Saturday, November 25, 2023

Court Decision in Bohol


Republic of the Philippines

REGIONAL TRIAL COURT OF BOHOL

7th Judicial Region

Branch 2

City of Tagbilaran

LARRY M. PAMUGAS,

Petitioner,

-versus-

ERICO ARISTOTLE AUMENTADO in

his capacity as Governor of the

Provincial Government of Bohol and

LEONCIO EVASCO, JR., SUCESO

ARCAMO, MACARIO DELUSA, DAN

LIM and EMMANUEL "WILLY"

RAMASOLA in their capacity as

Boa rd of Di rectors of the Office of

Governance Accountability and

Review (OGAR),

Respondents.

x-------------------------1

DECISION

CIVIL CASE NO. 9916

For:

CERTIORARI,

PROHIBITION AND

INJUNCTION WITH

PRAYER FOR

TEMPORARY

RESTRAINING ORDER

AND/OR WRIT OF

PRELIMINARY

INJUNCTION

This is a Special Civil Action for CERTIORARI, PROHIBITION AND

INJUNCTION against two (2) EXECUTIVE ORDERS issued by Bohol Provincial

Governor ERICO ARISTOTLE AUMENTADO, namely:

1. Executive Order No. 2 dated July 30, 2022, entitled "Establishing the

Office of Governance, Accountability and Review"; and

2. Executive Order No. 2-A dated December 16, 2022 entitled

"Expanding the Coverage of the Office of Governance, Accountability

and Review".

Before the court, however can embark to resolve the main issues in

the instant petition, it is confronted with procedural issues raised by the

Respondents as follows:

THAT PETITION FOR CERTIORARI AND PROHIBITION IS NOT PROPER

Respondents at the outset alleged that the Petition for CERTIORARI

AND PROHIBITION is not the appropriate legal remedy for the issues raised

in this case; that the Local Chief Executive's office is not a judicial or quasi

2

judicial body subject to questioning via the special civil action for certiorari

or prohibition; and that the correct procedure is by Petition for Declaratory

Relief. The petitioner claims otherwise.

Accordingly, the petitioner is not merely requesting the Honorable

Court to define and clarify his rights and obligations under the assailed

Executive Order Nos. 2 and 2-A of respondent Governor Aumentado.

Instead, he ultimately seeks for the Honorable Court to declare the same

issuances UNCONSTITUTIONAL or NULL AND VOID.

Petitioner also stated that the Supreme Court has repeatedly held

that a petition for certiorari and prohibition under Rule 65 of the Rules of

Civil Procedure is the proper remedy available to an aggrieved party not

only against acts that are committed with grave abuse of discretion

amounting to lack or excess of jurisdiction by judicial or quasi-judicial bodies

but also by other branches of government, offices, instrumentalities and

agencies exercising quasi-legislative functions.

In certain situations where the petitioner or petitioners therein

erroneously resorted to or availed of the remedy of declaratory relief under

Rule 63 of the Rules of Court, the Supreme Court treated these petitions for

certiorari and prohibition owing to the fact that the issues involved are of

transcendental importance. This buttresses petitioner's respectful assertion

that a petition for certiorari and prohibition and not a petition for

declaratory relief is the proper remedy availed of and resorted to by

petitioner. In gist, petitioner is accusing respondent Governor Aumentado of

having illegally and unlawfully "usurped legislative authority" which

properly belongs to the Sangguniang Panlalawigan of the province of Bohol.

In an En Banc Case, the Supreme Court pronounced that: "the writ of

certiorari or prohibition may be issued to correct errors of jurisdiction

committed not only by a tribunal, corporation, board or officer exercising

judicial, quasi-judicial or ministerial functions, but also to set right, undo,

and restrain any act of grave abuse of discretion, amounting to lack or

excess of jurisdiction by any branch or instrumentality of the Government,

even if the latter does not exercise judicial, quasi-judicial or ministerial

functions. This application is expressly authorized by the text of the second

paragraph of Section 1, Article VIII of the 1987 Constitution cited above."

1. The Petition failed to show a prima facie existence of grave abuse

discretion on the part of Governor Aumetnado in the issuance of

the assailed Executive Orders, much less on the part of the

respondents Evasco, Arcamo, Delusa, Lim and Ramasola when the

latter acted as designated members of the OGAR.

3

2. The Petition failed to show the existence of an actual case or

controversy.

3. The Petitioner failed to show that he possess the requisite locus

standi to file the present petition.

4. The Petitioner failed to show that the constitutional question

herein raised is the very lis mota presented in the controversy.

5. The Administrative Complaint Against Petitioner in their Individual

Capacity and as Taxpayers and Concerned Citizens.

In Yaphockun, et. al. vs. PRC, et.al.G.R. No. 2133141, the Supreme

Court reiterated its ruling in Araullo vs. Pres. Aquinoand elaborated thus:

Arau/lo v. Pres. Aquino 111had already clarified that petitions for

certiorari and prohibition filed before the Court are appropriate remedies to

raise constitutional issues and to review and/or prohibit or nullify the acts of

legislative and executive officials. These writs may be issued to set right,

undo and restrain any act of grave abuse of discretion amounting to lack or

excess of jurisdiction by any branch or instrumentality of the Government,

even if it does not exercise judiciat quasi-judicial or ministerial functions.

Thus:

The respondents' arguments and submissions on the procedural issue

are bereft of merit.

Section 1, Article VIII of the 1987 Constitution expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in

such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable and

enforceable, and to determine whether or not there has been a grave abuse

of discretion amounting to lack or excess of jurisdiction on the part of any

branch or instrumentality of the Government.

'rhus, the Constitution vests judicial power in the Court and in such

lower courts as may be established by law. In creating a lower court,

Congress concomitantly determines the jurisdiction of that court, and that

court, upon its creation, becomes by operation of the Constitution one of

the repositories of judicial power. However, only the Court is a

G.R. No. 213314 March 23, 2021

G.R. No. 214332 March 23, 2021

737 Phil. 457 (2014).

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constitutionally created court, the rest being created by Congress in its

exercise of the legislative power.

The Constitution states that judicial power includes the duty of the

courts of justice not only "to settle actual controversies involving rights

which are legally demandable and enforceable" but also "to determine

whether or not there has been a grave abuse of discretion amounting to

lack or excess of jurisdiction on the part of any branch or instrumentality of

the Government." It has thereby expanded the concept of judicial power,

which up to then was confined to its traditional ambit of settling actual

controversies involving rights that were legally demandable and

enforceable.

xxxx

What are the remedies by which the grave abuse of discretion

amounting to lack or excess of jurisdiction on the part of any branch or

instrumentality of the Government may be determined under the

Constitution?

The present Rules of Court uses two special civil actions for

determining and correcting grave abuse of discretion amounting to lack or

excess of jurisdiction. These are the special civil actions for certiorari and

prohibition, and both are governed by Rule 65. A similar remedy

of certiorari exists under Rule 64, but the remedy is expressly applicable only

to the judgments and final orders or resolutions of the Commission on

Elections and the Commission on Audit.

xxxx

Although similar to prohibition in that it will lie for want or excess of

jurisdiction, certiorari is to be distinguished from prohibition by the fact that

it is a corrective remedy used for the re-examination of some action of an

inferior tribunal, and is directed to the cause or proceeding in the lower

court and not to the court itself, while prohibition is a preventative remedy

issuing to restrain future action, and is directed to the court itself xx x

xxxx

With respect to the Court, however, the remedies of certiorari and

prohibition are necessarily broader in scope and reach, and the writ of

certiorari or prohibition may be issued to correct errors of jurisdiction

committed not only by a tribunal, corporation, board or officer exercising

judicial, quasi-judicial or ministerial functions but also to set right, undo

and restrain any act of grave abuse of discretion amounting to lack or

excess of jurisdiction by any branch or instrumentality of the

Government, even the latter does not exercise ·udicial uasi- ·udicial or

5

minister/al functions. This application is expressly authorized by the text of

the second paragraph of Section 1, xx x.

Thus, petitions for certiorari and prohibition are appropriate

remedies to raise constitutional issues and to review and/or prohibit or

nullify the acts of legislative and executive officials.

Necessarily, in discharging its duty under Section 1, x xx, to set right

and undo any act of grave abuse of discretion amounting to lack or excess

of jurisdiction by any branch or instrumentality of the Government, the

Court is not at all precluded from making the inquiry provided the challenge

was properly brought by interested or affected parties. The Court has been

thereby entrusted expressly or by necessary implication with both the

duty and the obligation of determining, in appropriate cases, the validity

of any assailed legislative or executive action. This entrustment is

consistent with the republican system of checks and balances. (citations

omitted, emphases and underscoring supplied)

Accordingly, the special civil action of certiorari may be availed of to

invoke the expanded scope of judicial power of the Court although the

provisions of the Rules of Court on certiorari and prohibition refers to the

exercise of judicial, quasi-judicial or ministerial functions by a board,

tribunal or officer.

It should be emphasized, however, that while the Constitution

expressly vested this Court with original jurisdiction over petitions

for certiorari, prohibition, and mandamus, among others, such power is

shared with the Court of Appeals (CA) and the Regional Trial Courts

(RTC). Such concurrence of jurisdiction does not grant litigants unrestrained

freedom of choice of the court where application for the writ may be filed.

There is a hierarchy of courts determinative of the venue of appeals which

should also serve as a general determinant of the proper forum for the

application for the extraordinary writs.

In Smart Communications, Inc. (Smart) v. National

Telecommunications Commission (NTC), this Court held that if what is being

assailed is the validity or constitutionality of a rule or regulation issued by

an administrative agency in the performance of its quasi-legislative

functions, then the RTC has jurisdiction to pass upon the same. The

determination of whether a specific rule or set of rules issued by an

administrative agency contravenes the law or the Constitution is within the

jurisdiction of the RTC. The doctrine of hierarchy of courts directs the parties

to file their petitions for extraordinary writs before the appropriate court of

lower rank. Non-compliance with this requirement is a ground for dismissal

of the petition.

6

As a matter of policy, therefore, where the issuance of an

extraordinary writ is also within the competence of the CA or the RTC, it is in

either of these courts that the specific action for the issuance of the writ

must be instituted. Nevertheless, the hierarchy of courts is not an iron-clad

rule. As we stressed in The Diocese of Bacolod v. Commission on

Elections,this Court has ''full discretionary power to take cognizance [of] and

assume jurisdiction [over] special civil actions for certiorari xx x filed directly

with it for exceptionally compelling reasons or if warranted by the nature of

the issues clearly and specifically raised in the petition," such as when what

is raised is a pure question of law.

In the recent case of Gios-Samar, Inc. v. Department of

Transportation and Communications, We clarified that the existence of

"special and important reasons" is not the decisive factor in deciding

whether to grant the plea for this Court's exercise of its original jurisdiction,

at the first instance, over the issuance of extraordinary writs. It is rather

the nature of the question raised by the parties in those exceptions that will

enable us to allow a direct action. Further, We declared that strict

observance of the doctrine of hierarchy of courts serves the purpose of

effectively filtering the cases that reach the Court, which should not only

meet the requisites of judicial review but also should not involve factual

questions indispensable to resolving the legal issue presented. Thus:

The doctrine of hierarchy of courts operates to: (1) prevent inordinate

demands upon the Court's time and attention which are better devoted to

those matters within its exclusive jurisdiction; (2) prevent further

overcrowding of the Court's docket; and (3) prevent the inevitable and

resultant delay, intended or otherwise, in the adjudication of cases which

often have to be remanded or referred to the lower court as the proper

forum under the rules of procedure, or as the court better equipped to

resolve factual questions.

The above ruling puts to rest the issue of the propriety of the instant

petition. Respondents themselves, in their Comment quoted Art. VIII

Section 1 of the Constitution stating thus:

Section 1. The judicial power shall be vested in one Supreme Court

and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable and

enforceable, and to determine whether or not there has been a grave abuse

of discretion amounting to Jack or excess of jurisdiction on the part of any

branch or instrumentality of the Government.

7

By so stating, respondents have practically conceded to the

correctness of the instant Petition as the above disquisition upheld the

Petitioner's contention. There is therefore no need for further elaboration

on the matter as the court now proceeds to tackle the other procedural

issues raised ..

PETITION FAILED TO COMPLY WITH THE REQUIREMENTS OF THE JUDICIAL

REVIEW

BE THAT AS IT MAY, Respondents claim that the present Petition

failed to comply with all the requirements of the exercise of judicial review

because:

1. The Petition failed to show a prima facie existence of grave abuse

discretion on the part of Governor Aumentado in the issuance of

the assailed Executive Orders, much less on the part of the

respondents Evasco, Arcamo, Delusa, Lim and Ramasola when the

latter acted as designated members of the OGAR.

2. The Petition failed to show the existence of an actual case or

controversy.

3. The Petitioner failed to show that he possesses the requisite locus

standi to file the present petition.

4. The Administrative Complaint Against Petitioner in their Individual

Capacity and as Taxpayers and Concerned Citizens.

Respondents alleged that for grave abuse of discretion to exist in the

exercise or in the performance of a governmental act, it is incumbent upon

the Petitioner to establish a "capricious or whimsical exercise of judgment"

on the part of Respondents Evasco, Arcamo, Delusa, Lim and Ramasola

"that is patent and gross as to amount to an evasion of positive duty of a

virtual refusal to perform a duty enjoined by law" when they acted

allegedly pursuant to their duty as designated members of the Office of

Governanance Accountability and Review (OGAR) under the assailed

Executive Order issued by Respondent Governor Erica Aristotle Aumentado.

NO ACTUAL CASE OR CONTROVERSY

Petitioner claims that the assailed Executive Orders created the

Office of Governance, Accountability and Review which office has subjected

petitioner to public hate, contempt and ridicule when it accused him in

public through print media, radio interviews and social media. The said

office through its Board of Directors has persecuted petitioner long before

he received a copy of the alleged administrative complaint against him.

8

Petitioner also stated that the instant petition is brought by him as the OIC

Provincial Agricultural and public employee of the Provincial of Bohol as

one who has sustained and continues to be in danger of sustaining personal

injury attributable to the creation of Executive Order No 2 and 2-A and

because of the proceedings that the OGAR has so far conducted and will

continue to conduct.

In their defense, respondents alleged that Petitioner failed to show

that he possesses the requisite locus standi to file the present petition.

They maintain that the petition shows that it is not the issuance of the

assailed Executive Orders, but rather, the actions attributed to individuals

who are identified as members of OGAR, particularly, Respondents Evasco

and Ramasola who allegedly caused a violation of Petitioner's rights. From

the allegations stated in the Petition, it is clear that the injury the Petitioner

claims to have suffered did not arise from the enforcement of the

challenged Executive Orders. Rather, the bare allegations of the Petitioner

are more in the nature of generalized grievances against the alleged

actuations and public pronouncements of the Respondents members of

OGAR, particularly Respondents Evasco and Ramasola. Consequently,

petitioner, has no standing to challenge the issuance of the assailed

Executive Order.

Responder:its also claim that petitioner failed to show that the

constitutional question herein raised is the very litis mota presented in the

controversy. This claim was supported by the assertion that the act of

respondent Aumentado violates due process and equal protection clause of

the Constitution that mandates that "no person shall be deprived of life,

liberty or property without due process and equal protection of law, nor

shall any person be denied the equal protection of the laws." Hence,

unconstitutional. In addition is the allegation that the sole purpose of the

Executive Order is to persecute political opponents as stated in the

Whereas Clauses. The respondents thus concludes that the above

allegations lend credence to their argument that Petitioner Pamugas filed

to show a clear and unequivocal breach of the Constitution, but merely

relied on doubtful, speculative, or argumentative assertions. Consequently,

the petitioner failed to show that the constitutional question is the very lis

mota of the instant petition.

In Republic vs. Maria Basa Express Jeepney Operators and Driver's

Assocation, et. al., Angat Tsuer Stop and Go, Inc. et. al., vs. Sec. Abaya, et.

al., XIMEX Delivery Express Inc. vs. DOTC and Cruz, et. al., vs. DOTC, et.

al., the Supreme Court elaborated:

G.R. No. 206484, August 16, 2022,

G.R. No. 212604, August 16, 2022.

G.R. No. 212682, August 16 ,2022;

9

An actual case or controversy "is one which involves "a conflict of

legal rights, an assertion of opposite legal claims, susceptible of judicial

resolution as distinguished from a hypothetical or abstract difference or

dispute. "It is a settled condition precedent that there be "an actual and

substantial controversy admitting of specific relief through a decree

conclusive in nature, as distinguished from an opinion advising what the law

would be upon a hypothetical state of facts." 7

In the case of Inmates of the New Bi/ibid Prison, Muntinlupa City v. De

Lima, this Court elaborated that an actual case or controversy exists in the

instance where there is a "contrariety of legal rights." It further declared

that the existence of an actual case or controversy does not call for concrete

acts, as an actual case may exist even in the absence of "tangible instances:

There is an actual case or controversy in the case at bar because

there is a contrariety of legal rights that can be interpreted and enforced

on the basis of existing law and jurisprudence. Respondents stand for the

prospective application of the grant of GCTA, TASTM, and STAL while

petitioners and intervenors view that such provision violates the

Constitution and Article 22 of the RPC. The legal issue posed is ripe for

adjudication as the challenged regulation has a direct adverse effect on

petitioners and those detained and convicted prisoners who are similarly

situated. There exists an immediate and/or threatened injury and they have

sustained or are immediately in danger of sustaining direct injury as a result

of the act complained of In fact, while the case is pending, petitioners are

languishing in jail. If their assertion proved to be true, their illegal

confinement or detention in the meantime is oppressive. With the prisoners'

continued incarceration, any delay in resolving the case would cause them

great prejudice. Justice demands that they be released soonest, if not on

time.

There is no need to wait and see the actual organization and operation of

the MSEC. Petitioners Edago[,J et al.[,] correctly invoked Our ruling

in Pimentel, Jr. v. Hon. Aguirre. There, We dismissed the novel theory that

people should wait for the implementing evil to befall on them before

they could question acts that are illegal or unconstitutional, and held that

"[by] the mere enactment of the questioned law or the approval of the

challenged action, the dispute is said to have ripened into a judicial

controversy even without any other overt act." Similar to Pimentel, Jr., the

real issue in this case is whether the Constitution and the RPC are

contravened by Section 4, Rule 1 of the /RR, not whether they are violated

by the acts implementing it. Concrete acts are not necessary to render the

tbid citing Private Hospitals Association of the Philippines, Inc. (PHAPI) v.

Medialdea, 842 Phil. 747, 782 (2018) and Information Technology Foundation of

the Philippines v. Commission on Elections, 499 Phil. 281, 305 (2005).

10

present controversy ripe. An actual case may exist even In the absence of

tangible instances when the assailed /RR has actually and adversely

affected petitioners. The mere issuance of the subject /RR has led to the

ripening of a judicial controversy even without any other overt act. If this

Court cannot await the adverse consequences of the law in order to

consider the controversy actual and ripe for judicial intervention, the same

can be said for an /RR. Here, petitioners need not wait for the creation of

the MSEC and be individually rejected in their applications. They do not

need to actually apply for the revised credits, considering that such

application would be an exercise in futility in view of respondents' insistence

that the law should be prospectively applied. If the assailed provision is

indeed unconstitutional and illegal, there is no better time than the present

action to settle such question once and for all. (Citations omitted.)

Xxx.

Closely linked to the concept of an actual or justiciable case or controversy is

the requirement of ripeness. A question is considered ripe for adjudication

when the act being challenged has had a direct adverse effect on the

individual or entity challenging it. To expand, a case is likewise considered

ripe for adjudication if the party alleging such fact can show that "he has

sustained or is immediately in danger of sustaining some direct injury as a

result of the act complained of." It cannot be denied that the petitioners in

G.R. Nos. 212604, 212682, 212800, being drivers and operators, are

similarly situated with the petitioners in G.R. No. 206486 such that an

immediate and threatened injury actually exists. The certainty of going

through the same experience as what the drivers had in G.R. No. 206486 is

imminent. To be apprehended and fined for violation of the provisions of the

JAO No. 2014-01 is not simply a hypothetical scenario as in fact, a group of

individuals has already been charged by its predecessor, D. 0. No. 2008-39,

which is part of the consolidated cases before this Court in G.R. No. 206486.

Xxx.

Given the presence of a definite and concrete set of facts that indicate a live

case before it, this Court may very well exercise its power of judicial review

to its full extent. Ultimately, as the petitions alleged acts or omissions on

the part of public respondents that exceed their authority, the petitioners

make a prima facie case for certiorari and actual case or controversy ripe

for adjudication exists. As emphatically held in Province of North Cotabato,

et al. v. The Government of the Republic of the Philippines Peace Panel on

Ancestral Domain (GRP), et al., "when an act of a branch of government is

seriously alleged to have infringed the Constitution, it becomes not only

right but[,] in fact[,] the duty of the [J]udiciary to settle the dispute."

rcitations omitted}

11

From the foregoing, the petitioner's case is ripe for adjudication as

the act being challenged - the creation of an OFFICE OF GOVERNANCE,

ACCOUNTABILITY AND REVIEW - has a direct adverse effect on the

petitioner as provincial government employee who has been charged by

th~ said offic~ with an administrative offense and who as a taxpayer may

validly question the budgetary allocation for the office's creation. The

respondents did not deny that in several instances through radio,

newspaper, and social media publications, respondents have actually

announced the fact that the administrative charges against the petitioner

were initiated by their office. Petitioner feels wronged by the actuation of

an office the existence of which he questions. There is an actual case or

controversy in the case at bar.

PETITIONER'S LOCUS STANDI

The court therefore agrees with the petitioner. He has the legal

standing to file the instant petition. Indeed, he has personal and substantial

interest in this case since he has allegedly sustained or will sustain direct

injury because of the governmental act that is being challenged.

Respondents did not deny that petitioner is one of the first respondents

against whom their office has filed an administrative complaint. This matter

after all was well publicized in local radio and newspapers in the province of

Bohol and in social media accounts of the OGAR members. The filing of the

case against Petitioner, though done in the individual capacity of some

OGAR Board of Directors' members, is undoubtedly a product of the office's

work and mandate as per the Executive Order issued by the respondent

Provincial Governor. Petitioner is clearly, one of the first subjects if not the

first subject in the present administration's war against "irregular and

questionable transactions" and fight for "clean governance". Nevertheless,

whether the administrative charge filed against the petitioner has merit is

not the petition's concern. The crux of the petition is whether the office

which initiated the filing of the petition against him is validly constituted as

such.

Funa vs. COA, et. al 8

., states thus:

As a general rule, a petitioner must have the necessary personality or

standing (locus standi) before a court will recognize the issues present~d.

In Integrated Bar of the Philippines v. Zamora, We defined locus stand, as:

xx x a personal and substantial interest in the case such that the party has

sustained or will sustain a direct injury as a result of the governmental act

that is being challenged. The term "interest" means a material inte_rest, an

interest in issue affected by the decree, as distinguished from mere interest

G.R. No. 192791, April 24, 2012.

12

in the question involved, or a mere incidental interest. The gist of the

question of standing is whether a party alleges "such personal stake in the

outcome of the controversy as to assure the concrete adverseness which

sharpens the presentation of issues upon which the court depends for

illumination of difficult constitutional questions."9

To have legal standing, therefore, a suitor must show that he has

sustained or will sustain a "direct injury" as a result of a government action,

or have a "material interest" in the issue affected by the challenged official

act. However, the Court has time and again acted liberally on the locus

standi requirements and has accorded certain individuals, not otherwise

directly injured, or with material interest affected, by a Government act,

standing to sue provided a constitutional issue of critical significance is at

stake. The rule on locus standi is after all a mere procedural technicality in

relation to which the Court, in a catena of cases involving a subject

of transcendental import, has waived, or relaxed, thus allowing nontraditional

plaintiffs, such as concerned citizens, taxpayers, voters or

legislators, to sue in the public interest, albeit they may not have been

personally injured by the operation of a law or any other government act.10

In David, 11 the Court laid out the bare minimum norm before the so

called "non-traditional suitors" may be extended standing to sue, thusly:

For taxpayers, there must be a claim of illegal disbursement of public

funds or that the tax measure is unconstitutional;

2.) For voters, there must be a showing of obvious interest in the validity of

the election law in question;

3.) For concerned citizens, there must be a showing that the issues raised

are of transcendental importance which must be settled early; and

4.) For legislators, there must be a claim that the official action complained

of infringes their prerogatives as legislators.

In the instant special civil action, Petitioner spelled out the injury

caused him by the publications of administrative charges filed against him

and the appropriation of public funds for the questioned office.

G.R. No. 141284, August 15, 2000, 338 SCRA 81; citing Baker v. Carr, 369 U.S.

186.

10 Abaya v. Ebdane, G.R. No. 167919, February 14, 2007, 515 SCRA 720; Agan v.

Philippine International Air Terminals Co., Inc., 450 Phil. 744 (2003); Del Marv.

PAGCOR, 400 Phil. 307 (2000).

11 David vs. Macapagal-Arroyon G.R. Nos. 171396, 171409, 171485, 171483,

171400, 171489 & 171424, May 3, 2006, 489 SCRA 161.

13

LITIS MOTA

There is no denying that the instant petition assailing the

constitutionality of the creation of OGAR is the very litis mota in the instant

case.

A requirement for the exercise of this Court's power of judicial

review is that the case must be ripe for adjudication:

Petitioners must, thus, comply with the requisites for the exercise of

the power of judicial review: (1) there must be an actual case or justiciable

controversy before this Court; (2) the question before this Court must be

ripe for adjudication; (3) the person challenging the act must be a proper

party; and (4) the issue of constitutionality must be raised at the earliest

opportunity and must be the very litis mota of the case. (Citation omitted)

An issue is ripe for adjudication when an assailed act has already

been accomplished or performed by a branch of government. Moreover,

the challenged act must have directly adversely affected the party

challenging it. In Philconsa v. Philippine Government: 12

For a case to be considered ripe for adjudication, it is a prerequisite

that an act had then been accomplished or performed by either branch of

government before a court may interfere, and the petitioner must allege

the existence of an immediate or threatened injury to himself as a result of

the challenged action. Petitioner must show that he has sustained or is

immediately in danger of sustaining some direct injury as a result of the-act

complained of. 13(Citations omitted)

There appears to be no reason why the court cannot consider that

the issue of constitutionality is the very motivation or the very litis mota in

the filing of this case. The administrative case filed against the petitioner

has no bearing whatsoever in the instant petition as it may or may not

prosper on its own merits. While respondents alleged that the

administrative case against petitioner was filed in the individual capacity of

the members of the OGAR and not by the body as a whole, there is no

dispute that such a case can be filed in the absence of the assailed office.

The court sustains thus the petitioner's argument that the issue raised in

this petition is its very litis mota as the issue of constitutionality cannot be

disposed of on some other ground such as the application of a statute or a

general law.

12

13 Ibid.

t

14

WHETHER OR NOT PRIVATE LAWYERS CAN REPRESENT OGAR

That the respondents in the instant case should only be represented

by the Provincial Legal Officer pursuant to Section 481 of the Local

Government Code of 1991 is likewise sustained. The instant petition assails

a government act i.e. the Provincial Chief Executive's issuance of Executive

Order 2 and 2-A.

In Domato-Togonon vs COA, et. al.14,

This Court {Supreme Court) stresses that Commission on Audit

Circular No. 98-002, which the Commission on Audit cites, amended

Commission on Audit Circular Nos. 86-255£15 dated April 2, 1986 and 95-

01116 dated December 4, 1995.

Circular No. 86-255 provides:

SUBJECT Inhibition against employment by government agencies and

instrumentalities, including government-owned or controlled corporations,

of private lawyers to handle their legal cases.

It has come to the attention of this Commission that notwithstanding

restrictions or prohibitions on the matter under existing laws, certain

government agencies, instrumentalities, and government-owned and/or

controlled corporations, notably government banking and financing

institutions, persist in hiring or employing private lawyers or Jaw

practitioners to render legal services for them and/or to handle their legal

cases in consideration of fixed retainer fees, at times in unreasonable

amounts, paid from public funds. In keeping with the retrenchment policy of

the present administration, this Commission frowns upon such a practice.

Accordingly, it is hereby directed that, henceforth, the payment out of public

funds of retainer fees to private law practitioners who are so hired or

employed without the prior written conformity and acquiescence of the

Solicitor General or the Government Corporate Counsel, as the case may be,

as well as the written concurrence of the Commission on Audit shall be

disallowed in audit and the same shall be a personal liability of the officials

concerned.

14 G.R. No. 224516, July 6, 2021.

15 Ibid citing COA Circular No. 86-255, available at <https://www.coa.gov.ph/index.php/2013-06-19-13-

06-41/1-circulars/category/4480-cy-1986?download=17043:cy-1986> (last accessed on July 6, 2021).1

16 Ibid citing COA Circular No. 95-2011, available at

<https://www.coa.gov.ph/phocadown1oadpap/userupload/lssuances/Circulars/Circ1995/C0A C95-

011.pdf> (last accessed on July 6, 2021).

15

This Circular shall take effect on April 15, 1986.

In Polloso v. Hon. Gangan, 17th is Court explained the purpose of Circular No.

86-255:

It bears repeating that the purpose of the circular is to curtail the

unauthorized and unnecessary disbursement of public funds to private

lawyers for services rendered to the government. This is in line with the

Commission on Audit's constitutional mandate to promulgate accounting

and auditing rules and regulations including those for the prevention and

disallowance of irregular, unnecessary, excessive, extravagant or

unconscionable expenditures or uses of government funds and

properties. (Citation omitted}

In 1995, by reason of this Court's pronouncement in Municipality of Pili/la,

Rizal v. Court of Appeals, the Commission on Audit issued Circular No. 95-

011 to amend Circular No. 86-255. It provides:

For the information and guidance of all concerned, quoted hereunder are

excerpts from the decision of the Supreme Court in the case of the

Municipality of Pili/la, Rizal vs. Court of Appeals, et. al., G. R. No. 105909,

promulgated on June 28, 1994:

"Under the above-provision (Section 1683 of the Revised Administrative

Code), complemented by Section 3, Republic Act No. 2264, the Local

Autonomy Law, only the Provincial Fiscal and the Municipal Attorney can

represent a Province or Municipality in their lawsuits. The provision is

mandatory. The municipality's authority to employ a private lawyer is

expressly limited only to situations where the Provincial Fiscal is disqualified

to represent it.

"For the aforementioned exception to apply, the fact that the Provincial

Fiscal Disqualified to handle the Municipality's case must appear on record.

In the instant case, there is nothing in the records to show that the

Provincial Fiscal is disqualified to act as Counsel for the Municipality of

Pili/la on appeal, hence the appearance of herein private Counsel is without

authority of law."

The decision of the Supreme Court in the above case clearly indicates that

where a government agency is provided by law with a legal officer or office

who or which can handle its legal requirements or cases in courts, it

(agency) may not be allowed to hire the services of private lawyers for a fee,

17 Polloso v. Gangan, 390 Phil. 1101 (2000) [Per J. Kapunan, En Banc].

16

chargeable against public funds, unless exceptional or extraordinary

circumstances obtain as exemplified in the above-cited case of Municipality

of Pili/la, Rizal vs. Court of Appeals, [et] al.

Accordingly and pursuant to this Commission's exclusive authority to

promulgate accounting and auditing rules and regulations, including for the

prevention and disallowance of irregular, unnecessary, excessive,

extravagant and/or unconscionable expenditure or uses of public funds and

property (Sec. 2-2, Art. IX-D, Constitution), public funds shall not be utilized

for payment of the services of a private legal counsel or law firm to

represent government agencies in court or to render legal services for them.

In the event that such legal services cannot be avoided or is justified under

extraordinary or exceptional circumstances, the written conformity and

acquiescence of the Solicitor General or the Government Corporate Counsel,

as the case may be, and the written concurrence of the Commission on

Audit shall first be secured before the hiring or employment of a private

lawyer or law firm.

This amends or modifies COA Circular No. 86-255, dated April 2, 1986 and

all other existing COA issuances inconsistent herewith.

On June 9, 1998, the Commission on Audit promulgated Circular No. 98-

002, amending Circular Nos. 86-255 and 95-011. Its pertinent portions

provide:

In view thereof, the last paragraph of COA Circulars Number 95-011 and 86-

255, dated December 4, 1995 and April 2, 1986, respectively, are hereby

amended insofar as LG Us are concerned, to read as follows:

"Accordingly and pursuant to this Commission's exclusive authority to

promulgate accounting and auditing rules and regulations, including for the

prevention and disallowance of irregular, unnecessary, excessive,

extravagant and/or unconscionable expenditure or uses of public funds and

property (Sec. 2-2, Art. IX-D, Constitutional, public funds shall not be utilized

for payment of the services of a private legal counsel or law firm to

represent government agencies and instrumentalities, including

government-owned or controlled corporations and local government units

in court or to render legal services for them. In the event that such legal

services cannot be avoided or is justified under extraordinary or exceptional

circumstances for government agencies and instrumentalities, including

government-owned or controlled corporations, the written conformity and

acquiescence of the Solicitor General or the Government Corporate Counsel,

as the case maybe, and the written concurrence of the Commission on Audit

shall first be secured before the hiring or employment of a private lawyer or

law firm. With respect to local government units, only in those instances

provided in par. 3(1), Section 481 of R.A. 7160, which states, thus:

17

"x xx x: Provided, That, in actions or proceedings where a component city or

municipality is a party adverse to the provincial government or to another

component city or municipality, a special legal officer may be employed to

represent the adverse party;"

may public funds be utilized as payment for the services of a private legal

counsel or law firm."

These circulars prohibit the hiring of private lawyers and law firms by

government agencies and instrumentalities, government-owned or

controlled corporations, and local government units to represent them in

court or to render legal services.

This rule, however, is not absolute. Local government units may avail the

services of private lawyers and law firms under certain conditions.

To reiterate, Circular No. 95-011 states that "where a government agency is

provided by law with a legal officer or office who or which can handle its

legal requirements or cases in courts, it (agency) may not be allowed to hire

the services of private lawyers for a fee, chargeable against public funds,

unless exceptional or extraordinary circumstances obtain[.]" Circular No. 98-

002 states that only in instances provided in Section 481(b}(3}(i) of the Local

Government Code may local government units use public funds to pay for a

private lawyer's or a law firm's services.

Furthermore, Mancenido v. Court of Appeals18teaches:

The Court has previously ruled on the representation of a local government

unit by a private attorney. In Municipality of Bocaue v. Manotok, ... and

succeeding cases, we held that only when the provincial fiscal is disqualified

may the municipal council be authorized to hire the services of a special

attorney. We reiterated this in De Guia v. Auditor General . .. In Enriquez, Sr.

v. Gimenez, . . . we enumerated the instances when the provincial public

prosecutor is disqualified from representing a particular municipality, i.e.,

when the jurisdiction of a case involving the municipality lies with the

Supreme Court, when the municipality is a party adverse to the provincial

government or to some other municipality in the same province, and when

in a case involving the municipality, the provincial prosecutor, his spouse, or

his child is involved as a creditor, heir, legatee, or otherwise. (Emphasis in

the original, citations omitted)

18 386 Phil. 627 (2000) [Per J. Quisumbing, Second Division]

18

In this case, petitioner asserts that the prohibition only contemplates the

hiring of a private lawyer or law firm to represent the local government unit

in a lawsuit. She says notarization is not included in the prohibition as it

does not involve the representation of any party to the contract.

Po/Jaso defines the extent of the phrase "handling of legal cases":

. . . [T}he prohibition covers the hiring of private lawyers to render any

form of legal service. It makes no distinction as to whether or not the legal

services to be performed involve an actual legal controversy or court

litigation. Petitioner insists that the prohibition pertains only to "handling

of legal cases," perhaps because this is what is stated in the title of the

circular. To rely on the title of the circular would go against a basic rule in

statutory construction that a particular clause should not be studied as a

detached and isolated expression, but the whole and every part of the

statute must be considered in fixing the meaning of any of its

part. (Emphasis supplied, citation omitted)

Evidently, the Commission on Audit's circulars cover any form of legal

service that may be offered by private lawyers or law firms.

In view of the cited COA circulars and jurisprudence, the court

sustains the petitioner in his prayer to disallow the respondents to be

represented by private lawyers in the instant case. Nevertheless, the court

takes note that the respondents were represented by the Provincial Legal

Office during the hearings set for this case in its COMMENT dated May 17,

2023 and in all the hearings called for this Petition. While the COMMENT

filed by the private lawyers cannot be taken cognizance of, the record shows

that the Office of the Provincial Legal Officer has duly filed its COMMENT to

the PETITION and the same cannot be stricken off from the record.

THE MERITS OF THE PETITION

The subject Executive Orders are hereunder quoted as follows:

EXECUTIVE ORDER NO. 2

Series of 2022-Aumentado

ESTABLISHING THE OFFICE OF GOVERNANCE ACCOUNTABILITY AND

REVIEW

WHEREAS, Section 1, Article XI of the 1987 Constitution provides

that, "A public office is a public trust. Public officers and employees

must, at all times, be accountable to the people, serve them with utmost

responsibility, integrity, loyalty, and efficiency, act with patriotism and

justice, and lead modest lives."

19

WHEREAS, for the past few years, allegations of irregular and

questionable transactions of the Provincial Governmetn of Bohol and by

its offices and employees have been reported in the mainstream and

social media;

WHEREAS, the present leadership of the Provincial Government

which has just assumed office ranits campaign on the platform of clean

governance and prioritizing the welfare of the Boholanos which resulted

to a landslide victory thereby demonstrating the strong support of the

people towards these objectives;

WHEREAS, the present leadership is committed to achieve the said

objectives. For this purpose there is a need to create an office which will

focus on reviewing the performance of the Provincial Government, its

officers and employees in relation to the legal mandates to determine

accountability and any possible culpability under the law.

NOW, THEREFORE, I, ERICO ARISTOTLE C. AUMENTADO, by virtue of

the powers vested in me by law, do hereby Order:

SECTION 1. CREATION - The Office of the Governance Accountability

and Review (OGAR) is hereby created under the Office of the Governor:

SECTION 2. FUNCTIONS - The OGAR shall perform the following

mandates:

(a) Identify actuations of the Provincial Government of Bohol

committed by its officers or employees prior to July 1, 2022 which

appears to be in violation of the Anti-Graft and Corrupt Practices

Act (R.A. 3019) and the Code of Conduct and Ethical Standards for

Government Officials and Employees (R.A. 6713).

(b) Probe and investigate such identified actuations to determine the

persons responsible or involved, whether public or private

individuals, and the manner by which the acts were committed;

(c) Recommend appropriate actions to the Governor pursuant to

finding such as, but not limited to, the filing of criminal, civil, or

administrative complaints against those concerned.

SECTION 3. COMPOSITION - The OGAR shall be chaired by a

person of known probity and integrity, and will be assisted by lawyers

of the same quality, researchers, and office personnel who shall all be

appointed or designated by the Governor.

20

SECTION 4. ACCESS TO RECORDS AND PRESERVATION OF

EVIDENCE - The OGAR is hereby authorized to access any and all

record of the Provincial Government in whatever format, request

access of records from other government offices, obtain sworn

statement of witnesses and resource persons, preserve such record,

objects or pieces of evidence related to the transactions under

investigation, and perform all acts necessary, inherent, and desirable

in order to accomplish its objectives. The Office of the Provincial

Legal Office shall provide operational support to the OGAR.

SECTION 5. FUNDING. - The operations of the OGAR and

compensation of its chairperson and personnel shall be allocated

from the budge of the Office of the Governor.

SECTION 6. REPEAL. - All orders, circulars and issuances

inconsistent herewith are hereby repealed, amended or modified

accordingly.

SECTION 7. SEPARABILITY. - If any part of this Order is declared

invalid or unconstitutional, the provisions unaffected thereby shall

remain valid and subsisting.

SECTION 8. EFFECTIVITY. - This Order shall take effect

immediately.

DONE, this 30th day of June, 2022 at the City of Tagbilaran,

Bohol, Philippines.

(SGD). ERICO ARISTOTLE C. AUMENTADO

Governor

EXECUTIVE ORDER NO. 2-A

EXPANDING THE COVERAGE OF THE OFFICE OF GOVERNANCE

ACCOUNTABILITY AND REVIEW

WHEREAS, Executive Order no. 2 entitled " ESTABLISHING THE

OFFICE OF GOVERNANCE ACCOUNTING AND REVIEW" (OGAR) was

issued by this Office on June 30, 2022;

WHEREAS, one of the functions of OGAR is to "Identify

actuations of the Provincial Government of Bohol committed by its

officers or employees prior to July 1, 2022 which appears to be in

violation of the Anti Graft and Corrupt Practices Act (R.A. 3019) and

21

the Code of Conduct and Ethical Standards for Government Officials

and Employees (R.A. 6713)";

WHEREAS, this Office subsequently pronounced that OGAR

shall not only look into actuations of past provincial administrations

but including the current administration as well as by removing the

cut-off date of July 1, 2022.

NOW THEREFORE, I, ERICO ARISTOTLE C. AUMENTADO, by

virtue of the powers vested in me by law, do hereby Order:

SECTION 1. COVERAGE EXPANSION - Section 2 (a) of Executive

Order No. 1 Series of 2022 - Aumentado is hereby amended to read

as follows:

"SECTION 2. FUNCTIONS - The OGAR shall perform the

following mandates:

"(a) Identify actuations of the Provincial Government of Bohol

committed by its officers or employees which appears to be in

violation of the Anti Graft and Corrupt Practices Act (R.A. 3019) and

the Code of Conduct and Ethical Standards for Government Officials

and Employees (R.A. 6713)."

SECTION 2. EFFECTIVITY. - This Order shall take effect

immediately.

DONE, this 16th day of December, 2022 at the City of Tagbilaran,

Bohol, Philippines.

(SGD.) ERICO ARISTOTLE C. AUMENTADO

Governor

The herein Petition alleged that the questioned Executive Orders are

unconstitutional and therefore invalid and inoperative because:

1. First, the local chief executive has no residual power like that of the

President of the Philippines. The creation of any office is beyond the

powers of the Governor. Hence, it cannot create any Office and

appropriate its funds thereto;

2. Second, the act of respondent Governor is contrary to law and

unconstitutional for violating the applicable provisions of the Local

Government Code of 1991 and the Equal Protection Clause of the

Constitution;

22

3. Third, the use of funds of the Office of the Governor for the

operations of the OGAR and compensation of its personnel is illegal

and constitutes malversation and violation of R.A. 3019 and R.A.

9184;

Petitioner thus prays for the respondent and OGAR to immediately

CEASE AND DESIST from implementing EXECUTIVE ORDER no. 2 and

Executive Order No. 2-A until further orders from the Court. It is

prayed that the respondents be stopped from carrying on acts

pursuant to the challenged executive orders.

Accordingly, the CREATION OF ANY OFFICE IS BEYOND THE POWERS

OF THE GOVERNOR. Art. 465 of the Local Government Code enumerates

the power of the Chief Executive of the Province, thus:

CHAPTER Ill

Officials and Offices Common to All Provinces

ARTICLE I

The Provincial Governor

SECTION 465. The Chief Executive: Powers, Duties, Functions, and

Compensation. - (a) The provincial governor, as the chief executive of the

provincial government, shall exercise such powers and perform such duties

and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which

is the general welfare of the province and its inhabitants pursuant to

Section 16 of this Code, the provincial governor shall:

(1) Exercise general supervision and control over all programs, projects,

services, and activities of the provincial government, and in this connection,

shall:

(i) Determine the guidelines of provincial policies and be responsible

to the sangguniang panlalawigan for the program of government;

(ii) Direct the formulation of the provincial development plan, with

the assistance of the provincial development council, and upon

approval thereof by the sangguniang panlalawigan, implement the

same;

(iii) Present the program of government and propose policies and

projects for the consideration of the sangguniang panlalawigan at

the opening of the regular session of the sangguniang

t

23

panlalawigan every calendar year and as often as may be deemed

necessary as the general welfare of the inhabitants and the needs

of the provincial government may require;

(iv) Initiate and propose legislative measures to the sangguniang

panlalawigan and as often as may be deemed necessary, provide

such information and data needed or requested by said

sanggunian in the performance of its legislative functions;

(v) Appoint all officials and employees whose salaries and wages are

wholly or mainly paid out of provincial funds and whose

appointments are not otherwise provided for in this Code, as well

as those he may be authorized by law to appoint;

(vi) Represent the province in all its business transactions and sign in

its behalf all bonds, contracts, and obligations, and such other

documents upon authority of the sangguniang panlalawigan or

pursuant to law or ordinance;

(vii) Carry out such emergency measures as may be necessary during

and in the aftermath of man made and natural disasters and

calamities;

(viii) Determine the time, manner and place of payment of salaries or

wages of the officials and employees of the province, in

accordance with law or ordinance;

(ix) Allocate and assign office space to provincial and other officials

and employees who, by law or ordinance, are entitled to such

space in the provincial capitol and other buildings owned or

leased by the provincial government;

(x) Ensure that all executive officials and employees of the province

faithfully discharge their duties and functions as provided by law

and this Code, and cause to be instituted administrative or judicial

proceedings against any official or employee of the province who

may have committed an offense in the performance of his official

duties;

(xi) Examine the books, records and other documents of all offices,

officials, agents or employees of the province and, in aid of his

executive powers and authority, require all national officials and

employees stationed in the province to make available to him such

books, records, and other documents in their custody, except

those classified by law as confidential;

24

{xii) Furnish copies of executive orders issued by him to the Office of

the President within seventy-two (72) hours after their issuance;

{xiii) Visit component cities and municipalities of the province at least

once every six (6) months to deepen his understanding of

problems and conditions, listen and give appropriate counsel to

local officials and inhabitants, inform the officials and inhabitants

of component cities and municipalities of general laws and

ordinances which especially concern them, and otherwise conduct

visits and inspections to ensure that the governance of the

province will improve the quality of life of the inhabitants;

{xiv) Act on leave applications of officials and employees appointed by

him and the commutation of the monetary value of leave credits

in accordance with law;

{xv) Authorize officials trips of provincial officials and employees

outside of the province for a period not exceeding thirty (30) days;

{xvi) Call upon any national official or employee stationed in or

assigned to the province to advise him on matters affecting the

province and to make recommendations thereon; coordinate with

said official or employee in the formulation and implementation

of plans, programs and projects; and when appropriate, initiate an

administrative or judicial action against a national government

official or employee who may have committed an offense in the

performance of his official duties while stationed in or assigned to

the province;

{xvii) Authorize payment for medical care, necessary transportation,

subsistence, hospital or medical fees of provincial officials and

employees who are injured while in the performance of their

official duties and functions, subject to availability of funds;

(xviii) Represent the province in inter-provincial or regional sports

councils or committees, and coordinate the efforts of component

cities or municipalities in the regional or national palaro or sports

development activities;

(xix) Conduct an annual palarong panlalawigan, which shall feature

traditional sports and disciplines included in national and

international games in coordination with the Department of

Education, Culture and Sports; and

25

(xx) Submit to the Office of the President the following reports: an

annual report containing a summary of all matters pertinent to

the management, administration and development of the

province and all information and data relative to its political, social

and economic conditions; and supplemental reports when

unexpected events and situations arise at any time during the

year, particularly when man-made or natural disasters or

calamities affect the general welfare of the province, region or

country;

(2) Enforce all laws and ordinances relative to the governance of the

province and the exercise of the appropriate corporate powers provided for

under Section 22 of this Code, implement all approved policies, programs,

projects, services and activities of the province and, in addition to the

foregoing, shall:

(i) Ensure that the acts of the component cities and municipalities of

the province and of its officials and employees are within the

scope of their prescribed powers, duties and functions;

(ii) Call conventions, conferences, seminars, or meetings of any

elective and appointive officials of the province and its component

cities and municipalities, including national officials and

employees stationed in or assigned to the province, at such time

and place and on such subject as he may deem important for the

promotion of the general welfare of the province and its

inhabitants;

(iii) Issue such executive orders for the faithful and appropriate

enforcement and execution of laws and ordinances;

(iv) Be entitled to carry the necessary firearm within his territorial

jurisdiction;

(v)

(vi)

In coordination with the mayors of component cities and

municipalities and the National Police Commission, formulate the

peace and order plan of the province and upon its approval,

implement the same in accordance with R.A. No. 6975;

Call upon the appropriate national law enforcement agencies to

suppress disorder, riot, lawless violence, rebellion or sedition o~ to

apprehend violators of the law when public interest so requires

and the police forces of the component city or municipality where

the disorder or violation is happening are inadequate to cope with

the situation or the violators;

26

(3) Initiate and maximize the generation of resources and revenues, and

apply the same to the implementation of development plans, program

objectives and priorities as provided for under Section 18 of this Code,

particularly those resources and revenues programmed for agro-industrial

development and country-wide growth and progress and, relative thereto,

shall:

(i) Require each head of an office or department to prepare and

submit an estimate of appropriations for the ensuing calendar

year, in accordance with the budget preparation process under

Title Five, Book II of this Code;

(ii) Prepare and submit to the sanggunian for approval the executive

and supplemental budgets of the province for the ensuing

calendar year in the manner provided for under Title Five, Book II

of this Code;

(iii) Ensure that all taxes and other revenues of the province are

collected, and that provincial funds are applied to the payment of

expenses and settlement of obligations of the province, in

accordance with law or ordinance;

(iv) Issue licenses and permits and suspend or revoke the same for

any violation of the conditions upon which said licenses or permits

had been issued, pursuant to law or ordinance;

(v) Adopt adequate measures to safeguard and conserve land,

mineral, marine, forest and other resources of the province, in

coordination with the mayors of component cities and

municipalities;

(vi) Provide efficient and effective property and supply management

in the province; and protect the funds, credits, rights, and other

properties of the province; and

(vii) Institute or cause to be instituted administrative or judicial

proceedings for violation of ordinances in the collection of taxes,

fees or charges, and for the recovery of funds and property, and

cause the province to be defended against all suits to ensure that

its interests, resources and rights shall beadequately protected.

(4) Ensure the delivery of basic services and the provision of adequate

facilities as provided for under Section 17 of this Code, and in addition

thereto, shall:

27

(i) Ensure that the construction and repair of roads and highways

funded by the national government shall be, as far as practicable,

carried out in a spatially contiguous manner and in coordination

with the construction and repair of the roads and bridges of the

province and of its component cities and municipalities; and

(ii) Coordinate the implementation of technical services by national

offices for the province and its component cities and

municipalities, including public works and infrastructure programs

of the provincial government and its component cities and

municipalities;

(5) Exercise such other powers and perform such other duties and functions

as may be prescribed by law or ordinance.

(c) The provincial governor shall receive a minimum monthly compensation

corresponding to Salary Grade thirty (30) prescribed under R.A. No. 6758

and the implementing guidelines issued pursuant thereto.

The petition stressed that nowhere in the powers of the Governor

enumerated above or in the Local Government Code is it stated that the

Governor has the power to create or establish an office such as the Office of

Accountability, Governance and Review. Instead, such power is vested upon

the Sangguniang Panlalawigan under Sec. 463 of the Local Government

Code, which states:

(c) The Sangguniang Panlalawigan may:

(1) Maintain existing offices not mentioned in subsections (a) and (b)

hereof;

(2) Create such other offices as may be necessary to carry out the

purposes of the provincial government; or

(3) Consolidate the functions of any office with those of another in the

interest of efficiency and economy

Petitioner claims that the foregoing only shows that only the

Sangguniang Panlalawigan and not the Office of the Governor is vested with

the power to create an office.

Petitioner elaborates that the power to investigate and cause to be

investigated any local official or employee for administrative neglect or

misconduct is lodged with the Office of the Provincial Legal Officer and

28

quoted Section 481 (b) (iv) of the Local Government Code of 1991 as

follows:

ARTICLE XI

The Legal Officer

SECTION 481. Qualifications, Terms, Powers and Duties. - (a) Xxx.

(b) The legal officer, the chief legal counsel of the local government unit,

shall take charge of the office of legal services and shall:

(1) XXX,

(2) XXX

(3) In addition to the foregoing duties and functions, the legal officer

shall:

(i) Xxx.

(ii)Xxx.

(iii) Xxx.

(iv) Investigate or cause to be investigated any local official or employee

for administrative neglect or misconduct in office, and recommend

appropriate action to the governor, mayor or sanggunian, as the case may

be;

Petitioner then concludes that Respondent Governor Aumentado

"should not have created another office that performs the redundant,

similar, duplicitous and (to a certain extent) overlapping functions of the

Office of the Provincial Legal Officer enumerated under Section 481 of the

Local Government Code". Accordingly, OGAR has the same function of the

Provincial Legal Officer and "by allocating millions of pesos as its operation

budget and compensation for its Board of Directors, respondent has

violated his sworn duty to protect the funds of the province and implement

economical governance."

Secondly, petitioner asserts that THE ACT OF THE RESPONDENT

GOVERNOR IS CONTRARY TO LAW AND UNCONSTITUTIONAL FOR

VIOLATING THE EQUAL PROTECTION CLAUSE

The petition also insists that Executive Order No. 2, notwithstanding

the amendment in Executive Order No. 2-A is violative of equal protection

clause. With the mandate to "identify actuations of the Provincial

Government of Bohol committed by its officers or employees, for the past

years and prior to July 1, 2022 which appears to be in violation of the Anti-

Graft and Corrupt Practices Act and the Code of Conduct and Ethical

Standards for Government Officials and Employees" buttressed the true

intent of the issuances to single out the previous administration and its

29

officers and employees as the Whereas Clauses remained the same. Thus,

just like the Supreme Court ruling in Biraogo vs. Philippine Truth

Commission, the creation of the OGAR is a class legislation or a law that

discriminates against some, but favors others, and is prohibited19 is it is a

violation of the "Equal Protection Clause".

Lastly, the USE OF FUNDS OF THE GOVERNOR FOR THE OPERATIONS

OF THE OGAR AND COMPENSATION OF ITS PERSONNEL IS ILLEGAL AND

CONSTITUTES MALVERSATION AND VIOLATION OF R.A. 3019 AND R.A.

9184.

The petition stressed that since there is no law or ordinance creating

OGAR and providing for its budget, appropriating for and using funds from

the Office of the Governor to support the operation of the OGAR is

malversation and is a violation of RA 3019 and RA 9184. The same should

therefore be restrained to prevent further dissipation and misuse of public

funds.

Respondents' COMMENT of May, 2023, answered the above petition

in this wise:

PETITION FAILED TO SHOW A PRIMA FACIE EXISTENCE OF GRAVE

ABUSE OF DISCRETION IN THE ISSUANCE OF THE ASSAILED EXECUTIVE

ORDERS

The Local Government provides:

Section 86. Administrative Investigation - In any local government

unit, administrative investigation may be conducted by a person or a

committee duly authorized by the local chief executive. Said person or

committee shall conduct hearings on the cases brought against appointive

local officials and employees and submit their findings and

recommendations to the local chief executive concerned within fifteen days

from the conclusion of the hearings. The administrative cases herein

mentioned shall be decided within ninety (90) days from the time the

respondent is formally notified of the charges.

Section 87. Disciplinary Jurisdiction - Except as otherwise provided by

law, the local chief executive may impose the penalty of removal from

service, demotion in rank, suspension for not more than one (1) years

without pay, fine in an amount not exceeding six (6) months' salary, or

reprimand and otherwise discipline subordinate officials and employees

under his jurisdiction. If the penalty imposed is suspension without pay for

not more than thirty (30) days, his decision shall be final. If the penalty

19 People v. Chan, 65 Phil. 611, 613 (1938) [Per J. Concepcion, First Division

30

imposed is heavier than suspension shall be appealable to the Civil Service

Commission, which shall decide the appeal within thirty (30) days from

receipt thereof.

Respondents likewise cited the other powers of the Chief Executive of

the Province of Bohol under Art. 465 of the Local Government Code, to wit:

Sec. 465. The Chief Executive Powers, Duties, Functions and

Compensation.

XXX.

(b) For efficient, effective and economical governance the purpose of

which is the general welfare of the province and its inhabitants pursuant to

Section 16 of this Code, the provincial governor shall:

XXX.

(v) Appoint all officials and employees whose salaries and wages are

wholly or mainly paid out of provincial funds and whose appointments are

not otherwise provided for in this Code as well as those he may be

theorizeded by law to appoint:

XXX.

(x) Ensure that all executive officials and employees of the province

faithfully discharge their duties and functions as provided by law and this

Code, and cause to be instituted administrative or judicial proceedings

against any official or employee of the province who may have committed

an offense in the performance of his official duties;

THE CREATION OF ANY OFFICE IS BEYOND THE POWERS OF THE

GOVERNOR.

The aforequoted prov1s1ons in the Local Government Code

enumerating the duties and functions of the Office of the Governor and

that of the Sangguniang Panlalawigan shows that the Local Chief Executive

of the province has no power to create an office. The said power is lodged

with the Office of the Sangguniang Panlalawigan.

While it is true that Sec. 86 of the Local Government Code allows the

Office of the Governor to appoint a person or a committee to conduct

administrative investigation, a "committee" stated in Sec. 86 of the Local

Government Code is different from an "office" contemplated under 463 (c)

(2) under the same Code. A committee is a "group of people appointed for a

31

specific function typically consisting of members of a larger group1120 while

an office or a public office for this matter is defined as the "right, authority,

and duty created and conferred by law, by which for a given period, either

fixed by law or enduring at the pleasure of the appointing power, an

individual is invested with some portion of the sovereign functions of the

government, to be exercised by him for the benefit of the public. 21 The

Merriam-Webster dictionary defines 'office' as "a special duty, charge, or

position conferred by an exercise of governmental authority and for a public

purpose: a position of authority to exercise a public function and to receive

whatever emoluments may belong to it," Clearly, the OFFICE OF

GOVERNANCE, ACCOUNTABILITY AND REVIEW is not just a COMMITTEE. It

is not just a small portion of a larger group tasked to a specific function. It is

an OFFICE created and conferred by an EXECUTIVE ORDER with the power

to investigate public officers of any administrative wrongdoing.

The OGAR 's COMPOSITION is as follows:

SECTION 3. COMPOSITION - The OGAR shall be chaired by person of

known probity and integrity, and will be assisted by lawyers of the same

quality, researchers, and office personnel who shall all be appointed or

designated by the Governor.

With the above composition, it cannot be said that the Provincial

Governor's intention was just to form a committee and that the term

"office" is just a misnomer. Clearly, the intention was to create an office in

its real form and meaning such that the entire entity is complete with

assisting lawyers, researchers, and office staff.

While the court finds nothing amiss in the intention of the Provincial

Governor in investigating dishonest and corrupt government officials it is

not his purpose in creating the office that is being assailed in this petition.

The court simply must define the line between the propriety or impropriety

of the action as stated in the Local Government Code. That the creation of

the office is beyond the powers vested upon the local chief executive is

unfortunately, evident to the mind of the court.

Nevertheless, the court holds that the equal protection clause is not

violated with the issuance of the subject Executive Orders. Executive Order

2-A specifically stated that the erring officials subject of the investigation

will cover all provincial employees from before, during and after the

administration of respondent Governor Erica Aristotle Aumentado. Indeed,

20 Definition from Oxford Languages

https://www.bing.com/search?pglt=43&q=committee+meaning&cvid=82dbbdd871254283b591

4281495c0606&gs_lcrp=Eg2jaHJvbWUqBggAEAAYQDIGCAAQABhAMgclARDrBxhA

21 DE LEON AND DE LEON JR., THE LAW ON PUBLIC OFFICERS AND ELECTION LAW,

2000 Edition, p. 1.

32

the executive orders avoided the flaw of the Truth Commission created by

the Aquino administration in Biraogo vs. The Philippine Truth Commission

of 201022 and Lagman, et. al., vs. Exec. Sec. Ochoa 23

• However, the

questioned Orders constitute an encroachment on the power of the Office

of the Sangguniang Panlalawigan and cannot be allowed.

In Kapisanan ng mga Kawani ng Energy Regulatory Board v.

Commissioner Fe Bari, 24 it was stressed that:

A public office is created by the Constitution or by law or by an officer

or tribunal to which the power to create the office has been delegated by

the legislature. 25

The case of Atienza vs. Villarosa26 clarified that:

With Rep. Act No. 7160, the union of legislative and executive powers

in the office of the local chief executive under the BP Big. 337 has been

disbanded, so that either department now comprises different and nonintermingling

official personalities with the end in view of ensuring a better

delivery of public service and provide a system of check and balance

between the two.27

Senator Aquilino Pimentel, the principal author of Rep. Act No. 7160,

explained that "the Vice-Governor is now the presiding officer of

the Sangguniang Panlalawigan. The City Vice-Mayor presides at meetings

of the Sangguniang Panlungsod and the Municipal Vice-Mayor at the

sessions of the Sangguniang Bayon. The idea is to distribute powers among

elective local officials so that the legislative, which is the Sanggunian, can

properly check the executive, which is the Governor or the Mayor and vice

versa and exercise their functions without any undue interference from one

by the other." (Citation omitted).

The avowed intent of Rep. Act. No. 7160, therefore, is to vest on

the Sangguniang Panlalawigan's independence in the exercise of its

legislative functions vis-a-vis the discharge by the Governor of the executive

functions.

Under sec. 48 of Rep. Act No. 7160 The Local legislative power shall

be exercised by the sangguniang panlalawigan for the province; xx x.

22 G.R. No. 192935, December 07, 2010

23 G.R. No. 193036, December 07, 2010.

24 G.R. No. 150974, June 29, 2007, 526 SCRA 1.

25 R.E. AGPALO, PHILIPPINE ADMINISTRATIVE LAW 5 (2004).

26 G.R. No. 161081, May 10, 2005.

21 Gamboa, Jr. v. Aguirre, Jr., G.R. No. 134213, 20 July 1999, 310 SCRA 867.

33

The "local legislative power shall be vested in the SP,11 which is "the

legislative body of the province,".

The assailed Executive Orders are therefore, clearly not in keeping

with the intent of Rep. Act No. 7160 and their implementation should thus

be permanently enjoined.

WHEREFORE, PREMISES CONSIDERED, THE PETITION IS GRANTED.

EXECUTIVE ORDERS 2 AND 2-A issued by GOVERNOR ERICO ARISTOTLE

AUMENTADO are hereby DECLARED NULL AND VOID for being

UNCONSTITUTIONAL as the latter's office went beyond the powers and

duties of the local chief executive under sec. 465 of the LOCAL

GOVERNMENT CODE and encroached upon the powers of the

SANGGUNIANG PANLALAWIGAN under Sec. 463 (3) of the same code.

Judgment is therefore rendered:

DIRECTING RES PON DENT GOVERNOR ERICO ARISTOTLE

AUMENTADO, THE BOARD OF DIRECTORS OF OGAR, RESPONDENTS

LEONCIO EVASCO, JR., SUCESO ARCAMO, MACARIO DELUSA, DAN LIM AND

EMMANUEL RAMASOLA as well as all persons acting on the basis of

Executive Orders No. 2 and 2-A to immediately CEASE AND DESIST from

carrying on acts pursuant to the subject Executive Orders. The Office of

Governance Accountability and Review (OGAR) created by the said

Executive Orders as well as its respondent Board of Directors are hereby

enjoined f{om performing its functions under the said Executive Orders.

 

SO ORDERED. ---

City of Tagbilaran: October 31, 2023.

El-MARCOS