Pubcorp p129 149 Cases

EN BANC

[G.R. No. 72492. November 5, 1987.]

NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO TORRES and ARTURO

UMBAC,petitioners, vs. SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC

COMMITTEE OF THESANGGUNIANG PANLUNGSOD OF DUMAGUETE and ANTONIO S. RAMAS

UYPITCHING, respondents.

SYLLABUS 1. CONSTITUTIONAL LAW; LEGISLATURE; EMPOWERED TO PUNISH NON-‐MEMBERS FOR LEGISLATIVE CONTEMPT. — While the Constitution does not expressly vest Congress with the power to punish non-‐members for legislative contempt, the power has nevertheless been invoked by the legislative body as a means of preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29 [1950]); Arnault v. Balagtas, 97 Phil. 358 [1955]) The exercise by Congress of this awesome power was questioned for the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950]) where this Court held that the legislative body indeed possessed the contempt power. 2. ID.; JUDICIARY; INHERENT POWERS OF COURTS. — In the same way that courts wield an inherent power to "enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness of the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716, 723 [1967]; In re Kelly, 35 Phil. 944, 950 [1916], and other cases). 3. ID.; LEGISLATURE; CONTEMPT POWERS; EXPLAINED. — The exercise by the legislature of the contempt power is a matter of self-‐preservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power attaches not to the discharge of legislative functions per se but to the character ofthe legislature as one of the three independent and coordinate branches of government. The same thing cannot be saidof local legislative bodies which are creations of law. 4. ADMINISTRATIVE LAW; PUBLIC CORPORATIONS; LOCAL LEGISLATIVE POWER TO SUBPOENA WITNESSES AND PUNISH NON-‐MEMBERS FOR CONTEMPT; NOT IMPLIED; REASON. — There is no express provision either in the 1973Constitution or in the Local Government Code (Batas Pambansa Blg. 337) granting local legislative bodies, the power tosubpoena witnesses and the power to punish non-‐members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the only possible justification for the issuance of a subpoena and for the punishment ofnon-‐members for contumacious behavior would be for said power to be deemed implied in the statutory grant ofdelegated legislative power. But, the contempt power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of legislative power. Neither can they exist as mere incidents of the performance of legislative functions. To allow local legislative bodies or administrative agencies to exercise these powers without express statutory basis would run afoul of the doctrine of separation of powers. 5. ID.; ID.; ID.; ID.; LIBERALITY OF INTERPRETATION OF RULES IN FAVOR OF LOCAL AUTONOMY; NOT APPLICABLE IN CASE AT BAR. — The contempt power, as well as the subpoena power, which the framers of the fundamental law did not expressly provide for but which the then Congress has asserted essentially for self-‐preservation as one of three co-‐equal branches of the government cannot be deemed implied in the delegation of certain legislative functions to local legislative bodies. These cannot be presumed to exist in favor of the latter and must be considered as an exception to Sec. 4 of B.P. 337 which provides for liberal rules of interpretation in favor of local autonomy. Since the existence of the contempt power in conjunction with the subpoena power in any government body inevitably poses a potential derogation of individual rights, i.e. compulsion of testimony and punishment for refusal to testify, the law cannot be liberally construed to have impliedly granted such powers to local legislative bodies. It cannot be lightly presumed that the sovereign people, the ultimate source of all government powers, have reposed these powers in all government agencies. The intention of the sovereign people, through their representatives in the legislature, to share these unique and awesome powers with the local legislative bodies must therefore clearly appear in pertinent legislation. 6. ID.; ID.; ID.; MAY ONLY BE EXERCISED IF SUBJECT MATTER OF INVESTIGATION IS WITHIN ITS JURISDICTION. — The contempt power (and the subpoena power) if actually possessed, may only be exercised where the subject matter of the investigation is within the jurisdiction of the legislative body (Arnault v. Nazareno, supra, citing Kilbourn v. Thompson). As admitted by the respondents in their Comment, the investigation to be conducted by the Ad-‐Hoc Committee was to look into the use by NORECO II of inefficient power lines "of pre-‐war vintage" which the latter had acquired from the Visayan Electric Company, and "to hear the side of the petitioners" (Comment, Rollo, p. 50). It becomes evident that the inquiry would touch upon the efficiency of the electric service of NORECO II and, necessarily, its compliance with the franchise. Such inquiry its beyond the jurisdiction of the respondent Sangguniang Panlungsod and the respondent committee.

7. ID.; ID.; ID.; EMPOWERED TO ENACT ORDINANCES REGULATING THE INSTALLATION AND MAINTENANCE OFELECTRICAL POWER LINES OR WIRES WITHIN ITS JURISDICTION. — There is no doubt that a city government has the power to enact ordinances regulating the installation and maintenance of electric power lines or wires within its territorial jurisdiction. This particular power of the city government is included in the enumeration of powers and dutiesof a Sangguniang Panlungsod in Section 177 of the Local Government Code (Batas Pambansa Blg. 337, February 10, 1983), to wit: SEC. 177. Powers and Duties. — The Sangguniang Panlungsod shall: . . . (j) . . . regulate the digging and excavation for the laying of gas, water, power, and other pipelines, the building and repair of tunnels, sewers and drains, and all structures thereunder; the placing, stringing, attaching, installing, repair and construction of all gas mains,electric, telegraph and telephone wires, conduits, meters and other apparatus, and the correction, condemnation of the same when dangerous or defective. . . . 8. ID.; ID.; ID.; POWER TO CONDUCT LEGISLATIVE INVESTIGATIONS; DISTINGUISHED FROM NATIONAL LEGISLATURE. — The Sangguniang Panlungsod of Dumaguete may, therefore, enact ordinances to regulate the installation and maintenance of electric power lines, e.g. prohibit the use of inefficient power lines, in order to protect the city residents from the hazards these may pose. In aid of this ordinance-‐making power, said body or any of its committees may conduct investigations similar to, but not the same as, the legislative investigations conducted by the national legislature. As already discussed, the difference lies in the lack of subpoena power and of the power to punish for contempt on the part of the local legislative bodies. They may only invite resource persons who are willing to supply information which may be relevant to the proposed ordinance. The type of investigation which may be conducted by theSangguniang Panlungsod does not include within its ambit an inquiry into any suspected violation by an electriccooperative of the conditions of its electric franchise. 9. ID.; NATIONAL ELECTRIFICATION ADMINISTRATION; POWER TO INQUIRE THE EFFICIENCY OF SERVICE SUPPLIED BY ELECTRICAL COOPERATIVES; INCLUDES THE CONDUCT OF HEARING AND INVESTIGATIONS AND TO ISSUE SUBPOENA. — The power to inquire into the efficiency of the service supplied by electric cooperatives is within the franchising powersof the NEA under Sec. 43 of Pres. Dec. No. 269, i.e.: . . . (2) to repeal and cancel any franchise if the NEA finds that the holder thereof is not then furnishing, and is unable to or unwilling within reasonable time to furnish adequate and dependable service on an area coverage within such area. . . . In the exercise of this power, the NEA may conduct hearings and investigations, issue subpoenas and invoke the aid of the courts in case of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D. 269).

D E C I S I O N

CORTES, J p:

An attempt by the respondent Ad Hoc Committee of the respondent Sangguniang Panlungsod of Dumaguete to punish non-‐

members for legislative contempt was halted by this special civil action of Certiorari and Prohibition with Preliminary

Injunction and/or Restraining Order questioning the very existence of the power in that local legislative body or in

any of its committees. On November 7, 1985, this Court issued a Temporary Restraining Order:

. . . enjoining respondents, their agents, representatives, and police and other peace officers acting in

their behalf, to refrain from compelling the attendance and testimony of Petitioners Paterio Torres and

Arturo Umbac at any and all future investigations to be conducted by aforesaid respondents, and from

issuing any contempt order if one has not been issued yet or from executing any such contempt order if

one has already been issued.

Assailed is the validity of a subpoena dated October 25, 1985 (Annex "A", Petition) sent by the respondent Committee to

the petitioners Paterio Torres and Arturo Umbac, Chairman of the Board of Directors and the General Manager,

respectively, of petitioner Negros Oriental II Electric Cooperative (NORECO II), requiring their attendance and testimony

at the Committee's investigation on October 29, 1985. Similarly under fire is the Order issued by the same Committee on

the latter date, (Annex "D", Petition) directing said petitioners to show cause why they should not be punished for

legislative contempt due to their failure to appear at said investigation.

The investigation to be conducted by respondent Committee was "in connection with pending legislation related to the

operations of public utilities" (Id.) in the City of Dumaguete where petitioner NORECO II, an electric cooperative, had its

principal place of business. Specifically, the inquiry was to focus on the alleged installation and use by the petitioner

NORECO II of inefficient power lines in that city (Comment, Rollo, p. 50). Respondent Antonio S. Ramas Uypitching, as

Chairman of the Committee on Public Utilities and Franchises and Co-‐Chairman of the respondent Ad Hoc Committee,

signed both the subpoena and the Order complained of Petitioners moved to quash the subpoena on the following

grounds: prLL

a. The power to investigate, and to order the improvement of, alleged inefficient power lines to

conform to standards is lodged exclusively with the National Electrification Administration; and

b. Neither the Charter of the City of Dumaguete nor the Local Government Code grants

(the SangguniangPanlungsod) any specific power to investigate alleged inefficient power

lines of NORECO II. (Annex "C", Petition)

The motion to quash was denied in the assailed Order of October 29, 1985 directing the petitioners Torres and Umbac to

show cause why they should not be punished for contempt. Hence this Petition for Certiorari and Prohibition with

Preliminary Injunction and/or Restraining Order.

Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the power to compel the

attendance and testimony of witnesses, nor the power to order the arrest of witnesses who fail to obey its subpoena. It is

further argued that assuming the power to compel the attendance and testimony of witnesses to be lodged in said body, it

cannot be exercised in the investigation of matters affecting the terms and conditions of the franchise granted to

NORECO II which are beyond the jurisdiction of the Sangguniang Panlungsod (Rollo, pp. 7-‐8).

Respondents, for their part, claim that inherent in the legislative functions performed by the

respondent SangguniangPanlungsod is the power to conduct investigations in aid of legislation and with it, the power to

punish for contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It is also the position of the respondents that

the contempt power, if not expressly granted, is necessarily implied from the powers granted

the Sangguniang Panlungsod (Rollo, pp. 48-‐49). Furthermore, the respondents assert that an inquiry into the installation or

use of inefficient power lines and its effect on the power consumption cost on the part of Dumaguete residents is well-‐within

the jurisdiction of theSangguniang Panlungsod and its committees.

1. A line should be drawn between the powers of Congress as the repository of the legislative power under theConstitution,

and those that may be exercised by the legislative bodies of local government unit, e.g.

the SangguniangPanlungsod of Dumaguete which, as mere creatures of law, possess delegated legislative power. While

the Constitutiondoes not expressly vest Congress with the power to punish non-‐members for legislative contempt, the

power has nevertheless been invoked by the legislative body as a means of preserving its authority and dignity (Arnault v.

Nazareno, 87 Phil. 29 [1950]); Arnault v. Balagtas, 97 Phil. 358 [1955]), in the same way that courts wield an inherent

power to "enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness of the

administration of justice." (Commissioner v. Cloribel, 127 Phil. 716, 723 [1967]; In re Kelly, 35 Phil. 944, 950 [1916], and

other cases). The exercise by Congress of this awesome power was questioned for the first time in the leading

case ofArnault v. Nazareno, (87 Phil. 29 [1950]) where this Court held that the legislative body indeed possessed the

contempt power.

That case arose from the legislative inquiry into the acquisition by the Philippine Government of the Buenavista and

Tambobong estates sometime in 1949. Among the witnesses called to examined by the special committee created by a

Senate resolution was Jean L. Arnault, a lawyer who delivered a partial of the purchase price to a representative of the

vendor. During the Senate investigation, Arnault refused to reveal the identity of said representative, at the same time

invoking his constitutional right against self-‐incrimination. The Senate adopted a resolution committing Arnault to the

custody of the Sergeant-‐at-‐Arms and imprisoned "until he shall have purged the contempt by revealing to the Senate . . .

the name of the person to whom he gave the P440,000, as well as answer other pertinent questions in connection

therewith." (Arnault v. Nazareno, 87 Phil. 29, 43 [1950]). Arnault petitioned for a writ of Habeas Corpus.

In upholding the power of Congress to punish Arnault for contumacy, the Court began with a discussion of the

distribution of the three powers of government under the 1935 Constitution. Cognizant of the fact that the Philippines

system of government under the 1935 Constitution was patterned after the American system, the Court proceeded to

resolve the issue presented, partly by drawing from American precedents, and partly by acknowledging the broader

legislative power of the Philippine Congress as compared to the U.S. Federal Congress which shares legislative power with

the legislatures of the different states of the American union (Id., pp. 44-‐45). The Court held:

xxx xxx xxx

. . . (T)he power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to

the legislative function. A legislative body cannot legislate wisely or effectively in the

absence of information respecting the conditions which the legislation is intended to affect or change;

and where the legislative body does not itself possess the requisite information — which is not

infrequently true — recourse must be had to others who possess it. Experience has shown that mere

requests for such information are often unavailing, and also that information which is volunteered is

not always accurate or complete; so some means of compulsion is essential to obtain what is needed.

(McGrain vs. Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A.L.R., 1) The fact that

the Constitution expressly gives to Congress the power to punish its Members for disorderly behavior,

does not by necessary implication exclude the power to punish for contempt by any person.

(Anderson vs. Dunn, 6 Wheaton, 204; 5 L. ed., 242)

But no person can be punished for contumacy as a witness before either House, unless his testimony is

required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26, L.

ed., 377.)

The Court proceeded to delve deeper into the essence of the contempt power of the Philippine Congress in a subsequent

decision (Arnault v. Balagtas, 97 Phil. 358 [1955]) arising from the same factual antecedents:

The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is

founded upon reason and policy. Said power must be considered implied or incidental to the

exercise of legislative power. How could a legislative body obtain the knowledge and information or,

which to base intended legislation if it cannot require and compel the disclosure of such knowledge and

information, if it is impotent to punish a defiance of its power and authority? When the

framers of the Constitution adopted the principle of separation of powers, making each branch

supreme within the realm of its respective authority, it must have intended each department's

authority to be full and complete, independently of the other's authority or power. And how could the

authority and power become complete if for every act of refusal, every act of defiance, every

act of contumacy against it, the legislative body must resort to the judicial department for the

appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts

committed against its authority or dignity . . . (Arnault v. Balagtas, L-‐6749, July 30, 1955; 97 Phil. 358,

370 [1955]).

The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then an unexplored

areaof jurisprudence, and succeeded in supplying the raison d'etre of this power of Congress even in the

absence of express constitutional grant. Whether or not the reasons for upholding the existence of said power in Congress

may be appliedmutatis mutandis to a questioned exercise of the power of contempt by the respondent committee of a city

council is the threshold issue in the present controversy.

3. The exercise by the legislature of the contempt power is a matter of self-‐preservation as that branch of the government

vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts

thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative bodies cannot correctly claim

to possess it for the same reasons that the national legislature does. The power attaches not to the discharge of legislative

functions per se but to the character of the legislature as one of the three independent and coordinate

branches of government. The same thing cannot be said of local legislative bodies which are creations of law.

4. To begin with, there is no express provision either in the 1973 Constitution or in the Local Government Code(Batas

Pambansa Blg. 337) granting local legislative bodies, the power to subpoena witnesses and the power to punish non-‐

members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the only possible

justification for the issuance of a subpoena and for the punishment of non-‐members for contumacious behavior would be

for said power to be deemed implied in the statutory grant of delegated legislative power. But, the contempt power and

the subpoena power partake of a judicial nature. They cannot be implied in the grant of legislative power. Neither can they

exist as mere incidents of the performance of legislative functions. To allow local legislative bodies or administrative

agencies to exercise these powers without express statutory basis would run afoul of the

doctrine of separation of powers. cdasia

Thus, the contempt power, as well as the subpoena power, which the framers of the fundamental law did not expressly

provide for but which the then Congress has asserted essentially for self-‐preservation as one of three co-‐equal

branchesof the government cannot be deemed implied in the delegation of certain legislative functions to local legislative

bodies. These cannot be presumed to exist in favor of the latter and must be considered as an exception to Sec. 4 of B.P.

337which provides for liberal rules of interpretation in favor of local autonomy. Since the existence of the contempt power

in conjunction with the subpoena power in any government body inevitably poses a potential derogation of individual

rights, i.e. compulsion of testimony and punishment for refusal to testify, the law cannot be liberally construed to have

impliedly granted such powers to local legislative bodies. It cannot be lightly presumed that the sovereign people, the

ultimate source of all government powers, have reposed these powers in all government agencies. The intention of the

sovereign people, through their representatives in the legislature, to share these unique and awesome powers with the

local legislative bodies must therefore clearly appear in pertinent legislation.

There being no provision in the Local Government Code explicitly granting local legislative bodies, the power to issue

compulsory process and the power to punish for contempt, the Sanggunian Panlungsod of Dumaguete is devoid ofpower to

punish the petitioners Torres and Umbac for contempt. The Ad-‐Hoc Committee of said legislative body has even less basis to

claim that it can exercise these powers. Cdpr

5. Even assuming that the respondent Sangguniang Panlungsod and the respondent Ad-‐Hoc Committee had the power to

issue the subpoena and the order complained of, such issuances would still be void for being ultra vires. The contempt

power (and the subpoena power) if actually possessed, may only be exercised where the subject matter of the

investigation is within the jurisdiction of the legislative body (Arnault v. Nazareno, supra, citing Kilbourn v. Thompson). As

admitted by the respondents in their Comment, the investigation to be conducted by the Ad-‐Hoc Committee was to look

into the use by NORECO II of inefficient power lines "of pre-‐war vintage" which the latter had acquired from the

Visayan Electric Company, and "to hear the side of the petitioners" (Comment, Rollo, p. 50). It becomes evident that the

inquiry would touch upon the efficiency of the electric service of NORECO II and, necessarily, its compliance with the

franchise. Such inquiry its beyond the jurisdiction of the respondent Sangguniang Panlungsod and the respondent

committee.

There is no doubt that a city government has the power to enact ordinances regulating the installation and

maintenanceof electric power lines or wires within its territorial jurisdiction. The power subsists notwithstanding the

creation of the National Electrification Administration (NEA), to which body the franchise powers of local government

units were transferred by Presidential Decree No. 269. Section 42 of the Decree states: cdll

SEC. 42. Repeal of Franchise Powers of Municipal, City and Provincial Governments. — The

powers of municipal, city and provincial governments to grant franchises, as provided for in Title

34 of the Philippines Statutes or in any special law, are hereby repealed; Provided, That this section

shall not impair or invalidate any franchise heretofore lawfully granted by such a government or repeal

any other subsisting power of such governments to require thatelectric facilities and related properties be

so located, constructed and operated and maintained as to be safe to the public and not to unduly

interfere with the primary use of streets, roads, alleys and other public ways, buildings and grounds

over, upon or under which they may be built. (This Section was not among those amended by Pres. Dec.

Nos. 1370 [May 2, 1978] and 1645 [October 8, 1979]).

This particular power of the city government is included in the enumeration of powers and

duties of a SangguniangPanlungsod in Section 177 of the Local Government Code (Batas Pambansa Blg. 337, February 10,

1983), to wit: LLjur

SEC. 177. Powers and Duties. — The Sangguniang Panlungsod shall:

xxx xxx xxx

(j) . . . regulate the digging and excavation for the laying of gas, water, power, and other pipelines, the

building and repair of tunnels, sewers and drains, and all structures thereunder; the placing, stringing,

attaching, installing, repair and construction of all gas mains, electric, telegraph and telephone

wires, conduits, meters and other apparatus, and the correction, condemnation of the same when

dangerous or defective;

xxx xxx xxx

The Sangguniang Panlungsod of Dumaguete may, therefore, enact ordinances to regulate the installation and

maintenance of electric power lines, e.g. prohibit the use of inefficient power lines, in order to protect the city residents from

the hazards these may pose. In aid of this ordinance-‐making power, said body or any of its committees may conduct

investigations similar to, but not the same as, the legislative investigations conducted by the national legislature. As already

discussed, the difference lies in the lack of subpoena power and of the power to punish for contempt on the part of the local

legislative bodies. They may only invite resource persons who are willing to supply information which may be relevant to

the proposed ordinance. The type of investigation which may be conducted by theSangguniang Panlungsod does not

include within its ambit an inquiry into any suspected violation by an electriccooperative of the

conditions of its electric franchise.

The power to inquire into the efficiency of the service supplied by electric cooperatives is within the franchising

powersof the NEA under Sec. 43 of Pres. Dec. No. 269, i.e.:

(2) to repeal and cancel any franchise if the NEA finds that the holder thereof is not then furnishing,

and is unable to or unwilling within reasonable time to furnish adequate and dependable service on an

area coverage within such area;

xxx xxx xxx

In the exercise of this power, the NEA may conduct hearings and investigations, issue subpoenas and invoke the aid ofthe

courts in case of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D. 269). Clearly, then,

the SangguniangPanlungsod of Dumaguete cannot look into any suspected failure of NORECO II to comply with the

standards of electricservice prescribed by law and in its franchise. The proper recourse is to file a complaint with the NEA

against NORECO IIif there be sufficient basis therefor. cdphil

WHEREFORE, the subpoena dated October 25, 1985 requiring the attendance and testimony of the petitioners at an

investigation by the respondent Ad-‐Hoc Committee, and the Order issued by the latter on October 29, 1985 directing

herein petitioners to show cause why they should not be punished for legislative contempt for their

disobedience ofsaid subpoena, is declared null and void for being ultra vires. The respondent Sangguniang Panlungsod and

the respondent Ad-‐Hoc Committee are without power to punish non-‐members for contempt. The Temporary Restraining

Order issued by this Court on November 7, 1985 enjoining said respondents, their agents and representatives, and the

police and other peace officers from enforcing the aforesaid Order of the respondent committee is made permanent.

Petition is GRANTED. No costs.

SO ORDERED.

Teehankee (C .J .), Yap, Fernan, Narvasa, Melencio-‐Herrera Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin andSarmiento,

JJ ., concur.

Feliciano, J ., is on leave. ||| (Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete, G.R. No. 72492, [November 5, 1987], 239 PHIL 403-‐416)

THIRD DIVISION

[G.R. No. 147767. January 14, 2004.]

MANUEL E. ZAMORA, petitioner, vs. GOVERNOR JOSE R. CABALLERO, ANESIO M. RANARIO, in his

capacity as Provincial Administrator, MARIANO KINTANAR, in his capacity as Provincial Auditor,

CARMEN R. RASUL, in his capacity as Provincial Treasurer, ROLANDO L. OSORIO, BELINDA G.

APAWAN, ARMANDO L. SERAS, RUWEL PETER S. GONZAGA, ARMANDO C. CODILLA, RAUL B.

BASAÑES, GRACIANO C. ARAFOL, JR., respondents.

D E C I S I O N

CARPIO MORALES, J p:

Petitioner Manuel Zamora, a member of the Sangguniang Panlalawigan of Compostela Valley (the Sanggunian), seeks to

invalidate all acts executed and resolutions issued by the Sanggunian during its sessions held on February 8 and 26, 2001

for lack of quorum.

It appears that on February 6, 2001, Vice-‐Governor Reynaldo Navarro sent a written notice of a special session on

February 7, 2001. 1 Upon the request of Governor Jose R. Caballero, however, the scheduled special session was reset to

February 8, 2001 without the benefit of a written notice. 2

On February 8, 2001, the Sanggunian thus held a special session to, among other things, allow the Governor to deliver his

State of the Province Address. As only seven members of the fourteen-‐member Sanggunian were present, 3 no resolution

was considered.

On February 26, 2001, the Sanggunian held its 4th regular session during which it issued Resolution No. 05 4 declaring the

entire province of Compostela Valley under a state of calamity and Resolution No. 07 5 authorizing the Governor to, on

behalf of the province, enter into a construction contract (Contract) with Allado Construction Company, Inc. (the Allado

Company) for the completion of Phase II of the construction of the capitol building. During the same session, the

Sanggunian accepted the letter of irrevocable resignation submitted by Board Member Gemma Theresa M. Sotto. 6

While only eight members of the Sanggunian were present at the commencement of the session on February 26, 2001, the

Journal of the Proceedings (Journal) and Resolution Nos. 05 and 07 showed that a total of thirteen members attended it. 7

Petitioner thus filed a petition 8 before the Regional Trial Court (RTC) of Nabunturan, Compostela Valley against the

Governor, et al., challenging the validity of the acts of the Sanggunian on February 26, 2001, alleging that while the Journal

and Resolutions indicated the presence of 13 members, the Sanggunian nonetheless "conducted official business without a

quorum" 9 as only seven of its fourteen members were actually present when the irrevocable letter of resignation of

Board Member Sotto was noted, 10 and the motions to declare the entire province of Compostela Valley under a state of

calamity 11 and to authorize the Governor to enter into the Contract with the Allado Company 12 were approved. 13

Petitioner additionally alleged that when the vote respecting Resolution No. 05 was taken, only the remaining six

members voted for the adoption thereof, the then presiding officer Board Member Rolando Osorio not having cast his

vote; 14 that when Resolution No. 07 was taken up, however, then presiding officer Osorio, 15 relinquished his seat to

Board Member Graciano Arafol after the six members present unanimously voted on the said resolution in the affirmative,

following which Osorio cast his vote as a member also in the affirmative, thereby authorizing the Governor to enter into

the Contract with Allado Company; and that Board Member Arafol thereafter relinquished his seat as presiding officer to

Board Member Osorio who once again assumed the duties of a presiding officer. 16

Petitioner furthermore challenged the validity of the special session of February 8, 2001 for lack of quorum, there being

only seven members of the Sanggunian in attendance, and for lack of written notice sent to all members at least 24 hours

before the holding of the special session in accordance with Section 52 (d) 17 of the Local Government Code of 1991

(LGC). 18

Respondents, on the other hand, contended that since Board Member Sotto was in the United States 19 at the time the

questioned acts were executed and resolutions adopted, the actual number of Board Members then in the country was

thirteen which should be the basis of the determination of a quorum.

Branch 3 of the RTC of Nabunturan, at Compostela Valley, by Order 20 of April 24, 2001, dismissed the petition upon the

following ratiocination:

. . . Gemma Theresa M. Sotto should not be counted as member for the purpose of determining the

number to constitute a quorum because she is in the United States of America. However, sub-‐paragraph

(b) [of section 53 of the Local Government Code] states and provides for compulsion of any member

absent without any justifiable cause.

This is interpreted by the Supreme Court in the case of Jose Avelino, petitioner vs. Mariano J. Cuenco,

respondent, G.R. No. L-‐2821, March 4, 1949.

Gemma Theresa M. Sotto is beyond the reach of the legal processes of the Sangguniang Panlalawigan

and could not be arrested to compel her to attend its session. Quorum should be determined on the

basis of the actual number of members of the body concerned rather than upon its full membership

which is fourteen (14). Therefore, in this case, with seven (7) members of the thirteen (13) members

present in constitutive of a quorum. . . .

Moreover, Presidential Decree 1818 21 prohibits the issuance of a restraining order or injunction in

any case involving government infrastructure projects. 22 (Emphases omitted)

Hence, the present petition for Certiorari under Rule 45, faulting the trial court for erroneously (1) applying the case

ofAvelino v. Cuenco 23 to a controversy involving a local government unit; (2) taking judicial notice of Board Member

Sotto's being in the United States without proof thereof; and (3) ruling that to grant a Temporary Restraining Order would

be in violation of P.D. 1818. 24

Respondents question the authority of the Court to look beyond the Journal and Resolutions of the Sanggunian 25 and

assert that the construction of the capitol building 26 cannot be enjoined. And they too assert that the presence of thirteen

members at the February 26, 2001 session should be conclusive on the strength of Arroyo v. De Venecia 27 andU.S. v.

Pons. 28 Citation of these cases is misplaced, however.

In Arroyo v. De Venecia, this Court refused to inquire into allegations that the House of Representatives failed to comply

with the rules of procedures which the House itself promulgated absent any showing that there was a violation of a

constitutional provision or of the rights of private individuals.

In U.S. v. Pons, this Court did not go beyond the legislative journals which it found clear and explicit, it holding that to

disprove the entries in the journals, evidence must be adduced based merely upon the memory or recollection of

witnesses in contrast to journals which are the acts of the Government or sovereign itself. 29

In the instant case, this Court is not called upon to inquire into the Sanggunian's compliance with its own rules. Rather, it

is called upon to determine whether the Sanggunian complied with the LGC, a law enacted by Congress, and its

Implementing Rules.

Moreover, the Journal of the Sanggunian is far from clear and explicit as to the presence of a quorum when the questioned

acts were taken. It does not indicate how many members were actually present when the body voted on the motions

leading to the adoption of Resolution Nos. 05 and 07. While the Journal and the Resolutions show that 13

members attended the session, 30 the Journal shows that only six members were called by the presiding officer to vote on

the motions. 31 Six members whose names appear in attendance, namely: Vice Governor Navarro and Board

Members Zamora, Yanong, Castillo, Andres and Gentugaya, were not called and, save for the absent Vice Governor, 32 no

explanation was given therefor.

Coincidentally, in Resolutions 05 and 07, the names of the Board Members who were not called upon to vote, including

petitioner as he had in the meantime left, are followed by two asterisks (**).

Additionally, it was clearly noted by petitioner, when he asked permission to leave the session, that only seven members

were left:

SP Member ZAMORA:

Mr. President, I move to adjourn, Mr. President.

SP Member ARAFOL:

Objection Mr. President.

SP Member ZAMORA:

Mr. President, before the objection, before objection Mr. President, I would like to invite everybody to

go at my service I have a patient nga gi-‐pagawas na sa hospital nga i-‐uli na sa Awao, it's been

there for one hour so I really have to go I have to carry that patient to Awao Mr. President.

SP Member OSORIO:

You are excused Honorable. . .

SP Member ZAMORA:

Okay, then remember that you're only seven Mr. President.

SP Member ARAFOL:

No problem.

SP Member ZAMORA:

Okay so it's alright for you to decide. The seven of you. I would like to manifest in the record that

before further discussion that. . .

SP Member GONZAGA:

Mr. President he is already excused Mr. President.

SP Member ZAMORA:

Yes but I would like to make statement first for the record, for the record. That I do not want Mr.

President that the incident of the of the State of the Province Address will be repeated Mr.

President, wherein there are only seven members present and the quorum was declared Mr.

President. . . .

SP Member GONZAGA:

That's only your opinion . . . 33 (Emphasis supplied)

Respondents themselves admit that there were only seven members present when the motions were voted upon:

26. Nevertheless, even if that remark constituted a proper question on quorum, it is a matter of fact

that there were still seven (7) members present. . . [T]here is a quorum since seven is a majority of

thirteen (13). . . . 34(Emphasis supplied.)

Clearly, this Court is constrained to look into the proceedings of the Sanggunian as recorded in the Journal and not just

rely on Resolution Nos. 05 and 07 to determine who and how many participated in the consideration thereof. The placing

of the asterisks after the names of five members in the Resolutions is highly irregular and suspicious especially since both

resolutions indicate that petitioner, whose name is also followed by asterisks, was present even if it is clear from the

Journal that he had already left the session before the Sanggunian took note of the resignation of Board Member Sotto and

voted on the motions.

Respondents' other contention that the construction of the capitol building cannot be enjoined in light of Malaga v.

Penachos, Jr. 35 fails to convince. In Malaga, this Court declared that although Presidential Decree No. 1818 prohibits any

court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of

injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in

technical cases. On issues clearly outside this dimension and involving questions of law, this Court declared that courts

could not be prevented from exercising their power to restrain or prohibit administrative acts. 36

Respondents maintain that the exception in Malaga as indicated above should not be applied in the instant case because

there was therein a defect in the compliance with procedural rules on bidding. In contrast, respondents stress, the bidding

for the construction of the capitol building in which the winner was the Allado Company was not defective, they adding

that Resolution 07 simply authorized the Governor to formalize the Contract necessary for the full implementation of the

project. 37

This Court fails to see the essential difference between Malaga and the instant case.

In both cases, the defect in the Contract relates to the non-‐compliance with the mandate of a law respecting requirements

before validly entering into a contract. In Malaga, the defect pertained to bidding. In the present case, the alleged defect

pertains to the required number of votes necessary to authorize the Governor to enter into a construction contract.

Clearly then, what is at issue in this case is not the propriety or the wisdom of entering into the Contract for the

construction of the capitol building, which is beyond the power of this Court to enjoin, but the Sanggunian's compliance

with the requirements prescribed under the LGC before it may grant the Governor authority to enter into the Contract,

which issue falls under the exception to the proscription against injunctions in cases involving infrastructure projects, as

held in Malaga.

On the applicability of Avelino 38 to the present case: The issue in said case was whether there was a quorum in a meeting

attended by only 12 of 24 senators, one having been in the hospital while another was out of the country. This Court held

that although the total membership of the Senate was 24, the presence of 12 members already constituted a quorum since

the 24th member was outside the country and beyond the coercive power of the Senate. 39

In the instant case, there is nothing on record, save for respondents' allegation, to show that Board Member Sotto was out

of the country and to thereby conclude that she was outside the coercive power of the Sanggunian when the February 8

and 26, 2001 sessions were held. In fact it is undisputed that the leave form filed by said Board Member before the

Department of Interior and Local Government (DILG) did not mention that she was going out of the

country.40 Petitioner's contention that the trial court cannot take judicial notice of Board Member Sotto's whereabouts is

thus well taken. On this score, the instant case is outside the application of the doctrine in Avelino.

A court may take judicial notice of matters of public knowledge, or those which are capable of unquestionable

determination or ought to be known to judges because of their judicial functions. 41 With respect to disputed facts,

however, the court must receive evidence thereof, with notice to the parties. 42

Also, in Avelino, the legislative body involved was the Senate and the applicable rule on quorum was that embodied

inArticle VI, Section 10 of the 1935 Constitution which reads:

Section 10. . . .

(2) A majority of each House shall constitute a quorum to do business, but a smaller number may

adjourn from day to day and may compel the attendance of absent Members in such manner

and under such penalties as such House may provide. 43 (Emphasis supplied)

The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of Compostela Valley

Province, and the applicable rule respecting quorum is found in Section 53(a) of the LGC which provides:

Section 53. Quorum. —

(a) A majority of all members of the sanggunian who have been elected and qualified shall constitute a

quorumto transact official business. Should a question of quorum be raised during a session,

the presiding officer shall immediately proceed to call the roll of the members and thereafter

announce the results. (Emphasis supplied)

"Quorum" is defined as that number of members of a body which, when legally assembled in their proper places, will

enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon

a law or ordinance or do any valid act. 44 "Majority," when required to constitute a quorum, means the number greater

than half or more than half of any total. 45 In fine, the entire membership must be taken into account in computing the

quorum of the sangguniang panlalawigan, for while the constitution merely states that "majority of eachHouse shall

constitute a quorum," Section 53 of the LGC is more exacting as it requires that the "majority of all members of

the sanggunian . . . elected and qualified" shall constitute a quorum.

The difference in the wordings of the Constitution and the LGC is not merely "a matter of style and writing" as respondents

would argue, but is actually a matter of "meaning and intention." 46 The qualification in the LGC that the majority be

based on those "elected and qualified" was meant to allow sanggunians to function even when not all members thereof

have been proclaimed. 47 And, while the intent of the legislature in qualifying the quorum requirement was to

allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the

provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its

members file for leave. What should be important then is the concurrence of election to and qualification for the office.

And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a

leave of absence.

The trial court should thus have based its determination of the existence of a quorum on the total number of members of

the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto. The fear that a majority may, for

reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already

addressed by the grant of coercive power to a mere majority of sanggunian members present when there is no

quorum. 48

A sanggunian is a collegial body. Legislation, which is the principal function and duty of the sanggunian, requires the

participation of all its members so that they may not only represent the interests of their respective constituents but also

help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian

done outside the parameters of the legal provisions aforementioned are legally infirm, highly questionable and are, more

importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts

done during an unauthorized session.

Board Member Sotto is then deemed not resigned because there was no quorum when her letter of irrevocable resignation

was noted by the Sanggunian. For the same reason, Resolution Nos. 05 and 07 are of no legal effect.

Even assuming arguendo that there were indeed thirteen members present during the questioned February 26, 2001

session, Resolution No. 05 declaring the entire province of Compostela Valley under state of calamity is still null and void

because the motion for its approval was approved by only six members. 49 When there are thirteen members present at a

session, the vote of only six members can not, at any instance, be deemed to be in compliance with Section 107(g) 50 of

the Rules and Regulations Implementing the LGC which requires the concurrence of the approval by the majority of the

members present and the existence of a quorum in order to validly enact a resolution.

The motion to grant the Governor authority to enter into the construction contract is also deemed not approved in

accordance with the law even if it received seven affirmative votes, which is already the majority of thirteen, due to the

defect in the seventh vote. For as priorly stated, as the Journal confirms, after all six members voted in the affirmative,

Board Member Osorio, as acting presiding officer, relinquished his seat to Board Member Arafol and thereafter cast his

vote as a member in favor of granting authority to the Governor. 51

This Court is faced with an act clearly intended to circumvent an express prohibition under the law — a situation that will

not be condoned. 52 The LGC clearly limits the power of presiding officers to vote only in case of a tie, to wit:

Section 49. Presiding Officer. — (a) The vice-‐governor shall be the presiding officer of the sangguniang

panlalawigan . . . . The presiding officer shall vote only to break a tie.

(b) In the event of inability of the regular presiding officer to preside at a sanggunian session, the

members present and constituting a quorum shall elect from among themselves a temporary presiding

officer. . . . (Italics in the original. Emphasis supplied.)

While acting as presiding officer, Board Member Osorio may not, at the same time, be allowed to exercise the rights of a

regular board member including that of voting even when there is no tie to break. A temporary presiding officer who

merely steps into the shoes of the presiding officer could not have greater power than that possessed by the latter 53who

can vote only in case of a tie.

Lastly, for a resolution authorizing the governor to enter into a construction contract to be valid, the vote of the majority

of all members of the Sanggunian, and not only of those present during the session, is required in accordance withSection

468 54 of the LGC in relation to Article 107 55 of its Implementing Rules.

Even including the vote of Board Member Osorio, who was then the Acting Presiding Officer, Resolution No. 07 is still

invalid. Applying Section 468 of the LGC and Article 107 of its Implementing Rules, there being fourteen members in the

Sanggunian, the approval of eight members is required to authorize the governor to enter into the Contract with the

Allado Company since it involves the creation of liability for payment on the part of the local government unit.

WHEREFORE, the petition is hereby GRANTED. The assailed Order of the Regional Trial Court of Nabunturan, Compostela

Valley dated April 24, 2001 is hereby REVERSED and SET ASIDE.

Resolution Nos. 05 and 07 of the Sangguniang Panlalawigan of Compostela Valley approved on February 26, 2001,

declaring the entire Province of Compostela Valley under a state of calamity and granting authority to the Provincial

Governor to enter into a general construction agreement, respectively, are hereby declared null and void. AIDTHC

SO ORDERED.

Vitug, Sandoval-‐Gutierrez and Corona, JJ., concur.

Footnotes 1.Rollo at 43. 2.Id. at 6. 3.Id. at 45-‐46. In attendance were: Rolando Osorio Regular Member Graciano Arafol Regular Member Belinda Apawan Regular Member Armando Seras Regular Member Ruwel Peter Gonzaga Regular Member Armando Codilla PCL Federation Representative Raul S. Basañes LNMB Federation Representative 4.Rollo at 59-‐60; "A Resolution Declaring the Entire Province of Compostela Valley Under

a State of Calamity." 5.Rollo, at 62-‐63; "A Resolution Authorizing Hon. Jose R. Caballero, Governor, to Sign for

and in Behalf of the Province, the Corrected/Amended General Construction Agreement, to be Executed Between the Allado Construction Company, Inc., and the Province of Compostela Valley, for the Construction of a Four-‐Storey Provincial Capitol Building Phase II."

6.Rollo at 109-‐110. 7.Id. at 64. The Journal shows that the following members were present: Hon. Reynaldo B. Navarro Vice Governor (Presiding Officer) Hon. Manuel E. Zamora SP Member (late) Hon. Manolo T. Yanong SP Member Hon. Rolando L. Osorio SP Member (late) Hon. Reynaldo Q. Castillo SP Member Hon. William S. Andres SP Member (late) Hon. Graciano C. Arafol SP Member Hon. Belinda G. Apawan SP Member (late) Hon. Armando L. Seras SP Member Hon. Ruwel Peter S. Gonzaga SP Member (late) Hon. Armando C. Codilla SP Member Hon. Raul S. Basañes SP Member Hon. Ramil L. Gentugaya SP Member Absent: Hon. Gemma Theresa M. Sotto SP Member 8.Rollo at 31-‐123. 9.Id. at 34-‐36. 10.Id. at 57. 11.Id. at 58. 12.Id. at 61. 13.Per certification of the Sanggunian Secretary, the following were present: Hon. Rolando Osorio Hon. Graciano C. Arafol, Jr. Hon. Belinda G. Apawan Hon. Armando L. Seras Hon. Ruwel Peter S. Gonzaga Hon. Armando C. Codilla Hon. Raul S. Basañes It appears from the minutes that Vice Governor Reynaldo B. Navarro left the session

before adjournment and Rolando Osorio was appointed to preside in the session. Manolo T. Yanong, Reynaldo Q. Castillo and Ramil L. Gentugaya who were present at the commencement of the session were not present when the actions were taken. Manuel E. Zamora and William S. Andres, who arrived late for the session, were likewise not present.

14.Rollo at 112-‐113. 15.Vice Governor Reynaldo B. Navarro relinquished the chair to Board Member Osorio to

attend to official business. 16.Rollo at 120-‐121. 17.Section 52. Sessions. — . . .

xxx xxx xxx (d) In the case of special sessions of the sanggunian, a written notice to the members

shall be served personally at the member's usual place of residence at least twenty-‐four (24) hours before the special session is held.

Unless otherwise concurred in by two-‐thirds (2/3) vote of the sanggunian members present, there being a quorum, no other matters may be considered at a special session except those stated in the notice.

xxx xxx xxx 18.Republic Act 7160. 19.Rollo at 128-‐131. 20.Id. at 152-‐158. 21.("Prohibiting Courts from Issuing Restraining Orders or Preliminary Injunctions in

Cases Involving Infrastructure and Natural Resource Development Projects of, and Public Utilities Operated by, the Government."

22.Rollo at 156-‐157. 23.83 Phil 17 (1949). 24.Rollo at 13. 25.Id. at 164, 169-‐170. 26.Id. at 164, 170-‐172. 27.277 SCRA 268 (1997). 28.34 Phil. 729 (1916). 29.Id. at 733. 30.Rollo at 64. 31.Id. at 112-‐113, 120-‐121. Those who voted were Armando C. Codilla, Raul S. Basañes,

Armando L. Seras, Ruwel Peter S. Gonzaga, Belinda G. Apawan and Graciano C. Arafol with Rolando Osorio as presiding officer.

32.Rollo at 59, 62, 106-‐107. 33.Id. at 104-‐105. 34.Id. at 169. 35.213 SCRA 516 (1992). 36.Id. at 523-‐524. 37.Rollo at 171. 38.Supra. 39.Id. at 21-‐22. 40.Rollo at 19. 41.Section 2, Rule 129, Rules of Court. 42.Salamera v. Sandiganbayan, 303 SCRA 217, 229 (1999). 43.The 1987 Philippine Constitution contains a similarly worded provision in Article VI,

Section 16 (2). 44.Javellana v. Tayo, 6 SCRA 1042, 1048-‐1049 (1962). 45.Perez v. Dela Cruz, 27 SCRA 587, 603 (1969). 46.Rollo at 166. 47.A.Q. PIMENTEL, JR., THE LOCAL GOVERNMENT CODE OF 1991 THE KEY TO NATIONAL

DEVELOPMENT 162 (1993). The proponent of the Local Government Code explains:

This section was meant to cover situations when less than all the members of the Sanggunian have been elected and qualified. For example, it can happen that out of ten members of a Sanggunian, only five have been elected and qualified, that is, they have been proclaimed and have assumed office. The other five members may be facing electoral protests of some kind as the others have not, therefore, been elected and qualified.

48.Section 53 (b), Local Government Code. Section 53. Quorum — . . . (b) Where there is no quorum, . . . a majority of the members present may adjourned

from day to day and may compel the immediate attendance of any member absent without justifiable cause by designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the local government unit concerned, to arrest the absent member and present him at the session.

49.Rollo at 112-‐113. 50.Article 107. Ordinances and Resolutions. — The following rules shall govern the

enactment of ordinances and resolutions: xxx xxx xxx

(g) No ordinance of resolution passed by the sanggunian in a regular or special session duly called for the purpose shall be valid unless approved by a majority of the members present, there being quorum. . . . (Italics in the original. Emphasis supplied)

51.Rollo at 120-‐121. 52.Vide Perez v. Dela Cruz, 27 SCRA 587 (1969). 53.Ibid. at 602. 54.Section 468. Powers, Duties, Functions and Compensation. — (a) . . . (iii) Subject to the provisions of Book II of this Code and applicable laws and upon

majority vote of all members of the sangguniang panlalawigan, authorize the provincial governor to negotiate and contract loans and other forms of indebtedness; (Italics in the original. Emphases supplied)

xxx xxx xxx 55.Article 107. Ordinances and Resolutions. — The following rules shall govern the

enactment of ordinances and resolutions: xxx xxx xxx

(g) . . . Any ordinance or resolution authorizing or directing the payment of money or creating liability, shall require the affirmative vote of a majority of all the sanggunian members for its passage. (Italics in the original. Emphasis supplied)

xxx xxx xxx ||| (Zamora v. Caballero, G.R. No. 147767, [January 14, 2004], 464 PHIL 471-‐493)

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