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. Aquino2 and elaborated thus:
Arau/lo v. Pres. Aquino 1113 had 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
1 G.R. No. 213314 March 23, 2021
2 G.R. No. 214332 March 23, 2021
3 737 Phil. 457 (2014).
4
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 i 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., 4 Angat Tsuer Stop and Go, Inc. et. al., vs. Sec. Abaya, et.
al., 5 XIMEX Delivery Express Inc. vs. DOTC 6 and Cruz, et. al., vs. DOTC, et.
al., the Supreme Court elaborated:
4 G.R. No. 206484, August 16, 2022,
5 G.R. No. 212604, August 16, 2022.
6 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
7 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
8 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.
9 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 I 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 I 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
