeed, the factual deficiencies aside,Camids plaint should have undergone the usual administrative gauntlet and, once that wasdone, should have been filed first with the Court of Appeals, which at least would have had thepower to make the necessary factual determinations. Camids seeming ignorance of theprinciples of exhaustion of administrative remedies and hierarchy of courts, as well as theconcomitant prematurity of the present petition, cannot be countenanced.

It is also difficult to capture the sense and viability of Camids present action. The assailedissuance is the Certificationissued by the DILG. But such Certificationdoes not pretend to bearthe authority to create or revalidate a municipality. Certainly, the annulment of the Certificationwill really do nothing to serve Camids ultimate cause- the recognition of Andong. Neither doesthe Certificationeven expressly refute the claim that Andong still exists, as there is nothing inthe document that comments on the present status of Andong. Perhaps the Certificationisassailed before this Court if only to present an actual issuance, rather than a long-standing habitor pattern of action that can be annulled through the special civil action of certiorari. Stil l, therelation of the Certificationto Camids central argument is forlornly strained.

These disquisitions aside, the central issue remains whether a municipality whose creation byexecutive fiat was previously voided by this Court may attain recognition in the absence of anycurative or reimplementing statute. Apparently, the question has never been decided before,San Narcisoand its kindred cases pertaining as they did to municipalities whose bases ofcreation were dubious yet were never judicially nullified. The e ffect of Section 442(d) of theLocal Government Code on municipalities such as Andong warrants explanation. Besides, theresidents of Andong who belabor under the impression that their town still exists, much lessthose who may comport themselves as the municipalitys "Interim Government," would be wellserved by a rude awakening.

The Court can employ a simplistic approach in resolving the substantive aspect of the petition,

merely by pointing out that the Municipality of Andong never existed.29Executive Order No. 107,which established Andong, was declared "null and void ab initio" in 1965 by this Court in Pelaez,along with thirty-three (33) other executive orders. The phrase "ab initio" means "from thebeginning,"30"at first,"31"from the inception."32Pelaezwas never reversed by this Court butrather it was expressly affirmed in the cases ofMunicipality of San Joaquin v. Siva,33Municipalityof Malabang v. Benito,34and Municipality of Kapalong v. Moya.35No subsequent ruling by thisCourt declared Pelaez as overturned or inoperative. No subsequent leg islation has been passedsince 1965 creating a Municipality of Andong. Given these facts, there is hardly any reason toelaborate why Andong does not exist as a duly constituted municipality.

This ratiocination does not admit to patent legal errors and has the additional virtue of blessedausterity. Still, its sweeping adoption may not be advisedly appropriate in light of Section 442(d)of the Local Government Code and our ruling in Municipality of San Narciso, both of which admitto the possibility ofdefactomunicipal corporations.

To understand the applicability ofMunicipality of San Narcisoand Section 442(b) of the LocalGovernment Code to the situation of Andong, it is necessary again to consider the ramificationsof our decision in Pelaez.

The eminent legal doctrine enunciated in Pelaezwas that the President was then, and still is,not empowered to create municipalities through executive issuances. The Court thereinrecognized "that the President has, for many years, issued executive orders creating municipalcorporations, and that the same have been organized and in actual operation . . . ."36However,the Court ultimately nullified only those thirty-three (33) municipalities, including Andong,created during the period from 4 September to 29 October 1964 whose existence petitionerVice-President Pelaez had specifically assailed before this Court. No pronouncement was madeas to the other municipalities which had been previously created by the President in the exerciseof power the Court deemed unlawful.

Two years after Pelaezwas decided, the issue again came to fore in Municipality of San Joaquinv. Siva.37The Municipality of Lawigan was created by virtue of Executive Order No. 436 in 1961.Lawigan was not one of the municipalities ordered annulled in Pelaez. A petition for prohibitionwas filed contesting the legali ty of the executive order, again on the ground that Section 68 ofthe Revised Administrative Code was unconstitutional. The trial court dismissed the petition, butthe Supreme Court reversed the ruling and entered a new decision declaring Executive OrderNo. 436 void abinitio. The Court reasoned without elaboration that the issue had already beensquarely taken up and settled in Pelaezwhich agreed with the argument posed by thechallengers to Lawigans validity.38

In the 1969 case ofMunicipality of Malabang v. Benito,39what was challenged is the validity ofthe constitution of the Municipality of Balabagan in Lanao del Sur, also created by an executiveorder,40and which, similar to Lawigan, was not one of the municipalities annulled in Pelaez. Thistime, the officials of Balabagan invoked de factostatus as a municipal corporation in order todissuade the Court from nullifying action. They alleged that i ts status as a de factocorporationcannot be collaterally attacked but should be inquired into directly in an action for quo warrantoat the instance of the State, and not by a private individual as it was in that case. In response,the Court conceded that an inquiry into the legal existence of a municipality is reserved to the
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State in a proceeding for quo warranto, but only if the municipal corporation is a defactocorporation.41

Ultimately, the Court refused to acknowledge Balabagan as a de factocorporation, even thoughit had been organized prior to the Courts decision in Pelaez. The Court declared void theexecutive order creating Balabagan and restrained its municipal officials from performing theirofficial duties and functions.42It cited conflicting American authorities on whether a de factocorporation can exist where the statute or charter creating it is unconstitutional.43But theCourts final conclusion was unequivocal that Balabagan was not a de factocorporation.1awphi1.nt

In the cases where a de factomunicipal corporation was recognized as such despite the factthat the statute creating it was later invali

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