Vargas v. Mamba

THIRD DIVISION

[G.R. No. 236031. February 28, 2018.]

MELVIN K. VARGAS, JR., IN HIS CAPACITY AS VICE GOVERNOR AND PRESIDING OFFICER OF THE SANGGUNIANG PANLALAWIGAN OF CAGAYAN, AND JESUS FLORENCIO A. VARGAS, VILMER V. VILORIA, PERLA C. TUMALIUAN, MARIA OLIVIA B. PASCUAL, JEAN ALPHONSE D. PONCE, CHRISTOPHER T. BARCENA, MAILA ROSARIO S. TING-QUE, HILARIO "LARRY" S. TING AND ARNOLD T. LAYUS, JR., IN THEIR CAPACITY AS MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF CAGAYAN, petitioners, vs. MANUEL N. MAMBA, IN HIS CAPACITY AS GOVERNOR OF THE PROVINCE OF CAGAYAN, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedFebruary 28, 2018, which reads as follows:

"G.R. No. 236031 (Melvin K. Vargas, Jr., in his capacity as Vice Governor and Presiding Officer of the Sangguniang Panlalawigan of Cagayan, and Jesus Florencio A. Vargas, Vilmer V. Viloria, Perla C. Tumaliuan, Maria Olivia B. Pascual, Jean Alphonse D. Ponce, Christopher T. Barcena, Maila Rosario S. Ting-Que, Hilario "Larry" S. Ting and Arnold T. Layus, Jr., in their capacity as members of the Sangguniang Panlalawigan of Cagayan v. Manuel N. Mamba, in his capacity as Governor of the Province of Cagayan). — The Court:

(1) INFORMS petitioners that they or their authorized representative may claim from the Cash Disbursement and Collection Division of this Court the excess payment of the prescribed legal fees in the amount of P1,470.00 under O.R. No. 0199969 dated January 5, 2018; and

(2) DIRECTS the parties or their respective counsel to INDICATE their contact details in all papers and pleadings to be filed with this Court pursuant to A.M. No. 07-6-5-SC (EnBanc Resolution dated July 10, 2007). cHECAS

This Court resolved to deny the petition for review on certiorari filed under Rule 45 of the Rules of Court for being defective and for failure of the petitioner to sufficiently show that the Regional Trial Court of Tuguegarao City, Branch 3 (RTC) committed any reversible error in the assailed Resolution 1 and Order 2 dated August 14, 2017 and October 27, 2017, respectively, as to warrant the exercise of the Court's appellate jurisdiction.

The petition is suffering from several infirmities: (1) the affiants who signed the verification and certification on non-forum shopping lack the authority to initiate the petition and sign the same on behalf of the other petitioners; (2) it lacks competent evidence of identity of the affiants who signed the verification and certification on non-forum shopping; (3) it lacks complete contact details of the counsel, i.e., no email address or contact numbers were indicated; and (4) the affidavit of service lacks competent evidence of identity of the affiant. Indeed, while some of the defects are not fatal, the affiant's lack of authority to initiate the petition and sign the same on behalf of the other petitioners is fatal and renders the petition dismissible. 3

However, Governor Manuel N. Mamba (respondent) does not come with clean hands either. The petition for mandamus he filed before the RTC reveals that the counsel who signed the same is the Provincial Legal Counsel of the Province of Cagayan, Atty. Vicente Lasam (Atty. Lasam). While the latter was able to obtain an authority to practice from respondent, his authority cannot prevail over the strict prohibition against the provincial legal counsel to practice privately and to appear in any case in which the provincial government is the adverse party. 4 In this case, both parties are litigants in their official capacities as public servants of the Province of Cagayan, rendering the Province of Cagayan a party thereto; hence, Atty. Lasam, by representing respondent, violated such prohibition.

Now, the issue at bottom: whether the Sangguniang Panlalawigan of Cagayan (SP) can be compelled to hold sessions on the annual budget every day without discussing other business during such sessions until an appropriation ordinance is enacted for such purpose. Otherwise stated, whether the frequency of holding sessions is a ministerial act and is subject to a writ of mandamus. AHDacC

The writ of mandamus is available to "any person [who] unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law." 5 Before mandamus is issued, the following requisites should be satisfied:

1. Petitioner must show a clear legal right to the act demanded;

2. Respondent must have the duty to perform the act because the same is mandated by law;

3. Respondent unlawfully neglects the performance of the duty enjoined by law;

4. The act to be performed is ministerial, not discretionary; and

5. There is no other plain, speedy, and adequate remedy in the ordinary course of law. 6

In the case at bar, all the requisites are present. HCaDIS

On the first requisite, respondent has the burden to prove that he has a legal right to demand the SP to conduct sessions continuously. Not only must he establish a legal right, he must demonstrate that such legal right is well-defined, clear and certain, which respondent has successfully proven, as will be further discussed in the proceeding requisite.

As regards the second requisite, not only must respondent establish the corresponding duty of the SP to perform the required act, such demanded act must also be clear and specific, which respondent partly was also able to prove. We refer to the provision of the law subject of the present dispute, Section 323 of the Local Government Code (LGC), which states: aCIHcD

SECTION 323. Failure to Enact the Annual Appropriations. — In case the sanggunian concerned fails to pass the ordinance authorizing the annual appropriations at the beginning of the ensuing fiscal year, it shall continue to hold sessions, without additional remuneration for its members, until such ordinance is approved, and no other business may be taken up during such sessions. If the sanggunian still fails to enact such ordinance after ninety (90) days from the beginning of the fiscal year, the ordinance authorizing the appropriations of the preceding year shall be deemed reenacted and shall remain in force and effect until the ordinance authorizing the proposed appropriations is passed by the sanggunian concerned. However, only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in accordance therewith. x x x [emphasis supplied]

To determine whether the SP has an imperative duty to hold sessions on a daily basis, the Court must construe the law. As correctly held by the trial court, the word "continue" is juxtaposed before the phrase "to hold sessions," which, therefore, describes the frequency of the holding of sessions. If it were placed after the phrase or after the word "sessions," it would mean otherwise, specifically, describing the manner on how the SP must hold sessions, which is, without interruption. Ad proximumantecedensfiatrelationisi impediatur sentencia. Relative words refer to the nearest antecedent. 7 Simply stated, therefore, while the SP is mandated to conduct sessions, it is not compelled to hold sessions every day or without breaks. Clearly, respondent may very well rely on the impetus of Section 323 on the SP's corresponding duty and his legal right to require the SP to comply therewith. If it were the intent of the lawmakers for the SP to conduct sessions every day, they would easily have explicitly stated so. AHCETa

Furthermore, the SP cannot be beholden to take up solely the annual budget; otherwise, other programs and matters will suffer to the detriment of its constituents. Such is never the intent of the lawmakers. It is practically impossible to discuss only matters involving the annual budget when there are matters that, if not more, are equally as important as appropriations.

Contrary to respondent's contention that such construction would render the last phrase prohibiting the SP from not taking up other matters a mere surplusage, this Court is not persuaded. Even without holding sessions every day, the SP gives effect to the proviso and complies with its mandate by conducting sessions exclusively devoted to the annual budget.

Anent the third requisite, the fact that no ordinance on the budgets was enacted at the time the petition was filed and until the assailed judgment of the RTC was issued are proofs of neglect on the part of the SP. The records substantiate the allegation that the SP unlawfully neglected the performance of their duty enjoined by law. Based on the records, the SP held sessions on the annual budget only a handful of times. It merely included the annual budget on the agenda on January 23, 2017 and February 8, 2017, and thereafter conducted regular sessions discussing exclusively the annual budget only on four occasions: February 20, 2017; March 8, 2017; March 15, 2017; and March 22, 2017. Notably, respondent is also not faultless. In violation of Section 318 of the LGC requiring local executives to submit a budget proposal for the following fiscal year to the SP not later than October 16 of the current fiscal year, respondent submitted a budget proposal for the fiscal year 2017 only on January 19, 2017. 8

Accordingly, as regards the fourth requisite, this Court finds that the act subject of mandamus is ministerial. A ministerial act, as opposed to a discretionary act, refers to an act or duty which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment. 9 ScHADI

As established in the previous disquisitions, as the SP has a duty to conduct sessions, the SP is expected to abide by such ministerial duty. Any refusal or neglect on the part of the SP to conduct sessions is subject to a mandamus. Indeed, based on the internal rules, the SP has a clear mandate to hold sessions once a week. 10 But the duty to hold sessions and the duty to hold sessions on a daily basis are two different things: the first is ministerial, while the second is discretionary. Contrary to the averments of respondent, the law is silent on whether the SP has a duty to conduct sessions on a daily basis to solely discuss the annual budget. Absent any clear statutory provision, the Court cannot compel the SP to conduct sessions every day. DACcIH

Here, while respondent proved that the SP has a ministerial duty to conduct sessions once a week, he failed to prove that the SP also has a concomitant mandatory duty to hold sessions every day. At most, therefore, the Court may compel the SP to deliberate on the annual budget, but it cannot direct the SP, absent any law on the contrary, on how and when to conduct sessions. Mandamus may not be availed to direct the exercise of judgment or discretion in a particular way or to retract or reverse an action already taken in the exercise of either. 11

As regards the fifth requisite, there are no other plain, speedy, and adequate remedies available to respondent in the ordinary course of law. In the ordinary course of local appropriations, should the SP not be amenable to the local development council's proposal, it can return the said proposal to the council with its comments and recommendations. Upon receipt, the chairman can then convene the council and consider the comments and recommendations of the SP. However, such is not the case here. Even before respondent could act on the comments of the SP, he already filed the instant petition for mandamus on the ground that while he had an option to first comment on the SP's recommendations, such remedy would not be speedy and adequate. aICcHA

The Court agrees with respondent. Contrary to the SP's position, the Court cannot rely on the provisions of Section 323 allowing the re-enactment of the budget for the previous year should the SP fail to enact one for the current year. To be clear, only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed re-enacted. Other matters and projects not covered by the automatic appropriations are deemed paralyzed. Indeed, it calls for other measures best remedied by a mandamus.

In the absence of a statutory provision to the contrary, therefore, the Court cannot compel the SP to hold sessions on a daily basis, the frequency and manner of conducting sessions being a discretionary matter. HSCATc

WHEREFORE, the petition is DENIED. The Resolution of the Regional Trial Court of Tuguegarao City, Branch 3, dated August 14, 2017 in Special Civil Action No. 63 is AFFIRMED.

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 26-36; penned by Judge Marivic A. Cacatian-Beltran.

2.Id. at 40-42.

3. RULES OF COURT, Rule 7, Secs. 4 and 5; Republic v. Coalbrine International Philippines, Inc., et al., 631 Phil. 487, 496 (2010).

4. Sec. 12, Rule XVIII of the Revised Civil Service Rules provides:

   Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, that no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors.

5. RULES OF COURT, Rule 65, Sec. 3.

6.Biraogo v. Del Rosario, G.R. No. 206323, April 11, 2013 (Unpublished Resolution).

7.Mapa v. Arroyo, et al., 256 Phil. 527, 534 (1989).

8. Sec. 318. Preparation of the Budget by the Local Chief Executive. — Upon receipt of the statements of income and expenditures from the treasurer, the budget proposals of the heads of departments and offices, and the estimates of income and budgetary ceilings from the local finance committee, the local chief executive shall prepare the executive budget for the ensuing fiscal year in accordance with the provisions of this Title.

   The local chief executive shall submit the said executive budget to the sanggunian concerned not later than the sixteenth (16th) of October of the current fiscal year. Failure to submit such budget on the date prescribed herein shall subject the local chief executive to such criminal and administrative penalties as provided for under this Code and other applicable laws.

9.Spouses Oliveros v. Presiding Judge, RTC, Br. 24, Biñan, Laguna, et al.,558 Phil. 715, 726 (2007).

10. Sec. 52, R.A. No. 7160:

   Sec. 52. Sessions. —

   On the first day of the session immediately following the election of its members, the Sanggunian shall, by resolution, fix the day, time, and place of its regular sessions. The minimum number of regular sessions shall be once a week for the Sangguniang Panlalawigan, Sangguniang Panlungsod, and Sangguniang bayan, and twice a month for the Sangguniang Barangay.

11.JG Summit Holdings, Inc. v. Court of Appeals, et al., 398 Phil. 955, 971 (2000).