G.R. No. 182380

EN BANC

ROBERT P. GUZMAN,

Petitioner,

- versus -

COMMISSION ON ELECTIONS, MAYOR RANDOLPH S. TING AND SALVACION GARCIA,

Respondents.

G.R. No. 182380

Present:

PUNO, C.J.,

QUISUMBING*,

YNARES-SANTIAGO*,

CARPIO,

CORONA,

CARPIO MORALES,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO** and

ABAD**, JJ.

Promulgated:

August 28, 2009

x-----------------------------------------------------------------------------------------x

D E C I S I O N

BERSAMIN, J.:

Through certiorari under Rule 64, in relation to Rule 65, Rules of Court, the petitioner assails the February 18, 2008 resolution of the Commission of Elections en banc (COMELEC),[1] dismissing his criminal complaint against respondents City Mayor Randolph Ting and City Treasurer Salvacion Garcia, both of Tuguegarao City, charging them with alleged violations of the prohibition against disbursing public funds and undertaking public works, as embodied in Section 261, paragraphs (v) and (w), of the Omnibus Election Code, during the 45-day period of the election ban by purchasing property to be converted into a public cemetery and by issuing the treasury warrant in payment. He asserts that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in thereby exonerating City Mayor Ting and City Treasurer Garcia based on its finding that the acquisition of the land for use as a public cemetery did not constitute public works covered by the ban.

Antecedents

On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed Resolution No. 048-2004 to authorize City Mayor Ting to acquire two parcels of land for use as a public cemetery of the City. Pursuant to the resolution, City Mayor Ting purchased the two parcels of land, identified as Lot Nos. 5860 and 5861 and located at Atulayan Sur, Tuguegarao City, with an aggregate area of 24,816 square meters (covered by Transfer Certificates of Title [TCT] No. T-36942 and TCT No. T-36943 of the Register of Deeds in Tuguegarao City), from Anselmo Almazan, Angelo Almazan and Anselmo Almazan III. As payment, City Treasurer Garcia issued and released Treasury Warrant No. 0001534514 dated April 20, 2004 in the sum of P8,486,027.00. On May 5, 2004, the City Government of Tuguegarao caused the registration of the sale and the issuance of new certificates in its name (i.e., TCT No. T-144428 and TCT No. T-144429).

Based on the transaction, the petitioner filed a complaint in the Office of the Provincial Election Supervisor of Cagayan Province against City Mayor Ting and City Treasurer Garcia, charging them with a violation of Section 261, paragraphs (v) and (w), of the Omnibus Election Code, for having undertaken to construct a public cemetery and for having released, disbursed and expended public funds within 45 days prior to the May 9, 2004 election, in disregard of the prohibitions under said provisions due to the election ban period having commenced on March 26, 2004 and ended on May 9, 2004.

City Mayor Ting denied the accusations in his counter-affidavit but City Treasurer Garcia opted not to answer.

After investigation, the Acting Provincial Election Supervisor of Cagayan recommended the dismissal of the complaint by a resolution dated December 13, 2006, to wit:

WHEREFORE, premises considered, the undersigned investigator finds that respondents did not violate Section 261 subparagraphs (v) and (w) of the Omnibus Election Code and Sections 1 and 2 of Comelec Resolution No. 6634 and hereby recommends the DISMISSAL of the above-entitled case for lack of merit.[2]

The COMELEC en banc adopted the foregoing recommendation in its own resolution dated February 18, 2008 issued in E.O. Case No. 06-14[3] and dismissed the complaint for lack of merit, holding that the acquisition of the two parcels of land for a public cemetery was not considered as within the term public works; and that, consequently, the issuance of Treasury Warrant No. 0001534514 was not for public works and was thus in violation of Section 261 (w) of the Omnibus Election Code.

Not satisfied but without first filing a motion for reconsideration, the petitioner has commenced this special civil action under Rule 64, in relation to Rule 65, Rules of Court, claiming that the COMELEC committed grave abuse of discretion in thereby dismissing his criminal complaint.

Parties’ Positions

The petitioner contended that the COMELEC's point of view was unduly restrictive and would defeat the very purpose of the law; that it could be deduced from the exceptions stated in Section 261 (v) of the Omnibus Election Code that the disbursement of public funds within the prohibited period should be limited only to the ordinary prosecution of public administration and for emergency purposes; and that any expenditure other than such was proscribed by law.

For his part, City Mayor Ting claimed that the mere acquisition of land to be used as a public cemetery could not be classified as public works; that there would be public works only where and when there was an actual physical activity being undertaken and after an order to commence work had been issued by the owner to the contractor.

The COMELEC stated that the petition was premature because the petitioner did not first present a motion for reconsideration, as required by Section 1(d), Rule 13 of the 1993 COMELEC Rules of Procedure;[4] and that as the primary body empowered by the Constitution to investigate and prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices,[5] it assumed full discretion and control over determining whether or not probable cause existed to warrant the prosecution in court of an alleged election offense committed by any person.

The Office of the Solicitor General (OSG) concurred with the COMELEC to the effect that the acquisition of the land within the election period for use as a public cemetery was not covered by the 45-day public works ban under Section 261(v) of the Omnibus Election Code; but differed from the COMELEC as to the issuance of Treasury Warrant No. 0001534514, opining that there was probable cause to hold City Mayor Ting and City Treasurer Garcia liable for a violation of Section 261(w), subparagraph (b), of the Omnibus Election Code.

Issues

The issues to be resolved are:

(1) Whether or not the petition was premature;

(2) Whether or not the acquisition of Lots 5860 and 5881 during the period of the election ban was covered by the term public works as to be in violation of Section 261 (v) of the Omnibus Election Code; and

(3) Whether or not the issuance of Treasury Warrant No. 0001534514 during the period of the election ban was in violation of Section 261 (w) of the Omnibus Election Code.

Ruling of the Court

The petition is meritorious.

The Petition Was Not Premature

The indispensable elements of a petition for certiorari are: (a) that it is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (b) that such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and (c) that there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.[6]

The COMELEC asserts that the “plain, speedy and adequate” remedy available to the petitioner was to file a motion for reconsideration vis-à-vis the assailed resolution, as required in the 1993 COMELEC Rules of Procedure; and that his omission to do so and his immediately invoking the certiorari jurisdiction of the Supreme Court instead rendered his petition premature.

We do not sustain the COMELEC.

As a rule, it is necessary to file a motion for reconsideration in the court of origin before invoking the certiorari jurisdiction of a superior court. Hence, a petition for certiorari will not be entertained unless the public respondent has been given first the opportunity through a motion for reconsideration to correct the error being imputed to him.[7]

The rule is not a rigid one, however, for a prior motion for reconsideration is not necessary in some situations, including the following:

a. Where the order is a patent nullity, as where the court a quo has no jurisdiction;

b. Where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

c. Where there is an urgent necessity for the resolution of the question, and any further delay would prejudice the interests of the Government or of the petitioner, or the subject matter of the action is perishable;

d. Where, under the circumstances, a motion for reconsideration would be useless;

e. Where the petitioner was deprived of due process and there is extreme urgency for relief;

f. Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;

g. Where the proceedings in the lower court are a nullity for lack of due process;

h. Where the proceedings were ex parte or in which the petitioner had no opportunity to object; and

i. Where the issue raised is one purely of law or where public interest is involved.[8]

That the situation of the petitioner falls under the last exception is clear enough. The petitioner challenges only the COMELEC’s interpretation of Section 261(v) and (w) of the Omnibus Election Code. Presented here is an issue purely of law, considering that all the facts to which the interpretation is to be applied have already been established and become undisputed. Accordingly, he did not need to first seek the reconsideration of the assailed resolution.

The distinctions between a question of law and a question of fact are well known. There is a question of law when the doubt or difference arises as to what the law is on a certain state of facts. Such a question does not involve an examination of the probative value of the evidence presented by the litigants or any of them. But there is a question of fact when the doubt arises as to the truth or falsehood of the alleged facts or when the query necessarily invites calibration of the whole evidence, considering mainly the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to one another and to the whole, and the probabilities of the situation.[9]

Acquisition of Lots 5860 And 5881

During the Period of the Election Ban,

Not Considered as “Public Works” in Violation

of Sec. 261 (v), Omnibus Election Code

The COMELEC held in its resolution dated February 18, 2008 that:

To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they are:

1. A public official or employee releases, disburses, or expends any public funds;

2. The release, disbursement or expenditure of such funds must be within forty-five days before regular election;

3. The release, disbursement or expenditure of said public funds is for any and all kinds of public works; and

4. The release, disbursement or expenditure of the public funds should not cover any exceptions of Section 261 (v). (Underscoring supplied).

Applying the foregoing as guideline, it is clear that what is prohibited by law is the release, disbursement or expenditure of public funds for any and all kinds of public works. Public works is defined as fixed works (as schools, highways, docks) constructed for public use or enjoyment esp. when financed and owned by the government. From this definition, the purchase of the lots purportedly to be utilized as cemetery by the City Government of Tuguegarao cannot by any stretch of imagination be considered as public works, hence it could not fall within the proscription as mandated under the aforementioned section of the Omnibus Election Code. And since the purchase of the lots is not within the contemplation of the word public works, the third of the elements stated in the foregoing guideline is not present in this case. Hence since not all the elements concurred, the respondents are not liable for violation of Section 261 (v) of the Omnibus Election Code.

The foregoing ratiocination of the COMELEC is correct.

Section 261(v) of the Omnibus Election Code provides as follows:

Section 261. Prohibited acts.- The following shall be guilty of an election offense:

x x x

(v) Prohibition against release, disbursement or expenditure of public funds.- Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds:

(1) Any and all kinds of public works, except the following:

(a) Maintenance of existing and/or completed public works project: Provided, that not more than the average number of laborers or employees already employed therein during the sixth- month period immediately prior to the beginning of the forty-five day period before election day shall be permitted to work during such time: Provided, further, That no additional laborer shall be employed for maintenance work within the said period of forty-five days;

(b) Work undertaken by contract through public bidding held, or negotiated contract awarded, before the forty-five day period before election: Provided, That work for the purpose of this section undertaken under the so-called “takay” or “paquiao” system shall not be considered as work by contract;

(c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and

(d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility.

No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph.

This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or agencies concerned to report to the Commission the list of all such projects being undertaken by them.

(2) The Ministry of Social Services and Development and any other office in other ministries of the government performing functions similar to the said ministry, except for salaries of personnel and for such other expenses as the Commission may authorize after due and necessary hearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries shall be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and

(3) The Ministry of Human Settlements and any other office in any other ministry of the government performing functions similar to the said ministry, except for salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing.

As the legal provision shows, the prohibition of the release, disbursement or expenditure of public funds for any and all kinds of public works depends on the following elements: (a) a public official or employee releases, disburses or spends public funds; (b) the release, disbursement and expenditure is made within 45 days before a regular election or 30 days before a special election; and (c) the public funds are intended for any and all kinds of public works except the four situations enumerated in paragraph (v) of Section 261.

It is decisive to determine, therefore, whether the purchase of the lots for use as a public cemetery constituted public works within the context of the prohibition under the Omnibus Election Code.

We first construe the term public works − which the Omnibus Election Code does not define − with the aid of extrinsic sources.

The Local Government Code of 1991 considers public works to be the fixed infrastructures and facilities owned and operated by the government for public use and enjoyment. According to the Code, cities have the responsibility of providing infrastructure facilities intended primarily to service the needs of their residents and funded out of city funds, such as, among others, roads and bridges; school buildings and other facilities for public elementary and secondary schools; and clinics, health centers and other health facilities necessary to carry out health services.[10]

Likewise, the Department of Public Works and Highways (DPWH), the engineering and construction arm of the government, associates public works with fixed infrastructures for the public. In the declaration of policy pertinent to the DPWH, Sec. 1, Chapter 1, Title V, Book IV, Administrative Code of 1987, states:

Sec. 1. Declaration of Policy. - The State shall maintain an engineering and construction arm and continuously develop its technology, for the purposes of ensuring the safety of all infrastructure facilities and securing for all public works and highways the highest efficiency and the most appropriate quality in construction. The planning, design, construction and maintenance of infrastructure facilities, especially national highways, flood control and water resources development systems, and other public works in accordance with national development objectives, shall be the responsibility of such an engineering and construction arm. However, the exercise of this responsibility shall be decentralized to the fullest extent feasible.

The enumeration in Sec. 1, supra − “infrastructure facilities, especially national highways, flood control and water resources development systems, and other public works in accordance with national development objectives” − means that only the fixed public infrastructures for use of the public are regarded as public works. This construction conforms to the rule of ejusdem generis, which Professor Black has restated thuswise:[11]

It is a general rule of statutory construction that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. But this rule must be discarded where the legislative intention is plain to the contrary.

Accordingly, absent an indication of any contrary legislative intention, the term public works as used in Section 261 (v) of the Omnibus Election Code is properly construed to refer to any building or structure on land or to structures (such as roads or dams) built by the Government for public use and paid for by public funds. Public works are clearly works, whether of construction or adaptation undertaken and carried out by the national, state, or municipal authorities, designed to subserve some purpose of public necessity, use or convenience, such as public buildings, roads, aqueducts, parks, etc.; or, in other words, all fixed works constructed for public use.[12]

It becomes inevitable to conclude, therefore, that the petitioner's insistence − that the acquisition of Lots 5860 and 5881 for use as a public cemetery be considered a disbursement of the public funds for public works in violation of Section 261(v) of the Omnibus Election Code − was unfounded and unwarranted.

III

Issuance of the Treasury Warrant

During the Period of the Election Ban

Violated Section 261 (w), Omnibus Election Code

Section 261(w) of the Omnibus Election Code reads thus:

x x x

(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices.- During the period of forty five days preceding a regular election and thirty days before a special election, any person who: (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.

x x x

The OSG posits that the foregoing provision is violated in either of two ways: (a) by any person who, within 45 days preceding a regular election and 30 days before a special election, undertakes the construction of any public works except those enumerated in the preceding paragraph; or (b) by any person who issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds within 45 days preceding a regular election and 30 days before a special election.

We concur with the OSG’s position.

Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above and that under subparagraph (b) above. For purposes of the prohibition, the acts are separate and distinct, considering that Section 261(w) uses the disjunctive or to separate subparagraphs (a) and (b). In legal hermeneutics, or is a disjunctive that expresses an alternative or gives a choice of one among two or more things.[13] The word signifies disassociation and independence of one thing from another thing in an enumeration. It should be construed, as a rule, in the sense that it ordinarily implies as a disjunctive word.[14] According to Black,[15] too, the word and can never be read as or, or vice versa, in criminal and penal statutes, where the rule of strict construction prevails. Consequently, whether or not the treasury warrant in question was intended for public works was even of no moment in determining if the legal provision was violated.

There was a probable cause to believe that Section 261(w), subparagraph (b), of the Omnibus Election Code was violated when City Mayor Ting and City Treasurer Garcia issued Treasury Warrant No. 0001534514 during the election ban period. For this reason, our conclusion that the COMELEC en banc gravely abused its discretion in dismissing E.O. Case No. 06-14 for lack of merit is inevitable and irrefragable.

True, the COMELEC, as the body tasked by no less than the 1987 Constitution to investigate and prosecute violations of election laws,[16] has the full discretion to determine whether or not an election case is to be filed against a person and, consequently, its findings as to the existence of probable cause are not subject to review by courts. Yet, this policy of non-interference does not apply where the COMELEC, as the prosecuting or investigating body, was acting arbitrarily and capriciously, like herein, in reaching a different but patently erroneous result.[17] The COMELEC was plainly guilty of grave abuse of discretion.

Grave abuse of discretion is present “when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.”[18]

WHEREFORE, WE grant the petition for certiorari and set aside the resolution dated February 18, 2008 issued in E.O. Case No. 06-14 by the Commission of Elections en banc.

The Commission on Elections is ordered to file the appropriate criminal information against respondents City Mayor Randolph S. Ting and City Treasurer Salvacion Garcia of Tuguegarao City for violation of Section 261 (w), subparagraph (b), of the Omnibus Election Code.

Costs of suit to be paid by the private respondents.

SO ORDERED.

LUCAS P. BERSAMIN

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

(On official leave) (On official leave)

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO