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[G.R. No. 148925.December 11, 2001]
MAYOR BIRUAR vs. HON. NUR MISUARI et al.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated DEC 11 2001.
G.R. No. 148925 (Mayor Esmael Biruar vs. Hon Nur Misuari, in his capacity as Regional Governor of the Autonomous Region in Muslim Mindanao [ARMM], Abubakar Biruar and the Land Bank of the Philippines.)
This petition for certiorari, prohibition and mandamus assails the designation by Governor Nur Misuari of Abubakar Biruar as Officer-in-Charge (OIC) in the Office of the Municipal Mayor of Parang, Maguindanao, and seeks the release of the Land Bank of the Philippines of the funds of the Municipality of Parang to petitioner.
The facts are as follows:
Petitioner Esmael Biruar ran for the position of municipal mayor in the Municipality of Parang, Maguindanao in the 14 May 2001 elections.On 10 June 2001, the Municipal Board of Canvassers proclaimed him as the duly elected mayor.He took his oath of office, assumed the position of, and began discharging the duties as municipal mayor effective noontime of 30 June 2001.
Talib Abo, one of the mayoralty candidates, filed a motion to annul the proclamation of herein petitioner in SPC No. 01-280 ("Talib Abo vs. The Municipal Board of Canvassers of Parang, Maguindanao") on the ground that the proclamation was based on incomplete returns, that is, from the results in thirty (30) precincts out of one hundred and thirteen (113) precincts in Parang.On 29 June 2001, the First Division of the Commission on Elections (COMELEC), issued an order annulling the proclamation of petitioner as prayed for by Talib Abo.
Petitioner filed a motion for reconsideration alleging that the action of the COMELEC was done without notice and hearing, and without him being impleaded as party respondent.Petitioner further maintained that he was not furnished a copy of the COMELEC order.
On 09 July 2001, while petitioner's motion for reconsideration was still pending resolution by the COMELEC, Governor Nur Misuari designated respondent Abubakar Biruar as OIC in the Municipality of Parang.Petitioner received a copy of the order of Governor Misuari on 11 July 2001.The Land Bank of the Philippines, depository of the monthly Internal Revenue Allotment (IRA) of the Municipality of Parang, was promptly notified of private respondent's designation as OIC.Petitioner, in the meantime, asked for the reconsideration of the order of Governor Misuari but allegedly, the latter failed to act thereon.
On 06 and 16 July 2001, petitioner requested the Land Bank to release to him the IRA of Parang to defray the salary of the municipalities around one hundred and fifty (150) employees.The bank refused on the ground that another claim was made by the designated OIC.Instead, the bank requested petitioner to substantiate his claim to the office by submitting a certification either from the COMELEC or the DILG-ARMM.This petitioner failed to do.
Hence, the present recourse where petitioner avers that:
(1) Governor Nur Misuari has no authority to appoint an OIC for the Municipality of Parang as there was no vacancy in the position of municipal mayor.
(2) the annulment of his proclamation as municipal mayor by the COMELEC was in violation of the due process clause of the Constitution as he was never impleaded in the case filed by Talib Abo and neither was there notice and hearing prior to the annulment of his proclamation;
(3) his proclamation as municipal mayor stands valid and binding pending the resolution of his motion for reconsideration before the COMELEC; and
(4) the refusal of Land Bank to release to him the IRA of the municipality paralyzed the operations of the municipal government and caused prejudice to the employees who have not been receiving their salaries.
In the Court's resolution, dated 31 July 2001, respondents were required to comment on the petition within ten (10) days from notice.
In his comment, Governor Misuari alleged that petitioner is not bereft of any plain, speedy and adequate remedy in the ordinary course of law to justify the filing of the petition before this Court.He pointed out that petitioner's motion for reconsideration of the order annulling his proclamation is in fact pending with the COMELEC.Further, public respondent maintained that his appointment of Abubakar Biruar as OIC for the Municipality of Parang was done pursuant to Article 537 of the Rules and Regulations Implementing Muslim Mindanao Autonomy Act No. 25.He finally alleged that the vacancy in the position was created when the COMELEC's First Division declared petitioner's proclamation void because it was based only in the results from thirty (30) out of one hundred and thirteen (113) precincts.
For this part, respondent Abubakar Biruar justified his appointment by citing the authority of the Regional Governor to fill any vacancy in the position pursuant to Article 537 of the Rules and Regulation Implementing Muslim Mindanao Autonomy Act No. 25.
Respondent Land Bank averred that as the official depository of government funds, it is its duty to exercise extreme caution in releasing the IRA, especially in face of the conflicting claims for recognition as authorized representative/signatory for the Municipality of Parang by petitioner Esmael Biruar and private respondent Abubakar Biruar.Respondent bank alleged that it had already requested the OIC for COMELEC Region XII for an official advice on the matter but no answer has yet been made by the latter.The bank manifested that it shall abide by any order the Supreme Court will issue as to whom the IRA should be released.
The petition must fail.
At the outset, the Court finds premature the filing of the instant petitioner considering that the COMELEC has not yet resolved petitioner's motion for reconsideration of the the COMELEC's ruling annulling his proclamation as mayor of Parang.It is beyond the power of this Court to make any ruling on the matter at the moment.
With respect to the authority of respondent Governor to appoint an OIC in the Municipality of Parang, Rule XLI 1 Rules and Regulations Implementing Muslim Mindanao Autonomy Act No. 40, An Act Amending Section 41, Chapter 2, Title Two, Book 1, of the Local Government Code of the Autonomous Region of Muslim Mindanao, and for Other Purposes. of the Rules and Regulations Implementing the Local Government Code of the Autonomous Region in Muslim Mindanao, 2 Muslim Mindanao Autonomy Act No. 25. particularly Article 537 thereof provides:
Art. 537.Temporary Vacancy in case of failure of election or partial proclamation declared by the Commission on [Elections].
1. Temporary Vacancy due to failure of election.--The Regional Governor shall designate Officer-In-Charge for the Office of Governor, Vice-Governor, Mayor, Vice-Mayor, Sangguniang Panlalawigan, Sangguniang Panglungsod and Sangguniang Bayan upon the recommendation of the Regional Secretary of the Department of Interior and Local Government.Provided, that any designee has not been a candidate for any elective position during the preceding election; and that the OIC designate possesses all the qualifications and none of the disqualification prescribed for elective office.
2. Temporary Vacancy due to [non] proclamation of all Local Elective Officials.--The Regional Governor shall designate Officer-in-Charge for the Office of the Governor, Vice-Governor, Mayor, Vice-Mayor, Sangguniang Panlalawigan, Sangguniang Panglungsod, Sangguniang Bayan upon the recommendation of the Regional Secretary of the Department of Interior and Local Governments: Provided, That any designee has not been a candidate for any elective position during the recently concluded elections, and the OIC designate possesses all qualifications and none of the disqualification prescribed for elective office.
3. Temporary Vacancy due to partial proclamation.--The rule on automatic succession prescribed under Section 41, Chapter 2, Title II, Book I of the ARMM Local Government Code shall be strictly observed in filling up any temporary vacancy arising therefrom.
It is clear from the aforequoted provisions that it is within the authority of respondent Governor of the ARMM to fill up any temporary vacancy in the position of mayor for the Municipality of Parang.
On the question of whether or not there is a vacancy in the position of mayor of Parang, it is of record that petitioner's proclamation as mayor was declared null and void by the COMELEC in its order, dated 29 June 2001, because the certificate of proclamation in his favor was issued on the basis of the results in thirty (30) out of the one hundred and thirteen (113) precincts.The COMELEC declared that the proclamation was void because it was based on incomplete returns where the uncanvassed ones would affect the results of the election. 3 Rollo, at 33.The COMELEC's order, which is still subject of a motion for reconsideration, is valid, it being a settled rule that an incomplete canvass is illegal and cannot be made as the basis of a subsequent proclamation. 4 See Caruncho III vs. Commission on Elections, 315 SCRA 693 (1999).Resultantly, a temporary vacancy exists in the position of mayor of Parang which the ARMM Governor may fill up.
Anent the contention of petitioner that his timely filing of a motion for reconsideration suspends the execution for implementation of the COMELEC order, Section 2, Rule 19, of the COMELEC Rules of Procedure states:
Sec. 2 Period for Filing Motions for Reconsideration.--A motion to reconsider a decision, resolution, order or ruling of a Division shall be filed within five (5) days from the promulgation thereof.Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order and ruling. 5 Emphasis supplied
The foregoing provision explicitly provides that the motion for reconsideration suspends the execution for implementation of the COMELEC decision, resolution, order and ruling only if such motion for reconsideration is not pro-forma.Unfortunately for petitioner, the Court at this time cannot take cognizance of the issue of whether the motion for reconsideration he has filed, which is still pending with the COMELEC, is pro-forma or not.The Court cannot interfere with the functions of the COMELEC and subject a pending action before it to review.
Finally, Article 537 (h), Rule XLI of the Rules and Regulations Implementing the Local Government Code of the Autonomous Region in Muslim Mindanao provides that the Officer-in-Charge designated by the Regional Governor shall hold office until such time that the duly elected officials shall have been proclaimed and qualified.Hence, insofar as the Land Bank of the Philippines is concerned, it could only release the municipality's IRA to respondent Abubakar Biruar, the OIC appointed by respondent Governor.It has no authority to release the IRA to petitioner in view of the order of the COMELEC annulling petitioner's proclamation.
Considering the foregoing, the petition is DISMISSED .Puno and Buena, JJ., are abroad on official business.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
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