[ G. R. No. L-6225. January 10, 1953 ] 92 Phil. 456
[ G. R. No. L-6225. January 10, 1953 ]
ARSENIO H. LACSON, PETITIONER, VS. HON. MARCIANO ROQUE, AS ACTING EXECUTIVE SECRETARY, HON. BARTOLOME GATMAlTAN, AS VICE-MAYOR OF MANILA, AND COL. DIONISIO OJEDA, AS ACTING CHIEF OF POLICE OF MANILA, RESPONDENTS. D E C I S I O N
TUASON, J.:
The petitioner, Arsenio H. Lacson, Mayor of the City of Manila, has been suspended from office by the President and has brought this original action for prohibition contesting the legality of the suspension. Marciano Roque, Acting Executive Secretary, and Dionisio Ojeda, Chief of Police of Manila, who are said to have threatened to carry out the President’s order and Bartolome Gatmaitan, the Vice-Mayor who is performing the duties of the office of mayor, are made defendants. The salient facts alleged in the application, not denied by the respondents, are as follows: On October 20, 1952, following the acquittal of Celestino C. Juan, Deputy Chief of Police, in a criminal prosecution for malversation of public property instituted at the instance of Mayor Lacson, the petitioner made a radio broadcast in which he criticized the court’s decision stating, it is alleged: “I have nothing but contempt for certain courts of Justice. * * . I tell you one thing (answering an interrogator), if I have the power to fire Judge Montesa (the trial Judge) I will fire him for being incompetent, for being an ignorant ... an ignoramus.” Thereafter, Judge Montesa, at a public meeting of the Judges of Courts of First Instance of Manila submitted to the consideration of his colleagues the question of whether Mayor Lacson’s remarks were contempt of court. A committee of judges, which was appointed to study the question, reported that it was not free to state whether contempt proceedings if instituted would prosper. The Committee believed that Judge Montesa was the one most competent to decide upon the action that should be taken. In the meanwhile, on October 23, Judge Montesa wrote the Secretary of Justice requesting that a special prosecutor be designated to handle the case for criminal libel which he intended to file against the mayor. He gave as reasons for his request that “whatever blunders the Mayor had committed, the same was due to an advice given him by his legal adviser, the city fiscal,” and that it would be “difficult to expect that he would be willing to move against him or act in a manner that would put him in a bad light with the mayor.” On October 24, in Special Administrative Order No. 235, marked RUSH, the Secretary of Justice designated Solicitor Martiniano P. Vivo of the Solicitor General’s Office “to assist the City Fiscal of Manila in the investigation of the complaint of Judge Agustin P. Montesa against Mayor Arsenio H. Lacson, to file whatever criminal action the evidence may warrant and to prosecute the same in court.” On the following day, Judge Montesa filed his projected complaint for “libel and contempt” with the City Fiscal which was numbered 27909. This complaint in the ordinary routine of distribution of cases in the City Fiscal’s Office should have corresponded to Assistant Fiscal Jose B. Jimenez. Consequently upon Solicitor Vivo’s designation, City Fiscal Angeles designated Assistant Fiscals Jimenez and also Hermogenes Concepcion, Jr. to represent him and to collaborate with the Solicitor from the Bureau of Justice. Solicitor Vivo conducted a preliminary investigation in the Office of the Solicitor General without the presence of either of the Assistant Fiscals assigned to the case, and sent out subpoenas in his name and upon his signature. And having completed the preliminary examination, on October 30 he docketed in the Court of First Instance a complaint for libel against Mayor Lacson, signed and sworn to by Judge Montesa as complainant. At the foot of. the complaint both Assistant Fiscal Hermogenes Concepcion, Jr. and Solicitor Vivo certified that “we have conducted the preliminary investigation in this case in accordance with law” although Fiscal Concepcion had taken no part in the proceedings. On Octoper 31, the day following the filing of the above complaint, the President wrote the Mayor a letter of the following tenor:
“In view of the pendency before the Court of First Instance of Manila criminal case No. 20707 against you, for libel, and pursuant to the present policy of the administration, requiring the suspension of any local elective official who is being charged before the courts with any offense involving moral turpitude, you are hereby suspended from office effective upon receipt hereof, your suspension to continue until the final disposition of the said criminal case.”
And notified of the suspension, Vice-Mayor Bartolome Gatmaitan entered upon the duties of the office in place of the suspended city executive. Allegations have been made vigorously attacking the form and legality of Solicitor Vivo’s designation and of the procedure pursued in the conduct of the preliminary investigation. The objections are at best inconclusive of the fundamental issues and will be brushed abide in this decision. It will be assumed for the purpose of our decision that the assailed designation and investigation were regular and legal, and we will proceed at once to the consideration of the validity of the disputed suspension. By Section 9 of the Revised Charter of the City of Manila (Republic Act No. 409), “the Mayor shall hold office for four years unless sooner removed.” But the Charter does not contain any provision for this officer’s removal or suspension. This silence is in striking contrast to the explicitness with which Republic Act No. 409 stipulates for the removal and suspension of board members and other city officials. Section 14 specifies the causes for which members of the Municipal Board may be suspended and removed, to wit: the same causes for removal of provincial elective officers, and section 22 expressly authorizes the removal—for cause—of appointive city officials and employees by the President or the Mayor depending on who made the appointments. Nevertheless, the rights, duties and privileges of municipal officers do not have to be embodied in the charter, but may be regulated by provisions of general application specially if these are incorporated in the same code of which the city organic law forms a part. Such is the case here. If the Manila City Charter itself is silent regarding the suspension or removal of the Mayor, section 64(b) of the Revised Administrative Code does confer upon the President the power to remove any person from any position of trust or authority under the Government of the Philippines for disloyalty to the Republic of the Philippines. There is no denying that the position of mayor is under the Government of the Philippines and one of trust and authority, and comes within the purview of the provision before cited. The intent of the phrase “unless sooner removed” in Section 9 of the Manila Charter has been a topic of much speculation and debate in the course of the oral argument and in the briefs. This phrase is not uncommon in statutes relating to public offices, and has received construction from the courts. It has been declared that “Power in the appointing authority to remove a public officer may be implied where to statutory specification of the term of office are added the words ‘unless sooner removed.” (43 Am. Jur., 30.) It is obvious from the plain language of this statement that the respondents can hardly comfort from the phrase in question as repository of a hidden or veiled authority of the President. Implying power of the appointing agency to remove, the natural inference is that the words have exclusive application to cases affecting appointive officers; so that, where the officers involved are elective, like that of mayor of the City of Manila, they have no other meaning than that the officer is not immune to removal, and the whole clause is to:be interpreted to read, “The Mayor shall hold his position for the prescribed term unless sooner ousted as provided by other laws,” or something to that effect. The Congress is presumed to have been aware of Section 64 (b) of the Revised Administrative Code and to have in mind this section and other removal statutes that may be enacted in the future, in employing the phrase “unless sooner removed.” Another conclusion, we are impelled to say, is that under existing legislation, the Manila City Mayor is removable only for disloyalty to the Republic. For, as will be shown, the express mention of one cause or several causes for removal or suspension excludes other causes. Four Justices who join in this decision do not share the view that the only ground upon which the expelled is disloyalty. The Chief Justice, Mr. Justice Padilla and Mr. Justice Jugo, three of the Justices referred to, reason that, as the office of provincial executive is at least as important as the office of mayor of the City of Manila, the latter officer, by analogy, ought to be amenable to removal and suspension for the same causes as provincial executives, who, under section 2078 of the Revised Administrative Code, may be discharge for dishonesty, oppression, or misconduct in office, besides disloyalty. Even so, these members of the Court opine that the alleged offense for which Mayor Lacson has been suspended is not one of the grounds just enumerated, and are in complete agreement with others of the majority that the suspension is unwarranted and illegal. Mr. Justice Pablo also believes that the suspension was illegal but wants to have it understood that he bases his concurrence mainly on the strength of the ruling in the case of Cornejo vs. Naval, (54 Phil., 809), of which we will speak more later. The contention that the President has inherent power to remove or suspend municipal officers is without doubt not well taken. Removal and suspension of public officers are always controlled by the particular law applicable and its proper construction subject to constitutional limitations. (2 McQuillen’s Municipal Corporations [Revised], section 574.) So it has been declared that the governor of a state, (who is to the state what the President is to the Republic of the Philippines), can only remove where the power is expressly given or arises by necessary implication under the Constitution or statutes. (43 Am. Jur., 34.) There is neither statutory nor constitutional provision granting the President sweeping authority to remove municipal officials. By Article VII, Section 10, paragraph (1) of the Constitution the President “shall * * * exercise general supervision over all local governments,” but supervision does not contemplate control. (People vs. Brophy, 120 P., 2nd., 946; 49 Cal. App., 2nd., 15.) Far from implying control or power to remove, the President’s supervisory authority over municipal affairs disqualified by the proviso “as may be provided by law,” a clear indication of constitutional intention that the provision was not to be self-executing but requires legislative implementation. And the limitation does not stop here. It is significant to note that Section 64 (b) of the Revised Administrative Code in conferring on the Chief Executive power to remove specifically enjoins that the said power should be exercised conformably to law, which we assume to mean that removals must be accomplished only for any of the causes and in the fashion prescribed by law and the procedure. Then again, strict construction of law relating to suspension and removal, is the universal rule. The rule is expressed in different forms which convey the same idea: Removal is to be confined within the limits prescribed for it; The causes, manner and conditions fixed must be pursued with strictness; Where the cause for removal is specified, the specification amounts to a prohibition to remove for a different cause; etc., etc. (Mechem on the Law of Offices and Officers, p. 286; 2 McQuillen’s Municipal Corporations [Revised], section 575; 43 Am. Jur., 39.) The last statement is a paraphrase of the well-known maxim Expressio unius est exclusio alterius. The reason for the stringent rule is said to be that the remedy by removal is a drastic one (43 Am. Jur., 39) and, according to some courts, including ours (Cornejo vs. Naval, supra), penal in nature. When dealing with elective posts, the necessity for restricted construction is greater. Manifesting jealous regard for the integrity of positions filled by popular election, some courts have refused to bring officers holding elective offices within constitutional provision which gives the state governor power to remove at pleasure. Not even in the face of such provision, it has been emphasized, may elective officers be dismissed except for cause. (62 C. J. S., 947.) It may be true, as suggested, that the public interest and the proper administration of official functions would be best served by an enlargement of the causes for removal of the mayor, and vice versa. The answer to this observation is that the shortcoming is for the legislative branch alone to correct by appropriate enactment. It is trite to say that we are not to pass upon folly or wisdom of the law. As has been said in Cornejo vs. Naval, supra, anent identical criticisms, “if the law is too narrow in scope, it is for the Legislature rather than the courts to expand it.” It is only when all other means of determining the legislative intention fail that a court may look into the effect of the law; otherwise the interpretation becomes judicial legislation. (Kansas ex rel. Little Atty., Gen. vs. Mitchell, 70 L. R. A., 306; Dudly vs. Reynolds, 1 Kan., 285.) Yet, the abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove. In consonance with the principles before stated, we are constrained to conclude that the power of the President to remove or suspend the Mayor of the City of Manila is confined to disloyalty to the Republic or, at the most, following the opinion of three of the subscribing Justices, for the other causes stipulated in Section 2078 of the Revised Administrative Code, and that the suspension of the petitioner for libel is outside the bounds of express or unwritten law. It needs no argument to show that the offense of libel or oral defamation for which Mayor Lacson being prosecuted is not disloyalty, dishonesty, or oppression within the legal or popular meaning of these words. Misconduct in office is the nearest approach to the offense of libel, and misconduct Mayor Lacson’s offense is, in the opinion of counsel and of some members of the court. Admitting, as we understand the respondents’ position, that the petitioner was not guilty of disloyalty, dishonesty or oppression, yet counsel do contend that the petitioner’s “outburst” against Judge Montesa constituted misconduct in office. Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is misconduct such as affects his performance of his duties as an officer and not such only affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer. (Mechem, supra, section 457.) “It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer, must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office * * *” (43 Am. Jur., 39, 40.) To this effect is the principle laid down in Cornejo vs. Naval, supra. In that case, Cornejo, Municipal President of Pasay, Rizal, had been found guilty of the crime of falsification of a private document and sentenced therefor to one year, eight months, and twenty-one days imprisonment, etc. On the basis of his conviction, the Municipal President had been suspended and administrative charges preferred against him with the Provincial Board, by the Governor. The suspended officer assailed the illegality of the suspension before this court, and this court in a unanimous decision ruled that the suspension was illegal and without effect. The Court prefaced its opinion with the statement that the charge against the municipal officer to be valid cause for suspension or removal “must be one affecting the official integrity of the officer in question.” Making this premise the basis of its investigation, the court concluded that falsification of a private document is not misconduct in office, pointing out that this crime “does not imply that one takes advantage of his official position, inasmuch as corruption signifies corruption in office, and inasmuch of the charge must be one affecting the official integrity of the officer in question.” Judged by the foregoing standard definition of misconduct in office, the alleged libel imputed to the suspended Mayor was not such misconduct even if the term “misconduct in office” be taken in its broadest sense. The radio broadcast in which the objectionable utterances were made had nothing or very little to do with petitioner’s official functions and duties as mayor. It was not done by virtue or under color of authority. It was not any wrongful official act, or omission to perform public concern, tacitly or expressly annexed to his position. Neither can it be said that Mayor Lacson committed an abuse or took advantage of his office. One does not have to be a mayor to make those remarks or to talk on the radio. The use of the radio is a privilege open to anyone who would pay for the time consumed, or whom the owner would allow for reasons of his own. The mere circumstance that the broadcast was transmitted from the City Hall instead of the radio station did not alter the situation. It is the character of the remarks and their immediate relation to the office that are of paramount consideration. It is our considered opinion that the petitioner acted as a private individual and should be made to answer in his private capacity if he committed any breach of propriety or law. The most liberal view that can be taken of the power of the President to remove the Mayor of the City of Manila is that it must be for cause. Even those who would uphold the legality of the Mayor’s suspension do not go so far as to claim power in the Chief Executive to remove or suspend the Mayor at pleasure. Untramelled discretionary power to remove does not apply to appointed officers whose term of office is definite, much less elective officers. As has been pointedly stated, “Fixity of tenure destroys the power of removal at pleasure otherwise incident to the appointing power * * *. The reason of this rule is the evident repugnance between the fixed term and the power of arbitrary removal. * * *” “An inferential authority to remove at pleasure can not be deduced, since the existence of a defined term, ipso facto, negatives such an inference, and implies a contrary presumption, i.e., that the incumbent shall hold office to the end of his term subject to removal for cause.” (State ex rel. Gallaghar vs. Brown, 57 Mo. Apo., 203, expressly adopted by the Supreme Court in State ex rel. vs. Maroney, 191, Mo., 548; 90 S. W., 141; State vs. Grandell, 269 Mo., 44; 190 S. W., 889; State vs. Salval, 450, 2d, 995; 62 C. J. S., 947. Granting now, for the sake of argument, that the President may remove the Mayor for cause, was the Mayor’s alleged crime sufficient legal justification for his suspension? In a limited sense the words “for cause” and “misconduct in office” are synonymous. “For cause,” like “misconduct in office,” has been-universally accepted to mean for reasons which the law and sound public policy recognize as sufficient ground for removal, that is, legal cause, and not merely cause which the appointing power in the exercise of discretion may be deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office and must be restricted to something of a substantial nature directly affecting the rights and interest of the public. (43 Am. Jur., 48.) One court went to the extent of saying that “The eccentric manner of an officer, his having exaggerated notion of his own importance, indulgence in coarse language, or talking loudly on the streets, however offensive, would not warrant any interference with his incumbency. Rudeness of an officer not amounting to illegality of conduct or oppression is not such misconduct as will give cause for removing him from office.” Much discussion, which we consider of little or no importance, has been devoted to the question of whether the power to remove carries with it the power to suspend. The two powers, as has been indicated, are identical and governed by the same principles in their important aspects that have any bearing on the case at bar. Whether decreed as a punishment in itself, or as auxiliary in the proceedings for removal so as to tie the defendant’s hand pending his investigation, suspension ought to be based on the same ground upon which removal may be effected or is sought. (43 Am. Jur., 65.) When exercised as a mere incident to the power to remove, the power to suspend cannot be broader than the power to which it is anciliary. A stream cannot rise higher than its source, as the saying goes. In their effects, the difference between the power to remove and the power to suspend is only one of degree. Suspension is a qualified expulsion, and whether termed suspension or expulsion, it constitutes either temporary or permanent disfranchisement. It is an ad interim stoppage or arrest of an official power and pay. (2 McQuillen’s Municipal Corporations [Revised], section 585). In fact, when the “suspension is to continue until the final disposition” of a criminal prosecution, like the petitioner’s suspension, it might become a virtual removal, considering that in the event of conviction by the trial court the case might drag as long as the remainder of the suspended officer’s term of office, or longer. We believe also that in the field of procedure no less than in that of substantive law the suspension under review is fatally defective No administrative charges have been preferred against the petitioner and none seem to be contemplated. The sole grounds for the suspension, as recited in the President’s order, are “the pendency of criminal case No. 20707 for libel,” and “the present policy of the administration, requiring the suspension of any elective official who is being charged before the courts of any offense involving moral turpitude.” It seems self-evident that if, as must be conceded, temporary suspension is allowed merely so as to prevent the accused from hampering the normal course of the investigation with his influence and authority over possible witnesses, the rule presupposes the existence of administrative charges and investigation being conducted or to be conducted. We are certain that no authority or good reason can be found in support of a proposition that the Chief Executive can suspend an officer facing criminal charges for the sole purpose of aiding the court in the administration of justice. Independent of the other branches of the Government, the courts can well take care of their own administration of the law. An administrative policy or practice not predicated on constitutional or statutory authority can have no binding force and effect in matters not purely political or governmental. Where individual rights, honor and reputation are in jeopardy, it is only law or the Constitution which can give legality to executive actions. It has been shown that nothing in the Constitution, law or decisions warrants the petitioner’s suspension. If policy is to be a guiding factor, and we think it should be, such policy must emanate from the legislative branch, which, under our form of government, is the legitimate policy-making department. The legislative policy, as such policy may be gathered from section 2188 of the Revised Administrative Code, frowns upon prolonged or indefinite suspension of local effective officials. By this section “the provincial governor shall receive and investigate complaints against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office.” It provides that in case suspension has been effected, the hearing shall occur as soon as practicable, in no case later than ten days from the date the accused is furnished a copy of the charges, unless the suspended official on sufficient grounds asks for an extension of time to prepare his defense. The section further warns that “the preventive suspension shall not be for more than thirty days,” and ordains that at the end of that period the officer should be reinstated in office without prejudice to the continuation of the proceedings against him until their completion, unless the delay in the decision of the case is due to the defendant’s fault, neglect or request, and unless in case of conviction the Secretary of the Interior shall otherwise direct. Section 2188 is of relatively recent vintage, and is designed to protect elective municipal officials against abuses of the power of suspension, abuses of which past experience and observation had presented abundant examples. The point we wish to drive home is that, evincing grave concerns for ordinary municipal officials including municipal councilors, as a matter of public policy, it is unreasonable to suppose that the Legislature intended to withhold the same safeguards from the post of mayor of the metropolis and seat of the National Government. On the contrary, in converting the office from appointive to elective, one of the legislative purposes, we venture to say, was to afford the position greater stability as well as to clothe it with greater dignity and prestige. What could be the practical use of having the people choose the city executive to manage the city’s affairs if by the simple expedient of a criminal accusation he could be laid off for the long duration of a criminal prosecution, prosecution which, at long last might, as is not infrequently the case, turn out to be false, malicious, unsubstantial, or founded on a mistaken notion of law or evidence? Let it not be overlooked that criminal accusations are easy to make and take months or years to try and finally decide, and that the filing of such accusations and the time within which they are to be finished are matters over which the accused has no effective control It is not difficult to see that the tenure of office and the incumbent’s rights could easily be overthrown and defeated if.power rested in any authority to suspend the officer on the mere filing or pendency of a criminal accusation, the suspension to continue until the final termination of the trial. The idea seems repugnant to the principles of due process, speedy trial, and simple justice —“principles that are fundamental and eternal.” It will also be noted from section 2188 that it does not only limit the period of preventive suspension, but requires the filing of charges and prompt investigation. Without such express provision, however, it is established by the great weight of authority that the power of removal or suspension for cause can not, except by clear statutory authority, be exercised without notice and hearing. Mere silence of the statute with respect to notice and hearing will not justify the removal of such an officer without knowledge of the charges and an opportunity to be heard. (Mechem, p. 287; 43 Am. Jur., 50-52; 93 C.J., 65, 66; 62 C.J.S., 924; 43 C.J., 666, footnote 83 [e] and cases cited.) It is only in those cases in which the office is held at the pleasure of the appointing power, and where the power of removal is exercisable at its mere discretion, that the officer may be removed without such notice or hearing. (Id.) Not even final conviction of a crime involving moral turpitude, as distinguished from conviction pending appeal, dispenses with the requisite notice and hearing. Final conviction is mentioned in section 2188 of the Revised Administrative.Code as ground for proceeding administratively against the convicted officer but does not operate as automatic removal doing away with the formalities of an administrative hearing. The policy manifested by section 2188 of the Revised Administrative Code, which is a consecrated policy in other jurisdictions whose republican institutions this country has copied, requires speedy termination of a case in which suspension of the accused has been decreed, not only in the interest of the immediate party but of the public in general. The electorate is vitally interested, and the public good demands, that the man it has elevated to office be, within the shortest time possible, separated from the service if proven unfit and unfaithful to its trust, and restored if found innocent. Special proceedings alone, unincumbered by nice technicalities of pleading, practice and procedure, and the right of appeal, are best calculated to guarantee quick result. The petition must be, and the same is granted, without costs. Feria, Pablo and Jugo, JJ., concur.