ACES wins in the Mandamus Case against Gov. Tan

By EMY BONIFACIO, Samar News.com
August 19, 2010

CATBALOGAN CITY  –  RTC Branch 41 Presiding Judge, Sibanah E. Usman, has finally handed down last August 3, 2010 its decision on the petition for the issuance of writ of mandamus filed by representatives of the capitol employees of Samar against former Governor Milagrosa T. Tan.

In a nine-page decision, Governor Tan is directed and commanded to pay unto the petitioners and the more or less One Thousand (1000) provincial employees of Samar, the Productivity Enhancement Incentive (PEI) for the Fiscal Year 2009, amounting to Twenty Five Thousand Pesos (Php 25,000.00) for each and every employee. The PEI was mandated in Ordinance No. 12-28 series of 2010 which was passed by the Sangguniang Panlalawigan on January 7, 2010. The Provincial Government was also obligated to pay the petitioners the amount of Sixty Thousand Pesos (P60,000) as attorney's fees plus the cost of suit.

Based on the case files, the signatories to the petition were Roque L. Limse, Luis I. Padul, Renato B. Basal, Ruel C. Aying, Catalina M. Saizes and Evelyn V. Domingo, who acted on their own and in behalf of all officials and employees of the Provincial Government of Samar. The petitioners are also identified to belong to the core group of the Alliance of Concerned Employees in Samar (ACES). It may be recalled that this same group went into massive protest actions in the later part of 2009 and demanded for good governance from the Tan's administration as well as for the release of the benefits of all employees. The ACES is now an active member of the Multi-Sector Alliance for Transparency and Accountability (MATA-Samar), an anti-corruption organization that forms part of the Philippine Public Transparency and Reporting Project (PPTRP) where Samar Province is a pilot area for its implementation.

The mandamus case was resorted to by the ACES as the most speedy and adequate remedy to demand and receive the PEI benefits as a right and to protect the interests of their colleagues in the service. Inasmuch as the issue at bar is of common and general interest to the 1,000 employees and considering the impracticability for all the employees to act as plaintiffs, the group decided to file a class suit and has contracted the legal services of their counsel to whom they are committed to pay an acceptance fee of P60,000.

The petition alleges that on January 7, 2010, the Sangguniang Panlalawigan of Samar enacted Ordinance No. 12-28, Series of 2010 appropriating the amount of P25 million for the payment of the grant of the Productivity Enhancement Incentive (PEI) for the Fiscal Year 2009 of all provincial government officials and employees of the Province of Samar at P25,000 each, pursuant to DBM Budget Circular No. 2009-5 dated December 15, 2009. Accordingly, the same ordinance was deemed approved pursuant to the provisions of Section 54 (b) of RA 7160 as certified by the Provincial Secretary, Mr. Alfredo C. Delector. The Certification was issued after the governor has failed to either veto or return the said ordinance to the Sangguniang Panlalawigan within the fifteen (15) days period from submission for her approval.

Furthermore, the Provincial Treasurer, Mr. Bienvenido Z Sabenecio Jr. certified for its availability of funds and directed the preparations of the corresponding vouchers and checks for the release of funds at Landbank, Catbalogan Branch. The checks were in the names of treasury personnel Rosita T. Eredia, Wenifreda A. Estremera and Marilyn E. Uy. However, Governor Mila Tan refused to approve and sign the said vouchers and checks when presented to her, notwithstanding the fact that the payment of the subject PEI benefits were authorized under a valid and effective ordinance and funds were available, therefore, her signing is a public ministerial duty.

On the other hand, the defense counsel insists that while it is true that there is an existing ordinance, it is also true that such enactment is without force and effect because it is violative of Sec. 323 of RA 7160 otherwise known as the Local Government code of 1991, thus it is inconsequential whether or not it is deemed approved by the Chief Executive for failure on her part to veto the same within the 15-day reglamentary period. The Governor further denied authorizing the Provincial Treasurer's Office to process the release of the funds or cause the preparation of the checks and had it been done by the treasury personnel, it was on the belief that there was legal basis for it.

The governor's lawyers also defended Tan's failure to sign or approve the cash advance vouchers and checks as dictated by prudence and the law. It is to the respondent's judgment that the SP Ordinance is a General Fund Supplemental Budget which is not authorized under a re-enacted budget. Samar has been operating on a re-enacted 2008 budget since 2009. In fact, the 2010 budget is still subject to the keen review and scrutiny of the new set of legislators.

The contentions of the defense were also reinforced by a DBM ruling that cited in particular Art. 415(a) par. 4 of its IRR, referring to Sec. 323 of the Local Government Code, that there can be no supplemental budget that can be enacted without the regular annual Budget. Thus, the respondent's lawyers believe that their client cannot be forced to sign and approve the vouchers since the act involves the exercise of discretion and judgment. In effect, they do not agree that the respondent can be compelled in a mandamus case.

After a series of hearings, oral arguments and presentation of facts and memoranda, last June 22, 2010, both parties agreed to submit the case for resolution. On the basis of the facts presented, the court ruled on the validity of Ordinance 12-28 duly enacted by the Sanggunaing Panlalawigan and the relief for the payment of P25,000 bonuses for each of the petitioners and other employees of the Province.

The decision anchored on the facts argued and considered that there were certifications issued by the Provincial Secretary declaring the Ordinance as approved; that there was a Certification issued by the Treasurer as to the availability of funds; and that the Ordinance was enacted pursuant to DBM Budget Circular No. 2009-05 dated December 15, 2009.