Court grants Preliminary Injunction, prevents Samar Governor from implementing AO 13-002

By EMY C. BONIFACIO, Samar News.com
September 23, 2010

CATBALOGAN, Samar  –  Judge Clemens, Branch 31 Presiding Judge, resolved affirmatively the motion of Hon. Noel Sermense and four other Board Members (petitioners) for the issuance of Preliminary Injunction to enjoin Samar Governor Sharee Ann T. Tan, et.al. (respondents) from implementing or executing the Appropriation Ordinance No. 13-002, series of 2010 approving the Annual Budget for FY 2010 of the Province of Samar. The seven-page decision was released on September 20, 2010, in time for the expiration of the Temporary Restraining Order on the same issue, which lasted for twenty days since August 31, 2010.

The substantial testimonies of Samar Provincial Board Secretary Alfredo C. Delector and Provincial Assistant Accountant Francasio Detosil together with the documentary evidences presented by the petitioners proved to be sufficient basis for the issuance of the writ of preliminary injunction. “The injunction is proper to restrain the threatened enforcement of a law which appears to be invalid”, the decision clarifies.

The ruling anchored on the still undisputed testimonies of Mr. Alfredo C. Delector that has brought clout on the Appropriation Ordinance No. 13-002, approved on August 26, 2010, as being passed irregularly.

The court maintained that the significance of treating the proposed budget of the Province of Samar was underscored, considering that it was simply treated under the item for “other matters”, instead of being specifically included in the agenda for the regular session.  Article 415 of the Rules and Regulations Implementing the Local Government Code of 199 provides that budget deliberations should be a primary business during sessions.  In this instance, it was clearly violated, the court specifies.

Moreover, it has observed that the oral recall of the Samar proposed budget and Annual Investment Plan from the Committee on Finance and Appropriation and Committee on Laws and Legal matters was highly irregular and in violation of Section 16, Rule IV, of the Rules and Procedures of the Sangguniang Panlalawigan. The rule provided that the recall should be made through a written petition of the majority of all the members. Mr. Delector’s testimony confirmed that there was no written petition and that there was no valid suspension of the rules under Section 21, Rule XI of the rules and Procedure of the same Body.

Similarly, Sections 4 and 7, Rule VII of the same Rules of Procedure was violated when the proposed budget was not called for second reading, which is mandatory under that provision.

Accordingly, the rights of some of the Board Members to take proper notice of the proceedings and to due process were denied since the said Budget appears not to have been approved by the majority of all the members of the Sangguniang Panlalawigan. It was only approved by six (6) members including the Vice-Governor as evidenced by the signatures affixed to the said ordinance. Appropriation Ordinance 13-002 is classified under Article 107 of the Rules and Regulations Implementing the Local Government Code of 1991. As such, it needed the approval of the majority of all the members of the Sangguniang Panlalawigan of Samar or at least eight (8) members of that August Body.

The urgency of issuing a Preliminary Injunction was determined after hearing sufficient and convincing evidences from the witnesses. Mr. Detosil testified that there were already acts done, such as that checks had already been prepared for the proposed adjustment of salaries, to implement the questioned budget.  The injunction was released in order for the respondents to refrain from the continuance in the performance of the acts complained for a limited period of time and prevent from serious damage.

It may be recalled that during the start of the court proceedings that lasted until 8:00 in the evening on September 17, Judge Clemens ruled negatively on the motion of respondents for him to inhibit from hearing the said case. The petition was based on allegations that Clemens is publicly identified to be a political ally, having worked as an executive assistant and was recommended to the position as Assistant Prosecutor by Mayor Reynaldo Uy of Calbayog City. On the grounds of Utang na Loob, the petitioners believed that Judge Clemens could not act with impartiality on the case. However, Clemens refuted all these allegations stressing that Mayor Uy is not a party to the case and that never in his entire life as prosecutor, was he accused for playing partisan politics.