WON the information against him can be quashed under any of

the grounds in Sec 2 Rule 117 ROC

When the statute is clear and explicit, there is hardly any room for court ratiocination of the law. RA 3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution against him. Such preventive suspension is mandatory, and there are no ‘ifs’ and ‘butts’ about it.

Removal

Aguinaldo vs. Santos (1992)

Issue: W/N his re-election to Governor position has rendered the

administrative case pending before SC moot and academic.

Held: YES

RULE: A public official can not be removed for administrative

misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. It is assumed that the electorate did this with knowledge of his life and character.

Such rule finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. The 1987 Constitution has not repealed the power of DLG Sec to suspend or remove local government officials as alter ego of the President.

The Sec’s power to remove is anchored on the Constitution and a statutory grant from the legislature:

- Constitutional basis: in Articles VII (17) and X (4) – which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected by him

- The statutory grant in BP337 has constitutional roots - having been enacted by the Batas Pambansa pursuant to Art XI, Sec2 of 1973 Constitution which states that the National Assembly shall... provide for the qualifications, election and removal... of local government officials

- a similar provision is found in Art X, Sec3 of 1987 Constitution that the Congress shall... provide for the qualifications, election, appointment, and removal... and all other matters

relating to the organization and

operation of the local units.

Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner of removal of local government officials, is found in the 1973 and 1987 Constitutions, then it cannot be said that BP337 was repealed by the effectivity of the present Consitution.

Moreover, the Court had stated in the case Bagabuyo vs. Davide that BP337 remained in force despite the effectivity of the present Constitution, until such time as the proposed 1991 LGC is

A m u s i n

g l y

S C A r y

THE C2005 LOCAL GOVERNMENT REVIEWER

approved. The power of DLG Sec to remove local elective government officials is found in Sec60 and 61 of BP337.

Pablico vs. Villpando (2002) Facts:

An administrative complaint against Mayor Villapando was filed with the Sangguniang Panlalawigan of Palawan for abuse of authority and culpable violation of Constitution - Mayor allegedly entered into a consultancy agreement with Orlando Tiape, a losing mayoralty candidate which amounted to an appointment in a government position w/in the prohibited 1 yr period under Art. IX-B Sec. 6 of Constitution.

Sangguniang Panlalawigan found Mayor guilty and imposed the penalty of dismissal from service. Affirmed by the Office of the President – so Vice Mayor Pablico became Mayor.

CA declared the decision rendered as void.

Held: Local legislative bodies and/or the Office of the President

cannot validly impose the penalty of dismissal or removal from service on erring local elective officials.

It is clear from Sec. 60 of LGCode that: xxx An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

In the case of Salalima v Guingona, the Office of the President is without any power to remove elected officials since such power is exclusively vested in the proper courts as expressly provided in Sec. 60.

Under Art 24(b) IRR of LGC, it is provided that an elective official may be removed by order of proper court or the disciplining committee (SB, SP and OP) whichever first acquires jurisdiction to the exclusion of the other.

HOWEVER, it was held in Salalima that this grant to the disciplining authority clearly beyond the power of the oversight committee that prepared the IRR as no IRR may alter, amend or contravene the LGCode.

Even Senator Pimentel expressed doubt as to the validity of this rule.

There is very clear legislative intent to make the power of removal a judicial prerogative as seen in the Senate deliberations.

The law on suspension or removal of public officials must be strictly construed since what is involved is not just an ordinary public official but one chosen by people through their right of suffrage. If there is unrestricted authority to suspend/remove public officials, there will be injustice and harm to public interest.

DanGat Notes: So what does this ruling imply?

That remedies other than dismissal can be imposed by the Disciplining Authority, and if the remedy is removal, one must go to the courts?

What happens to the power of the President under the Constitution (general supervision over local government units) to remove and discipline local officials as held in the cases of Ganzon vs. CA and Aguinaldo vs. Mojica?

What would be the procedure to ask for the removal of the local official with the courts?

Recall – Local Government Code

Sec69. By Whom Exercised. — The power of recall for loss of

confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs.

Sec70. Initiation of the Recall Process. —

(a) Recall may be initiated by a preparatory recall assembly or by the registered voters of the local government unit to which the local elective official subject to such recall belongs.

(b) There shall be a preparatory recall assembly in every province, city, district, and municipality which shall be composed of the following:

(1) Provincial level. — All mayors, vice-mayors, and sanggunian members of the municipalities and component cities;

(2) City level. — All punong barangay and sanggunian barangay members in the city;

(3) Legislative District level. — In case where sangguniang panlalawigan members are elected by district, all elective municipal officials in the district; and in cases where sangguniang panlungsod members are elected by district, all elective barangay officials in the district; and (4) Municipal level. — All punong barangay and

sangguniang barangay members in the municipality.

(c) A majority of all the preparatory recall assembly members may convene in session in a public place and initiate a recall proceedings against any elective official in the local government unit concerned. Recall of provincial, city, or municipal officials shall be validly initiated through a resolution adopted by a majority of all the members of the preparatory recall assembly concerned during its session called for the purpose.

(d) Recall of any elective provincial, city, municipal, or barangay official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.

(1) A written petition for recall duly signed before the election registrar or his representative, and in the presence of a representative of the petitioner and a representative of the official sought to be recalled and, and in a public place in the province, city, municipality, or barangay, as the case may be, shall be filed with the

A m u s i n

g l y

S C A r y

THE C2005 LOCAL GOVERNMENT REVIEWER

COMELEC through its office in the local government unit concerned. The COMELEC or its duly authorized representative shall cause the publication of the petition in a public and conspicuous place for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of verifying the authenticity and genuineness of the petition and the required percentage of voters.

(2) Upon the lapse of the aforesaid period, the COMELEC or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled.

Sec71. Election on Recall. — Upon the filing of a valid resolution

or petition for recall with the appropriate local office of the COMELEC, the Commission or its duly authorized representative shall set the date of the election on recall, which shall not be later than thirty (30) days after the filing of the resolution or petition for recall in the case of the barangay, city, or municipal officials. and forty-five (45) days in the case of provincial officials. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon.

Sec72. Effectivity of Recall. — The recall of an elective local

official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office.

Sec73. Prohibition from Resignation. — The elective local

official sought to be recalled shall not be allowed to resign while the recall process is in progress.

Sec74. Limitations on Recall. —

(a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election.

Sec75. Expenses Incident to Recall Elections. — All expenses

incident to recall elections shall be borne by the COMELEC. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the disposal of the COMELEC for the conduct of recall elections.