ROBERT F. ONG, PETITIONER, VS. MARIA TERESITA HERRERA-MARTINEZ, THE CITY COUNCIL OF MANILA AND THE CITY TREASURER OF MANILA, RESPONDENTS.

Petitioner Robert F. Ong
assails the appointment and assumption of duties as Councilor in the City
Council of Manila of respondent Ma. Teresita Herrera-Martinez, in place of
deceased Councilor Saturnino Herrera who represented the Third District of
Manila.

It appears that Saturnino
Herrera, who was the father of respondent Martinez, was one of the Liberal
Party candidates duly elected as Councilor for Manila’s Third District in the
local elections of January 18, 1988. He performed his duties as such councilor until his death
on October 14, 1988, thus leaving the position open for the appointment of a
qualified replacement from the same political party where the deceased
councilor belonged.

Petitioner, who was a defeated candidate of the Liberal
Party in the Third District of Manila, on the strength of an indorsement by the
Treasurer of the said party in the district which was allegedly supported by
80% of the ward leaders of the
party of the same district as embodied in their resolution, was appointed on
February 9, 1989 as member of the Sangguniang Panglunsod (City Council) by the
Secretary of Local Government to fill the vacancy created by the late Councilor Saturnino
Herrera. On the same date, petitioner
took his oath of office as such councilor after which the Secretary of Local
Government informed Mayor Gemiliano Lopez, Jr. and Vice-Mayor and Presiding Officer Danilo Lacuna of the
appointment of petitioner. Likewise, in
his 1st Indorsement of March 13,
1989, the Undersecretary of Local Government forwarded petitioner’s appointment
to Presiding Officer of the City Council Danilo Lacuna.

In the regular session of the City Council held on March 9, 1989,
said Council, acting on the letter of the Secretary of Local Government dated
February 9, 1989 informing them
of the four appointments including that of petitioner, moved to exclude
petitioner and the other appointees from the session hall. In the subsequent session of the Council on
March 14, 1989, petitioner and his co-appointees were formally excluded from
the session hall with sixteen (16) councilors voting for such exclusion and
none against it, with the rest of the Council members abstaining.

The records show that respondent Martinez went through the legal
formalities or standard procedure prior to her appointment to the vacated
position subject of this controversy.

Thus, on November 4, 1988, nine out of the eleven incumbent LP
Councilors in the City Council endorsed the appointment of respondent per their
resolution. This resolution was
forwarded to the Office of the Chairman of the Liberal Party, Manila Chapter.

On March 1, 1989, aforesaid Chairman, in turn, nominated
respondent for appointment per his letter – nomination to President Corazon
Aquino thru the Secretary of Local Government. On March 8, 1989, Senate President Jovito Salonga as National Head of
the Liberal Party was furnished with a copy of this letter – nomination.

On March 13, 1989, Congressman Leonardo Fuguso as President of
the LP Third District Chapter also nominated respondent to National President
Salonga of the Party. President
Salonga, in turn, nominated respondent to Secretary Luis Santos of the
Department of Local Government pursuant to Section 50 of the Local Government
Code.

On March 17, 1989, Secretary Santos, acting for the President,
issued an appointment to respondent.

Then on March 21, 1989, the first session day after respondent’s
appointment, the City Council, by a vote of twenty-four members in favor with no member opposing, recognized
her as member of said Council.

Finally, the Presiding Officer of the City Council directed its
Secretariat to include the name of respondent in the payroll of the City Council.

Respondent thus assumed and performed her duties as Councilor for
the Third District of Manila until the restraining order of the Court issued on
April 20, 1989 was received by respondent.

This petition now seeks to annul the appointment of respondent
Martinez and to declare petitioner to be the holder of the position of
Councilor in place of deceased Saturnino Herrera.

Petitioner anchors his appeal on the following grounds:

1. The Secretary of the
Department of Local Government, in appointing respondent Martinez on March 17,
1989, violated the election ban on appointments under Res. No. 2054 of the
Comelec dated December 7, 1988 since her appointment was not cleared for
exemption from the election ban and, therefore, the same was made beyond and in
excess of the Secretary’s authority and by reason of which, the appointment is
null and void.

2. Respondent Martinez is
not a member of the Liberal Party and cannot be appointed to the position of
Councilor, a vacancy created by the death of a member of said Party.

3. Petitioner’s
appointment is valid, complete and beyond recall.

4. Petitioner is entitled
to the position held by respondent.

Respondent, on the other hand, argues:

1.  Petitioner misled the
Court in claiming that he has a right to the contested position. His appointment was indorsed only by the
Treasurer of the LP Chapter, 3rd District of Manila. The Treasurer’s indorsement was not known nor authorized by the
head of the LP in said district. Neither was the nomination brought to the attention of the Chairman of
the LP, Manila Chapter. The proper
procedure was not observed by
petitioner. The unauthorized action of
petitioner cannot be cured or ratified by an alleged resolution of 80% of ward
leaders and which resolution was adopted long after the appointment of
petitioner. Hence, petitioner’s
appointment was void from the very beginning for lack of authority of the
Treasurer who nominated him.

Contrary to petitioner’s claim, respondent also contends that the
former has not assumed office; neither has he exercised or performed the
functions of the position because he was prevented from doing so by the
outright refusal of the City Council to recognize his appointment.

2. Petitioner has no right to the
position and for which reason, he lacks the legal personality to institute the
present petition for quo warranto, mandamus and prohibition.

While petitioner claims that he took his oath on February 9, 1989 which was a calculated move to avoid the
election ban on appointments, he used a Residence Certificate issued on
February 22, 1989 only. This means that
he could not have taken his alleged oath before the issuance of the residence
certificate.

3. The appointment of respondent possesses all the requisites of a
valid appointment according to legal and regular procedures. She avers that her appointment was indorsed
by nine out of eleven LP incumbent councilors and that her nomination was
favorably indorsed by the Liberal Party hierarchy from the Chairman of the Third
District, thru the Chairman of the Manila Chapter up to the National President
of the LP; and, that she was duly appointed on the basis of the series of
nominations of the LP hierarchy.

4. The appointment of respondent is
not covered by the election ban contemplated under Sec. 261 (g) of the Omnibus Election Code.

The case for respondent appears meritorious. Respondent had gone through the regular and
standard nomination process which had been officially acknowledged by the
Secretary of Local Government.

Sec. 50 of the Local
Government Code specifically provides:

“In case of permanent vacancy in the sangguniang panlalawigan,
sangguniang panglungsod, sangguniang bayan, or sangguniang barangay, the
President of the Philippines, upon recommendation of the Minister of Local
Government, shall appoint a qualified person to fill the vacancy in the
sangguniang panlalawigan and sangguniang panglunsod of highly urbanized and
component cities; the governor, in the case of sangguniang bayan members; or
the city or municipal mayor, in the case of sangguniang barangay
members. Except for the
sangguniang barangay, the appointee shall come
from the political party of the sangguniang
member who caused the vacancy, and shall
serve the unexpired term of the vacant office.”
(Underscoring supplied)

Since deceased Councilor
Saturnino Herrera who had caused the contested vacancy comes from the
Liberal Party, it follows that his mode of
replacement should be governed by the standing rules of the aforenamed
Party.

Thus, We quote the pertinent sections of the
1967 Liberal Party Revised Rules (1971 Reprint furnished by the Comelec):

“Rule 32. Approval of Resolution of District, Provincial, City or Municipal Government. Resolutions adopted by provincial,
district, city or municipal committee shall not be final unless approved by the
National Directorate, the Executive Committee, or the Party President.”
(Under Chapter III on The Manila City Special Rules)

Thus, too, Section
A (3) of Rule 10 of the Liberal Party Rules (on the Powers of the National
Directorate) provides:

“3) To choose and proclaim official candidates of
the Party for provincial positions, and whenever necessary, convenient or
proper, also for Municipal and City positions, in accordance with the
requirements of these Rules.”

Conformably with the aforequoted provisions of the Liberal Party
Rules, all resolutions, which may include resolutions nominating replacements
for deceased city councilors, should first
be approved either by the National Directorate, the Executive Committee or the
Party President in order that said resolutions could be considered final and
valid.

Logically and by analogy, the National Directorate or in its
stead, the Executive Committee or the Party President may choose and nominate
the party’s proposed appointee, from among its members, to the position vacated
by a deceased city councilor.

Correspondingly, We quote hereunder the body of the letter –
nomination of the then LP National President Jovito R. Salonga explicitly
manifesting the full support of the party hierarchy for herein respondent. Thus –

“I hereby nominate in behalf of the Liberal Party of which I
am the incumbent President Ms. Maria Teresita Herrera-Martinez, to take the
place of Councilor Saturnino C. Herrera of the Liberal Party who passed away on
October 14, 1988.

“Ms. Martinez is likewise the recommendee of the Liberal
Party, Manila Chapter headed by former Assemblyman Lito Atienza. She is also recommended by Congressman
Leonardo Fuguso. Please be advised that
the Liberal Party, under which
the late Councilor Saturnino C. Herrera
was elected, has no nominee to the
vacated position other than Ms. Maria
Teresita Herrera-Martinez. This is also to serve notice that no other person is authorized
to nominate any LP member to any vacancy
in the City Council of Manila.”
(Underscoring supplied)

Acting on the solid recommendation
of the LP hierarchy, from the district level up to the national level, the
Secretary of Local Government correspondingly issued the letter-appointment to
respondent Martinez, the pertinent portion of which reads as follows:

“Upon the recommendation of the
President of the Liberal Party and the
Chapter President of the Liberal Party,
3rd District of the City of Manila, and
pursuant to the provisions of existing laws, you are hereby appointed member of
the Sangguniang Panglungsod, City of Manila, Vice Councilor Saturnino Herrera.”
(Underscoring supplied)

Notably, respondent’s appointment was accepted or recognized by
the City Council in its session of March 21, 1989. The minutes of said session reveal that twenty-four (24)
councilors voted to accept the appointment of respondent and not a single
member objected to or opposed the acceptance. Right then and there, the Presiding Officer announced the acceptance of
respondent’s appointment and the Chair directed the Secretariat to include her
name as a new member of the City Council.

In the case of petitioner, however, a very different scenario
took place. The letter dated February
9, 1989 of Secretary Luis Santos informing Vice-Mayor and Presiding Officer
Lacuna that he had appointed petitioner and three other appointees, carried a
request that due recognition be accorded to them, particularly petitioner as
member of the Council. Petitioner and
the other appointees, as per minutes of the Council’s session of March 9, 1989, were excluded from the session hall
by reason of the seconded motion of the Majority Floor Leader. In the subsequent session of the Council on
March 14, 1989, petitioner and his co-appointees were formally excluded
from the session hall when sixteen (16) members of the Council voted in favor
of their exclusion and no one against it. Significantly, such exclusion meant that the City Council refused to
recognize their appointments.

As a conclusive confirmation of the non-recognition of
petitioner’s defective appointment, the Secretary of Local Government recalled
the former’s appointment in his
letter of March 17, 1989. The letter thus reads:

“Dear Mr. Ong:

“In connection with our letter
of February 9, 1989, appointing you as Sangguniang Panglunsod member of the
City of Manila as a consequence of the death of Councilor Saturnino C. Herrera,
please be informed that we are recalling said appointment it appearing that you were not recommended
for the position by the appropriate leader of the Liberal Party as mandated by the sub-section b(1), Rule XIX
of the Rules and Regulations Implementing
the Local Government Code (Batas Pambansa Blg. 337).”
(Underlining supplied)

Both petitioner and respondent have invoked the election ban
imposed under Sec. 261 (g) of the Omnibus Election Code. The election ban covered the period from
February 11 to March 27, 1989 by reason of the Barangay election held on March
28, 1989. Both parties have capitalized
on the prohibitive provision for the purpose of having their respective
appointments declared illegal or null and void.

Sec. 261 (g) of the
Omnibus Election Code provides thus:

“(g)    Appointment
of new employees, creation of new position, promotion, or giving salary
increases. – During the period of
forty-five days before a regular election and thirty days before a special
election, (1) any head, official or appointing
officer of a government office, agency or instrumentality, whether national or
local, including government-owned or controlled corporations, who appoints or
hires any new employees, whether provisional, temporary or casual, or creates and fills
any new position, except upon prior authority of the Commission. The Commission shall not grant the authority
sought unless, it is satisfied that the position to be filled is essential to
the proper functioning of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the election.

“As an exception
to the foregoing provisions, a new employee may be appointed in case of urgent
need: Provided, however, That notice of
the appointment shall be given to the Commission within three days from the date
of the appointment. Any appointment or
hiring in violation of this provision shall be null and void.”

The aforequoted provision does not apply to both assailed
appointments because of the following reason:

The permanent vacancy for councilor exists and its filling up is
governed by the Local Government Code while the appointment referred to in the
election ban provision is covered by the Civil
Service Law.

For having satisfied the formal requisites and procedure for
appointment as Councilor, which is an official position outside the
contemplation of the election ban, respondent’s appointment is declared valid.

The issue on the alleged discrepancy between the dates of
petitioner’s oath and his residence certificate need not be tackled now because
it will not anymore affect the recalled appointment of petitioner. If ever, the matter casts a doubt on
petitioner’s credibility and honesty.

WHEREFORE, the petition is hereby DISMISSED, and the
temporary restraining order is correspondingly LIFTED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz,
Feliciano, Gancayco, Padilla, Cortes, Grino-Aquino, Medialdea, and Regalado, JJ., concur.

Bidin and Sarmiento, JJ., on
leave.